Sacramento, CA -- One of the few bright spots on election night was the smashing victory of Washington state’s Initiative 200, the anti-race-and-gender-preference ballot measure. I-200 prevailed in a landslide (58-42%) despite being outspent five to one. The measure also overcame the furious opposition of the Washington political establishment, including liberal Governor Gary Locke; support from heavyweight national Democrats from Vice President Al Gore to Jesse Jackson; and the support of the chicken-hearted corporate community which threw in a ton of cash against the initiative.

Defenders of preferences, unsurprisingly, have vowed to take I-200 to court. However, the wording of I-200 is very similar to California’s Prop. 209 and Washington’s judges should look to the legal landscape in California in the wake of Prop. 209’s passage. Rulings show that government agencies can’t escape the law’s reach by playing semantic games.

For instance, in a key case involving a San Jose government contracting program, the city claimed that it had made its program race-and-gender neutral by changing the name of its race-and-gender participation goals to so-called "evidentiary presumptions," that is, the percentage of minority and women-owned firms that supposedly would have participated in the government contract in the absence of discrimination. In addition, the San Jose program specifically included race-and-gender-based outreach efforts.

The trial court, however, didn’t buy any of this semantic sleight-of-hand.

In his opinion handed down earlier this year, Superior Court Judge Richard Turrone cited a 1995 federal Ninth Circuit ruling which said, "We look to the economic realities of the program rather than the label attached to it in determining whether the statute grants a preference." Judge Turrone also noted that a 1997 Ninth Circuit opinion found "a non-rigid system of goals as opposed to rigid quotas is a classification." (It is worth noting that the Ninth Circuit also covers Washington state.) Thus, despite the change in nomenclature, Judge Turrone ruled that the San Jose program classified persons on the basis of race and gender, and therefore violated Prop. 209. Judge Turrone also found that race-and-gender-based outreach violated Prop. 209. But in the wake of such solid court decisions, the reality is that local governments, for the most part, remain recalcitrant.

In Sacramento, for example, the current county affirmative action policy explicitly states: "As a matter of policy, each department head shall analyze all aspects of his or her workforce and formulate affirmative action plans, including numerical goals and timetables to correct identified deficiencies in the utilization of members of protected groups." It’s as if the election that passed Prop. 209 never happened.

What this indicates is that even after voters defeated preferences, it will take a lot of legal trench warfare to eliminate them once and for all. Preference opponents have principle, the public, and the Constitution on their side. All they need is the stamina to achieve final victory.

-- Lance T. Izumi