Would R-88 level the playing field or institute quotas based on race, other factors?

Referendum 88 on the Nov. 5 statewide ballot asks voters to resolve a question: Should Initiative 1000 be approved or rejected?

I-1000, which the Legislature adopted in this year’s session, would allow state and local governments to remedy “documented discrimination or under-representation of disadvantaged groups in public education, employment, and contracting,” according to a summary by the Attorney General’s Office.

The initiative would overturn the Tim Eyman-led Initiative 200 that voters approved in 1998, which prohibits state and local governments from using race, color, ethnicity or national origin in making decisions on university and college admissions, hiring and promotions, and contracting. If voters approve R-88, I-1000 would become law and Washington would join 42 other states that do not ban affirmative action.

April Sims is secretary treasurer of the Washington State Labor Council, AFL-CIO. She’s also co-chair of the Washington Fairness Coalition, the campaign committee urging voters to approve R-88.

“We are working to make sure that we have a level playing field for all in Washington and that all Washingtonians have access to opportunities and fairness when seeking public jobs, government business contracts, and applying to public colleges and universities,” Sims said.

Kan Qiu is a Bellevue resident who owns a software publishing firm and is the primary sponsor of the petition to put R-88 on the ballot.

“I-1000 tries to treat people differently based on different races, and divisiveness is the last thing we want for this country and for this state. People are going to be judged by their skin color again if this is approved,” Qiu said. “The only people who will benefit from this are those in the government; the bureaucrats who are going to be empowered to do all kinds of things.”

Although lawmakers approved the initiative to resurrect affirmative action, it has not taken effect because opponents collected enough signatures of registered voters to place the referendum on the general election ballot.

I-1000 would define affirmative action as a “policy that considers an individual’s race, sex, ethnicity, national origin, age, sensory, mental or physical disability, or veteran or military status, when selecting qualified persons for opportunities.”

“Affirmative action could not be used to impose quotas,” according to the Attorney General’s explanatory statement, which is posted on the Secretary of State’s website.

Opponents of I-1000 disagree with that statement.

Qiu said the wording of Section 3 of I-1000 would enable state and local governments to use quotas without calling them that.

Part of that section defines affirmative action as “achieving goals and timetables, and other measures designed to increase Washington’s diversity in public education, public employment, and public contracting.”

Another part says the state can remedy discrimination against, or under-representation of, disadvantaged groups as documented in a valid disparity study or proven in a court of law. Disparity studies determine if inequities exist in public procurement, contracting and hiring that adversely affect minorities and/or women.

Qiu said the use of “goals and timetables,” combined with disparity studies, is the same thing as quotas.

“If I’m the hiring manager, and the government has found a certain group that needs to be remedied, and I’m set upon with a timetable and goal to fix that disparity, and my (job) reviews are going to be dependent on that, I’m going to follow through and make sure to comply. That’s a quota,” he said.

Martha Choe, a former Seattle City Council member who is co-chair of the Washington Fairness Coalition, and other supporters of I-1000 said it’s repeated throughout the text that quotas would not be allowed.

“There is absolutely nothing to substantiate these false claims that there are quotas,” Choe said.

In April, some legislators expressed concern that I-1000 would wipe out a state law that provides veterans with additional percentages in the scoring of competitive examinations for public employment and promotion. It would be “highly unlikely” that state courts would rule that I-1000 would interfere with that law, according to Hugh Spitzer, a law professor at the University of Washington.

Spitzer, who has co-authored a book on the Washington state constitution, offered his analysis in an April 24 memo to two high-ranking officials of the Attorney General’s Office. He wrote that I-1000 does not conflict with the existing law that provides veterans with a boost on their test scores for jobs and promotion.

Among the flaws in Eyman-led I-200 was that it did not define the prohibition on “preferential treatment,” Spitzer said. I-1000 would define it as “using race, sex, color, ethnicity, national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, and honorably discharged veteran or military status as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for a public education, public employment, or public contracting opportunity.

“Note that the term preferential treatment is defined as using any one of those categories `as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate,’” Spitzer said, adding that veterans currently are selected based on several factors.

John Tymczyszyn, a veteran and Bellevue attorney who specializes in veterans employment law, said I-1000 would override sections of state law that give preference to honorably discharged veterans in public employment. The preference also applies to partners of 100 percent disabled veterans.

“What veterans are giving up is a mandatory veterans preference in employment hiring. What we’re getting is an appointed committee of bureaucrats that will decide which underrepresented group needs help,” said Tymczyszyn, who is legislative director of the Washington State Veterans Bar Association.

The stance of the veterans bar association is to reject R-88.

“There’s no reason for veterans and their families to vote for this if we are giving up a mandatory benefit and what we’re getting is a discretionary benefit that a board or committee may give us,” he added.

Tymczyszyn referred to how I-1000 also would create the Governor’s Commission on Diversity, Equity and Inclusion which would monitor and enforce each state agency’s compliance with the law. It would have at least 25 members, with several of them appointed by the governor.

Supporters and opponents of I-1000 also have clashed over how much authority the Governor’s Commission on Diversity, Equity and Inclusion would have.

The initiative states: “The commission is responsible for planning, directing, monitoring, and enforcing each state agency’s compliance with this act. The commission may propose and oppose legislation and shall publish an annual report on the progress of all state agencies in achieving diversity, equity, and inclusion in public education, public employment, and public contracting.”

When the new law takes effect, the governor would appoint members from the executive branch and “any other agencies or community representatives the governor deems necessary to carry out the objectives of the commission.” The House speaker would appoint two members from that chamber. The lieutenant governor, who presides over the Senate, would appoint two senators. The commission also would have staff, although the number is unclear.

“Under the current law, it’s very clear that it forbids the government from giving preferential treatment based on race and sex,” Qiu said. “There’s not much room for maneuver. But with the new law, that clarity is gone. It’s up to the executive branch to decide everything. The legislators lose their power.”

Choe said the commission would be “advisory” and accountable to the people because its member include statewide elected officials and legislators. The commission would not have authority to make laws. Legislators would not lose power, because they approve bills that become law, she added.

She said it’s “very appropriate” for a commission to oversee, monitor and review a new law.

The sparring over R-88 mirrors the debate in the House and Senate, which approved I-1000 in April by 56-42 and 26-22 (with one senator excused) margins, respectively.

Rep. Jesse Young, R-Gig Harbor, said recently in an email: “I voted against I-1000 in the Legislature and will personally vote to Reject R-88 (which would veto I-1000) because it is a bigoted initiative that promotes racism and division while hiding behind semantics.

“The fact that multiple Democrats broke from their party and voted against I-1000 highlights the point that this initiative is flawed and should have been sent to voters in the first place,” Young added.

One House Democrat — Brian Blake of Aberdeen — voted no. In the Senate, two Democratic senators voted no — Mark Mullet of Issaquah and Tim Sheldon, a Potlatch Democrat who caucuses with the Republican senators.

Rep. Debra Entenman, D-Kent, voted in favor of I-1000 and will vote to approve R-88.

“Historically, in all kinds of disparity studies, you can look at them in health care, you can look at them in housing, you can look at them in finance, and you can see there has been an intentional disenfranchisement of African-American, black people and we need to do something to change that,” Entenman said.

James Drew covers the state Legislature and state government for McClatchy’s Washington papers: The News Tribune, The Olympian, The Bellingham Herald and The Tri-City Herald.