Affirmative Action and Initiative 200

Information provided by the Attorney General’s Office and the Affirmative Action Defense Project (University of California)

What is the legal meaning of "Affirmative Action"?

Affirmative action is an action taken to provide equal opportunity, as in admissions or employment, for minority groups and women. Affirmative action programs and regulations attempt to compensate for discriminatory practices that have in the past denied fair consideration to members of minority groups. (For example, an all-white government office may take steps to hire people of color. Or, a mostly-male college program may seek to balance its admissions by giving preference to female applicants.)

What is the history of Affirmative Action?

The following is a brief introductory history on Affirmative Action:

1961 Executive Order 10925 established the President’s Committee on Equal Employment Opportunity to end discrimination in employment by the government and its contractors. Here the government called for “affirmative action” for the first time—to take appropriate steps to eradicate the widespread practices of racial, religious, and ethnic discrimination against minorities.

1964 The Civil Rights Act of 1964, Title VI restated and broadened the application of affirmative action. “No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

1965 Executive Order 11246 stated “It is the policy of the Government of the United States to provide equal opportunity in federal employment for all qualified persons, to prohibit discrimination in employment because of race, creed, color or national origin, and to promote the full realization of equal employment opportunity through a positive, continuing program in each department and agency.”

1967 An amendment was made to EO 11246 to prohibit discrimination based on sex.

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Is there Affirmative Action in Washington State?

Washington has several existing laws that mandate “affirmative action” or enhancement of opportunities for women and racial and ethnic minorities in public employment, education and contracting.

For example:

What is Initiative 200 (I-200)?

Initiative 200 prohibits the state from discriminating against or granting 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. Initiative 200 became a state law on December 3, 1998. It is now known as the Washington State Civil Rights Act and can be found under RCW 49.60. This Act applies to all local governments, including counties, cities, and towns. (For the purpose of this section, I-200 will be used instead of the “Act”.)

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How does I-200 affect Affirmative Action?

Since the passage of Initiative 200, affirmative action programs, laws, and regulations in Washington State have been legally challenged and may potentially be eliminated altogether.

How does I-200 affect me?

I-200 affects everyone in Washington; however, due to the vagueness of I-200’s original language, many complex questions will have to be answered before Washington State can implement or enforce this law. At the core of this issue is determining what constitutes “preferential treatment” and how “preferential treatment” will be interpreted in the areas of public employment, education, and contracting. The courts may have to interpret I-200’s legal meaning and its application.

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Doesn’t I-200 conflict with existing law?

Maybe. Besides defining I-200’s language and terms, one of the most significant questions of interpretation is how to harmonize the language prohibiting “preferential treatment” with several existing laws that mandate “affirmative action” or enhancement of opportunities for women and racial and ethnic minorities in public employment, education and contracting. Because the I-200 does not define the term “preferential treatment” and does not specify how continued implementation or enforcement of existing laws would be affected, the effect of the initiative will depend on how its provisions are interpreted and applied.

What’s the impact of I-200 on existing law?

It is important to understand that I-200 does not repeal (revoke) or amend (change) any pre-existing statutes. Where there are multiple statutes (laws) on the same subject, the courts will attempt to harmonize new and existing laws. However, if a court finds a direct conflict, it must decide whether a later law (I-200) will repeal an earlier law.

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