Wednesday, February 09, 2005
Revisiting I-200
Thanks to Bashman of How Applealing for spotting this opinion yesterday in the Seattle Times about legislative attempts to reverse Washington's anti-affirmative action measure I-200. Perhaps, given the recent Supreme Court decision inThe Michigan cases, now is exactly the right time to re-open the debate on the west coast about the value of affirmative measures to increase access for racial minorities to public higher education.
There are only two voter-approved anti-affirmative action initiatives. California's Proposition 209 and Washington State's I-200. One Florida began was Governor Jeb Bush's executive order. Other anti-affirmative action activities were legitimized through judicial decree, for example the 11th Cir. opinion out of Georgia. Because Georgia and Florida are both in the 11th Cir, the UGA opinion had the temporary effect of supporting the One Florida plan. Johnson v. UGA joined other judicial limitations on affirmative action in higher education, Hopwood in the 5th Cir. and Michigan's Bollinger cases in the 6th Cir. However, the 2003 Supreme Court decision hearkened back to Bakke to overturn all the lower court decisions on the ground that attempts to achieve diversity in higher education is a compelling state interest which justifies the use of race in admission to public schools. John Carlson, in his Seattle Time Op, is correct that the Michigan decision does not require race-based affirmative measures. The Court decision simply says that there is a legitimate justification for government to use race in admissions if it so chooses.
In the 25+ year backlash against affirmative action, the argument against it has been that governments aren't justified in using race as a category for deprivation or allocation of resources. This popular opinion was reflected in specific opinions from the Court. However, the Court always held out that there may be legitimate uses of race in governmental actions.
In the Michigan and other affirmative action cases, the Court is primarily concerned with the state's justifications for employing affirmative action measures. O'Connor, writing for the Court in Grutter, declares, "Context matters when reviewing race-based governmental action under the Equal Protection Clause." She then distinguishes education as a context different from other areas in which some justifications for affirmative action have been litigated, such as public contracting. Lest there be confusion about whether the contracting cases are controlling O'Connor writes, "Nor, since Bakke, have we directly addressed the use of race in the context of public higher education." The distinction between the justifications for affirmative action in public education and the justifications for affirmative action in public contracting are particularly interesting because O'Connor also wrote two of the controlling public contracting decisions.
The Court relied on the Diversity Rational as the reason for deciding that race can be legitimately taken into account in admission to institutions of higher education. (links to concepts "diversity rational" and "critical mass" coming soon)
If there's a controlling case on affirmative action in public employment, I am unaware. I haven't adequately researched it. The case that immediately comes to mind is Piscataway v. Taxman which was settled out of court approximately two months before the Supreme Court was set to hear it. I believe there is also an east-coast lower-court case on the justification of "role models" for hiring a black teacher over a white teacher in a predominately black public school, but I don't recall the parties in the case and haven't looked it up. Anyway, as I recall, the lower court found the "role model" justification was not a compelling state interest for hiring a black teacher over an equally qualified white teacher. But, as a lower court case, the decision would only have persuasive and not controlling authority outside its jurisdiction.
With that background of lower court activism in limiting the use of race as a factor in admission to higher education, it is clearer that Washington's I-200 and California's Proposition 209 are significantly different from the judicial cases in Georgia, Texas and Michigan and different from the executive activism in Florida. First, I-200 and Prop. 209 limit more than just how state-run colleges and universities can select students for admission to higher education. The initiatives also limit the use of race in public employment and public contracting. Second, the WA and CA initiatives were directly voter approved. There is an implicit argument in Carlson's Seattle Times article that directly democratic moves like I-200 and Proposition 209 shouldn't be changed through legislative action. After all the voters have, theoretically, bypassed their representatives for a reason and have spoken. But let's look at the arguments FOR changing I-200 and then look at the arguments for using the state legislature to do it.
Though I-200 was passed only ten years ago, times seem to be a-changing. As I said above, with the Supreme Court specifically stating that governments can use limited, affirmative, race-inclusive means to achieve the compelling state interest of diversity in public higher education, the people of Washington and California may need debate whether the initiatives are simply too far reaching. The populus may need to revisit their notions of when it is legitimate and when it is illegitimate to take race into account. If using race in admissions was considered illegitimate before the Michigan cases, maybe the people will now be persuaded by the logic of the Court in the context of higher education. Certainly public debate should be reopened on the issue. It is entirely possible that given the effects of serverely curtailing affirmative measures in Washington and California, that the majorities who favored I-200 and Prop-209 ten years ago may not be in favor now.
