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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 Two years following California's Proposition 209, Washington state embarked upon a similar course. After unsuccessfully trying several times to gain approval of legislation similar to the language used in Proposition 209, Washington state Representative Scott Smith filed his proposal as an initiative. The initiative's key provision stipulated that: The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting (Bruno 1999,1) What became Initiative 200, Washington State Civil Rights Act, differed procedurally from Proposition 209, in that 209 was an amendment to California's state constitution and Initiative 200 proposed a new state statute. In this instance, supporters of the Washington State Civil Rights Initiative (WSCRI) had to garner 179,248 registered voters' signatures in order to require the legislature to either address the issue or require a vote on it by the people. The Washington State Legislature could pass it into law, take no action, or reject it and the initiative would then appear on the November general election ballot, or the legislature could develop an alternative measure to send to the ballot along with the initiative (Bruno 1999, 1). The backers of the initiative were successful in their signature gathering efforts and thus the initiative went to the Washington State Legislature. The representatives took no action on the measure and as a result Initiative 200 was placed on Washington's November 3rd, 1998 ballot. On election day, Washington state voters passed Initiative 200 with a vote of 58 percent in favor and 42 percent opposed. Given the earlier discussion of the controversy over how the issue should be defined, it is not surprising that prior to the general election, the American Civil Liberties Union (ACLU) filed a lawsuit challenging the ballot title, alleging that is should include the term "affirmative action," rather than the current wording referring to "preferential treatment." The ACLU was not successful in changing the wording of the initiative title and a judge in Washington state affirmed that the ballot title did accurately and impartially describe the intent of the initiative (Bruno 1999, 2). Public perception as measured by a Seattle Times poll that took place several days prior to the election, reinforces the importance of how the issue is defined. The poll indicated that Initiative 200 had garnered widespread support across all age and income groups. The poll also found that both Initiative 200 supporters and opponents agreed that "affirmative action" needed to be reformed. However, the groups differed on whether or not Initiative 200 was the best approach to reform. The Seattle Times poll and the ACLU's attempt to change the wording on the ballot provides additional evidence that, public perception and opinion is divided. By and large, it would seem that Americans don't want to end "affir- mative action" altogether, but rather have serious qualms with "preferential treatment" (Bruno 1999, 2). Following Initiative 200's approval, Ward Connerly, backer of Proposition 209 and leader in the movement to end preferential treatment, stated his belief that, "We are one [Supreme] Court decision away from ending preferences" (Bruno 1999, 7). Whether Connerly is right about the Supreme Court or not, the judicial branch will certainly play a role in interpreting initiatives such as 200. For example, the Washington Attorney General issued a memorandum prior to the election that identified some of the major impact-related questions raised by the initiative. Specifically, the unspecified meaning of "preferential treatment" the memorandum stated, "is not defined in the statute [proposed by the initiative] and does not have a historical legal use or Veil-accepted, ordinary meaning'" (Bruno 1999, 4). Determining the exact or even relative meaning of "preferential treatment" is important in the case of Initiative 200 because, unlike Proposition 209, which amended the state constitution, Initiative 200 as a new state statute would be interpreted in terms of existing laws. Thus, according to the memorandum, One [of] the most significant questions of interpretation, if the initiative were approved, would be how to square the "no discrimination or preferential treatment" language with older statutes requiring agencies to consider the needs of particular groups, some of which are the same categories mentioned in the initiative (Bruno 1999, 4). The memorandum explained that it would be up to the courts to decide, "if the legislative intent behind the Initiative is clear enough to supersede any pre-existing, inconsistent statutory language" (Bruno 1999, 5). However, the complication occurs in the fact that "legislative intent" of an initiative is in effect voter intent. Therefore, the fracture in public opinion, (as illustrated in the pre-election polls), over what constitutes effective affirmative action reform illustrates the difficulty in ascertaining public opinion generally, as well as a specific meaning of "preferential treatment." Clearly, disputes about the implementation of Initiative 200 will have to be resolved by the courts. REGENT LEGAL DEVELOPMENTS STUDENT DIVERSITY IN HIGHER EDUCATION Justice Powell's argument in Bakke was that using preferential treatment to attain a specific percentage of minorities for its own sake is unlawful. However, he argued that diversity as a way to improve education was a "constitutionally permissible goal," because learning "is widely believed to be promoted by a diverse student body" (University of California Regents <v. Bakke 1978). Powell's opinion in the Bakke case has given rise to the notion that diversity in the educational setting is a "compelling interest." However, Justice Powell made it clear that he views this type of diversity in broader terms than simply race. He stated, "[t]he diversity that furthers a compelling 13 |