(NAME-MCE) Turning the Tables on Affirmative Action Foes

[Anselmo Villanueva]

Turning the Tables on Affirmative Action Foes

Colorado group challenges Ward Connerly's latest referendum by trying
to put its own anti-quota measure on the fall ballot — in a way that
would preserve current diversity programs.

http://www.insidehighered.com/news/2008/08/18/affirm

August 18, 2008

Turning the Tables on Affirmative Action Foes

Defenders of affirmative action have learned — as ballot measures to
bar its use by public colleges spread from state to state — how to win
support from educators, business leaders and politicians. But they've
yet to marshal a majority of state voters to reject one of the
measures.

This fall — with measures to ban public colleges from the use of race,
ethnicity and gender in admissions and hiring expected on the ballots
in Arizona, Colorado and Nebraska — supporters of affirmative action
have come up with a new approach to try in Colorado. They are
attempting to place their own measure on the ballot: a proposal to
affirm that it is illegal for public colleges and other state agencies
to use quotas or formal point systems based only on race or ethnicity,
but then goes on to say that affirmative action permitted by the U.S.
Supreme Court should continue to be allowed.

The strategy — which has infuriated backers of Ward Connerly, whose
group organized of the referendums in Colorado and elsewhere — is to
try to take away one of his most potent weapons: discussion of quotas.
Many polls show that public support for affirmative action is weakest
if it is linked to quotas and strongest if linked to outreach
programs. With this strategy, backers of affirmative action say they
can be as anti-quota as Connerly, and change the discussion.

"There is a genuine concern about the use of quotas in higher
education — whether it's happening or not. It's not supposed to be
happening, but many people obviously think that it is, so we'll agree
that it shouldn't be happening," said Melissa Hart, an associate
professor of law at the University of Colorado at Boulder and the
president of Coloradans for Equal Opportunity, the group pushing the
anti-quota, pro-affirmative action referendum.

The group has submitted what it says are more than enough valid
petitions to get on the fall ballot, and a ruling by the Secretary of
State's office on the petitions is expected early next month. If it
reaches the ballot, voters could approve it or the anti-affirmative
action measure, approve both or reject both. If both are approved, an
unusual legal battle could emerge. For now, this tactic appears to be
changing the nature of the debate somewhat in Colorado and if this
tactic succeeds, it is likely to be used elsewhere.

Hart said that the strategy arose out of recognition that the
anti-affirmative action forces have been winning — in part by
associating affirmative action with quotas. She noted, for example,
that when John McCain was asked if he would vote to ban affirmative
action in Arizona, the Republican presidential candidate said he would
because "I do not believe in quotas." Supporters of affirmative action
have long argued that they don't believe in quotas either, but Hart
said that message gets lost.

"To the extent that there is any ambiguity about quotas, this would
eliminate even that small possibility," she said, while reminding
people of scholarship programs and outreach efforts that they are more
likely to support. "We believe that if people understood the way race
and gender are taken into account as part of a comprehensive
evaluation of a person, that wouldn't trouble them," she said.

Hart also said that she believes that the anti-affirmative action
movement has consistently used "deceptive language" to confuse voters
into signing ballot petitions and voting for their measures. She said
she was frustrated to see groups that are working against diversity
efforts include "civil rights" in their names, leading some minority
individuals to assume they could trust these organizations.

Now that Coloradans for Equal Opportunity has been created, the
anti-affirmative action group is accusing it of deceptive tactics.
"This is the mosts cynical use of the initiative process, and their
initiative was created just to confuse and deceive voters," said
Jessica Corry, executive director of the Colorado Civil Rights
Initiative, which organized the ballot measure — already certified —
to bar affirmative action by public colleges and other state agencies.

Corry hinted that, if the other measure is certified for the ballot,
her group would go to court to try to block it. "We have concerns that
their signature gatherers may not have been valid," she said. (Corry's
group has been distributing a recording of someone seeking signatures
for the Coloradans for Equal Opportunity measure giving out incorrect
information — something organizers of that ballot measure say was not
typical of their effort, but resulted from one confused person's
misstatements.)

Corry predicted that once voters understand that the alternative
measure would preserve affirmative action in many forms, they will
reject it. "Overwhelmingly, Americans believe that's wrong," she said.

Outside of Colorado, the new strategy to defend affirmative action is
being watched carefully. The Leadership Conference on Civil Rights has
provided some financial backing for the effort. And Shirley Wilcher,
executive director of the American Association for Affirmative Action,
called the Colorado strategy "a fascinating approach." She said that
critics of all affirmative action make "a not-so-subtle
misrepresentation of current law" to imply that quotas remain legal.
"I think this will help voters understand," she said.

Of course one issue acknowledged by both sides in Colorado is that not
every citizen arrives in the voting booth having thoroughly studied
all of the ballot measures. Although leaders of both measures in
Colorado say that the same person shouldn't logically vote Yes on
both, they also say it's quite likely many will do so. In fact, some
political observers believe that if both measures are on the ballot,
both will pass.

Under Colorado law, if two apparently conflicting measures both pass,
the Colorado Supreme Court would attempt to determine whether they
could be reconciled. In such deliberations, both sides are expected to
file briefs that would argue that their measure should be the
controlling one. Hart said that proponents of the measure keeping
affirmative action would argue that their measure is clearer, but
Corry said her group would argue the opposite. If the justices
determine that the two measures could not be reconciled, only the one
with the highest vote total in support would be enacted.

— Scott Jaschik