Carlson argues that there is no need to change the law because the University of Washington has achieved diversity without taking race into account. Carlson argues that traditionally excluded minorities are now attending UW in numbers proportional to Washington state demographics. However, his use of state demographic data is selective, at best, and should at least be justified according to some stated value or social good, for example the mission of the university or service to the communities the university serves. While UW is the state's flagship school and certainly should serve the people of Washington who help to fund it, UW also competes on a regional and national level for undergraduate and graduate students. As a research university, UW contributes knowledge and information not only to the state of Washington but also to the nation. Therefore, perhaps it makes more sense for national or regional demographic figures to determine whether or not diversity has been achieved at UW. At the very least, Carlson's use of state-wide demographic data to declare that diversity has been achieved should be questioned and justified.
Despite Mr. Carlson's assertion that, "most people, regardless of their politics, are fair. They believe that discrimination is wrong and that civil rights belong to everyone," his reference to the nearly proportional representation of students of color at UW to their percentage of the Washington public is decidedly unfair and likely discriminatory as well. I don't support proportional representation because, as expemplified by Mr. Carlson's polemic, proportional representation tends to act as a cap on the number of qualified minority students admitted. Presumably, in fairness, Mr. Carlson would like his alma mater to educate the best students, not just the best 3.7% of African American students and the best 72% (or 54%) of White students.
Mr. Carlson's reference to the demographic make-up and proportional representation at UW is also misleading with regard to why diversity is desirable in higher education. The Court's understanding of the diversity rational is supported by the notion of "critical mass." Unlike proportional representation which is a maximum, critical mass in the context of higher education is best understood as a minimum; enough minority students to ensure that 'minority students don't feel isolated or like spokespersons for their race; to provide adequate opportunities for the kind of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and to reexamine stereotypes." Critical mass is a flexible, context-specific, minimum for achieving the benefits of diversity. Therefore, before Carlson can declare that diversity at UW has been achieved there should be a serious inquiry into whether or not there are sufficient numbers of traditionally excluded minority students to approximate a critical mass in UW classrooms so the benefits of diversity can flow.
Now that we've at least reopened the debate that Carlson seeks to close, let's discuss the legitimacy of legislators overturning direct voter initiatives. I'm sure there's a law review article out there somewhere, but the arguments are identifiable without too much scholarly analysis. There are three choices for over-turning Prop-209 and I-200. First, find an aggrieved party with standing and take it to the state courts. Certainly not the fastest way to get something done and given the legal expenses for both sides, certainly not the most cost effective. Second, voters can reverse themselves at great expense. It's more cost effective to have the legislature execute the will of the people. After all, the people of Washington are already paying their representatives so the costs are built in. There could be a lively theoretical debate about "elitist" representatives overriding the will of the people, but if the majorities of people in Washington state and in California are persuaded by the logic of The Court and have changed their minds about the legitimacy of taking race into account for admission to their institutions of higher education, the legislature seems to be the most efficient and cost-effective place to turn.
There are only two voter-approved anti-affirmative action initiatives. California's Proposition 209 and Washington State's I-200. One Florida began was Governor Jeb Bush's executive order. Other anti-affirmative action activities were legitimized through judicial decree, for example the 11th Cir. opinion out of Georgia. Because Georgia and Florida are both in the 11th Cir, the UGA opinion had the temporary effect of supporting the One Florida plan. Johnson v. UGA joined other judicial limitations on affirmative action in higher education, Hopwood in the 5th Cir. and Michigan's Bollinger cases in the 6th Cir. However, the 2003 Supreme Court decision hearkened back to Bakke to overturn all the lower court decisions on the ground that attempts to achieve diversity in higher education is a compelling state interest which justifies the use of race in admission to public schools. John Carlson, in his Seattle Time Op, is correct that the Michigan decision does not require race-based affirmative measures. The Court decision simply says that there is a legitimate justification for government to use race in admissions if it so chooses.
In the 25+ year backlash against affirmative action, the argument against it has been that governments aren't justified in using race as a category for deprivation or allocation of resources. This popular opinion was reflected in specific opinions from the Court. However, the Court always held out that there may be legitimate uses of race in governmental actions.
In the Michigan and other affirmative action cases, the Court is primarily concerned with the state's justifications for employing affirmative action measures. O'Connor, writing for the Court in Grutter, declares, "Context matters when reviewing race-based governmental action under the Equal Protection Clause." She then distinguishes education as a context different from other areas in which some justifications for affirmative action have been litigated, such as public contracting. Lest there be confusion about whether the contracting cases are controlling O'Connor writes, "Nor, since Bakke, have we directly addressed the use of race in the context of public higher education." The distinction between the justifications for affirmative action in public education and the justifications for affirmative action in public contracting are particularly interesting because O'Connor also wrote two of the controlling public contracting decisions.
The Court relied on the Diversity Rational as the reason for deciding that race can be legitimately taken into account in admission to institutions of higher education. (links to concepts "diversity rational" and "critical mass" coming soon)
If there's a controlling case on affirmative action in public employment, I am unaware. I haven't adequately researched it. The case that immediately comes to mind is Piscataway v. Taxman which was settled out of court approximately two months before the Supreme Court was set to hear it. I believe there is also an east-coast lower-court case on the justification of "role models" for hiring a black teacher over a white teacher in a predominately black public school, but I don't recall the parties in the case and haven't looked it up. Anyway, as I recall, the lower court found the "role model" justification was not a compelling state interest for hiring a black teacher over an equally qualified white teacher. But, as a lower court case, the decision would only have persuasive and not controlling authority outside its jurisdiction.
