A Puzzle For Voters, A Lawyer's Delight

THE Voters Pamphlet that arrived at my home contains a mystifying passage written by a decidedly baffled author.

State law requires the attorney general to provide to voters a written explanation of the effect of any initiative. That is ordinarily a valuable source of information, because Attorney General Gregoire is one of the nation's most prominent legal officials, and her staff has a well-deserved reputation for excellence.

After studying the language of Initiative 200, however, the best they could do was to observe that "the effect of the proposed measure would . . . depend on how its provisions are interpreted and applied." That is a lawyer's way of saying, "We have no idea what Initiative 200 means."

The attorney general's bafflement is well founded. Initiative 200 is a mystery wrapped in an enigma. If the initiative were to pass, lawyers would need months to figure out all the questions it raises, and the courts would need years to come up with the answers.

On Nov. 3, however, we will not know the answers to any of the questions. Here are some of the most important ones:

Does I-200 modify existing affirmative-action programs authorized by state statutes? Last spring, I-200 sponsor Rep. Scott Smith assured both the legislature and the governor in writing that no statute-based programs would be overturned. But, the attorney general notes, the measure itself "does not specify how continued implementation or enforcement of existing laws would be affected."

What is "preferential treatment"? Since state law already bans discrimination on the basis of race and gender, the only new element of I-200 is the prohibition of "preferential treatment." The attorney general properly points out that the initiative "does not define the term `preferential treatment.' " The coy but quite deliberate omission of any such definition will permit opponents of affirmative action to argue - after the election - that virtually any form of affirmative action is forbidden by I-200. But that, of course, is not what they are saying now.

Does I-200 permit targeted recruitment? Proponents of I-200 publicly insist that targeted recruiting is not covered; a college, for example, could deliberately send recruiters to a predominantly non-white high school. But that is what supporters of California's Proposition 209 said until it passed; today, California's Gov. Pete Wilson insists that even recruiting women or minorities is illegal.

What if gender or race is relevant to someone's qualification? Washington court rules require that when parents with children get divorced, they must take parenting classes; under those rules, there must be two teachers, one a man and one a woman. Only women are eligible for education programs on the dangers of drug and alcohol use during pregnancy. The reason for such common-sense practices is obvious; whether I-200 would permit them is not.

How does I-200 apply to equally qualified applicants? In the Voters Pamphlet, the sponsors insist that I-200 will forbid "only those programs that use race or gender to select a less qualified applicant over a more deserving applicant." Often, however, there are no meaningful differences between the qualifications of competing applicants.

Does the anti-preference clause require, permit or facilitate discrimination? Initiative 200 forbids discrimination as well as preferences. In practice, gender- or race-conscious action is at times needed to stop discrimination. For example, if a court finds that an employer has systematically paid women less than men, it will order that the women be given a raise. If I-200 forbids such an order, then it would facilitate intentional discrimination against women, even where that discrimination itself would violate I-200.

Does I-200 apply to Indian tribes? I-200 forbids preferential treatment for any "group." State laws are full of provisions that treat local Indian tribes differently than, say, the Sons of Norway. The state, for example, will enter into compacts with a tribe concerning the operation of a casino, although state law does not permit such agreements with any other group. If a tribe is a "group," I-200 would wreak havoc with the state's relationships with the tribes, ending, for example, the state's ability to negotiate regulations of casinos. On the other hand, if a tribe is not a "group," then I-200 would not apply to affirmative action benefiting tribal members.

Initiative 200 violates the most fundamental principles of an Initiative - that the voters should decide. Whatever else the voters may do on Nov. 3, we will not be deciding any of these questions. A vote for I-200 is not a vote for, or against, any particular answer to any of these or countless other questions - it would, rather, be a vote to transfer responsibility for such fundamental decisions from three million voters to a handful of lawyers and judges. Excellent lawyers on both sides, to be sure, and outstanding judges, but not the people who ought to be determining what types of affirmative action policies are best for the state of Washington.

Eric Schnapper is a UW law professor.