With that background of lower court activism in limiting the use of race as a factor in admission to higher education, it is clearer that Washington's I-200 and California's Proposition 209 are significantly different from the judicial cases in Georgia, Texas and Michigan and different from the executive activism in Florida. First, I-200 and Prop. 209 limit more than just how state-run colleges and universities can select students for admission to higher education. The initiatives also limit the use of race in public employment and public contracting. Second, the WA and CA initiatives were directly voter approved. There is an implicit argument in Carlson's Seattle Times article that directly democratic moves like I-200 and Proposition 209 shouldn't be changed through legislative action. After all the voters have, theoretically, bypassed their representatives for a reason and have spoken. But let's look at the arguments FOR changing I-200 and then look at the arguments for using the state legislature to do it.
Though I-200 was passed only ten years ago, times seem to be a-changing. As I said above, with the Supreme Court specifically stating that governments can use limited, affirmative, race-inclusive means to achieve the compelling state interest of diversity in public higher education, the people of Washington and California may need debate whether the initiatives are simply too far reaching. The populus may need to revisit their notions of when it is legitimate and when it is illegitimate to take race into account. If using race in admissions was considered illegitimate before the Michigan cases, maybe the people will now be persuaded by the logic of the Court in the context of higher education. Certainly public debate should be reopened on the issue. It is entirely possible that given the effects of serverely curtailing affirmative measures in Washington and California, that the majorities who favored I-200 and Prop-209 ten years ago may not be in favor now.
Carlson argues that there is no need to change the law because the University of Washington has achieved diversity without taking race into account. Carlson argues that traditionally excluded minorities are now attending UW in numbers proportional to Washington state demographics. However, his use of state demographic data is selective, at best, and should at least be justified according to some stated value or social good, for example the mission of the university or service to the communities the university serves. While UW is the state's flagship school and certainly should serve the people of Washington who help to fund it, UW also competes on a regional and national level for undergraduate and graduate students. As a research university, UW contributes knowledge and information not only to the state of Washington but also to the nation. Therefore, perhaps it makes more sense for national or regional demographic figures to determine whether or not diversity has been achieved at UW. At the very least, Carlson's use of state-wide demographic data to declare that diversity has been achieved should be questioned and justified.
Despite Mr. Carlson's assertion that, "most people, regardless of their politics, are fair. They believe that discrimination is wrong and that civil rights belong to everyone," his reference to the nearly proportional representation of students of color at UW to their percentage of the Washington public is decidedly unfair and likely discriminatory as well. I don't support proportional representation because, as expemplified by Mr. Carlson's polemic, proportional representation tends to act as a cap on the number of qualified minority students admitted. Presumably, in fairness, Mr. Carlson would like his alma mater to educate the best students, not just the best 3.7% of African American students and the best 72% (or 54%) of White students.
Mr. Carlson's reference to the demographic make-up and proportional representation at UW is also misleading with regard to why diversity is desirable in higher education. The Court's understanding of the diversity rational is supported by the notion of "critical mass." Unlike proportional representation which is a maximum, critical mass in the context of higher education is best understood as a minimum; enough minority students to ensure that 'minority students don't feel isolated or like spokespersons for their race; to provide adequate opportunities for the kind of interaction upon which the educational benefits of diversity depend; and to challenge all students to think critically and to reexamine stereotypes." Critical mass is a flexible, context-specific, minimum for achieving the benefits of diversity. Therefore, before Carlson can declare that diversity at UW has been achieved there should be a serious inquiry into whether or not there are sufficient numbers of traditionally excluded minority students to approximate a critical mass in UW classrooms so the benefits of diversity can flow.
Now that we've at least reopened the debate that Carlson seeks to close, let's discuss the legitimacy of legislators overturning direct voter initiatives. I'm sure there's a law review article out there somewhere, but the arguments are identifiable without too much scholarly analysis. There are three choices for over-turning Prop-209 and I-200. First, find an aggrieved party with standing and take it to the state courts. Certainly not the fastest way to get something done and given the legal expenses for both sides, certainly not the most cost effective. Second, voters can reverse themselves at great expense. It's more cost effective to have the legislature execute the will of the people. After all, the people of Washington are already paying their representatives so the costs are built in. There could be a lively theoretical debate about "elitist" representatives overriding the will of the people, but if the majorities of people in Washington state and in California are persuaded by the logic of The Court and have changed their minds about the legitimacy of taking race into account for admission to their institutions of higher education, the legislature seems to be the most efficient and cost-effective place to turn.
