Affirmative action in Washington

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On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions. This article does not receive scheduled updates. If you have any questions or comments, contact us.

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Affirmative action in Washington refers to the steps taken by employers and universities in Washington to increase the proportions of historically disadvantaged minority groups at those institutions. Historically, affirmative action nationwide has taken many different forms, such as strict quotas, extra outreach efforts, and racial and gender preferences. However, racial quotas in university admissions were banned in a 1978 United States Supreme Court case, Regents of the University of California v. Bakke.

On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions.

As of March 2015, 109 out of 577 public four-year universities across the country reported that they considered race in admissions. This practice has been banned in eight states. Meanwhile, 28 states require affirmative action plans in either public employment or apprenticeships. Affirmative action programs that grant racial preferences have come under scrutiny in the courts for potentially violating the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act.

The following information details the use of affirmative action in universities and employment in Washington, as well as notable court cases originating in the state.

HIGHLIGHTS

Washington is one of eight states that have banned the consideration of race in university admissions and public employment.

The effects of affirmative action policies are contested. Proponents argue that affirmative action diversifies selective institutions and provides more opportunities to minorities. Opponents argue that implementing policies that favor some groups requires discrimination against others and that these policies may harm individuals they are meant to help.

Background

The first reference to affirmative action was made by President John F. Kennedy (D) in 1961 in an executive order directing government contractors to take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." While there had previously been efforts by the federal government to end racial discrimination, the order marked the first instance of an active approach to promoting equal opportunity.

Lyndon Johnson signing the Civil Rights Act, July 2, 1964

As the Civil Rights Movement grew, the federal government took on an increasing role in preventing discrimination and bolstering minority numbers in workplaces and universities. President Lyndon Johnson (D) signed the Civil Rights Act of 1964, a landmark piece of legislation that prohibited discrimination against any individual based on race, color, religion, sex, or national origin. However, some still felt that preventing discrimination was not enough, so President Johnson issued an executive order that created the means to enforce affirmative action policies for the first time. Of their own initiative, many colleges and universities nationwide also adopted affirmative action policies to increase minority enrollment.

The use of affirmative action programs was initially intended to be temporary. However, over time the goals of affirmative action policies shifted from equality of opportunity to the achievement of equal representation and outcomes for minorities at all levels of society, a more ambiguous target. Furthermore, lawsuits have been brought against institutions utilizing affirmative action policies, citing violations of the Equal Protection Clause of the Fourteenth Amendment and Titles VI and VII of the Civil Rights Act. In Regents of the University of California v. Bakke, the Supreme Court ruled that promoting diversity, rather than compensating for historical injustices, is the constitutional goal of affirmative action. In its 2013 ruling on affirmative action in Fisher v. University of Texas, the court also placed the burden on universities to prove that no viable race-neutral alternatives exist when they use racial preferences in admissions to increase diversity.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the Supreme Court effectively ended race-based considerations in college admissions in a June 29, 2023, decision. The ruling explicitly allowed national service academies to continue considering race as a factor in admissions for reasons of national security.

Washington Initiative 200 (1998)

The Washington Initaitive 200 appeared on the ballot in the November 3, 1998, election. The question was referred to the ballot as an Initiative to the Legislature, proposing to ban preferential treatment and discrimination in public education, employment and contracting. Voters approved the amendment by over 300,000 votes, making Washington the second state to enact such a measure. The approved ballot measure added a new section to Chapter 49.60 of Washington's state code.

Key terms

The following terms are helpful in understanding affirmative action policy:

• Discrimination refers to the unequal treatment of some individuals or groups based on federally-protected traits, such as age, race/ethnicity and gender.
• Preferential treatment occurs when an applicant is more likely to be selected than another applicant with similar or better qualifications due to other factors, such as race and ethnicity.
• Reverse discrimination is, according to Dictionary.com, unequal treatment or discrimination based on protected traits of "members of majority groups resulting from preferential policies" favoring historically disadvantaged groups, with the intent of remedying past societal discrimination.
• Equal employment opportunity is a commitment employers make to refrain from employment practices that are discriminatory, either directly (disparate treatment) or indirectly (disparate impact). According to Study.com, an equal employment opportunity policy is intended to ensure that "certain classes of people who have been discriminated against in the past are not subjected to adverse treatment" based on protected traits.
• Diversity means the representation of individuals of a variety of backgrounds in terms of characteristics such as national origin, race and ethnicity, gender and socioeconomic status.
• The mismatch effect refers to the theory that when an elite school extends a large preference to a student due to his race, athletic ability or connection to alumni, that student is less prepared for the rigor of the classes and suffers academically, though that student would perhaps thrive at a somewhat less elite school.
• Racial quotas are hiring or admissions policies requiring that a specified number or percentage of minority group members be hired or admitted. In 1978, the United States Supreme Court outlawed the use of strict racial quotas.
• Ratchet effect/cascade effect refers to a phenomenon in which actors do not have an incentive to improve a situation even if they easily could.

University admissions

See also: Higher education in Washington

Affirmative action in university admissions is a separate matter from affirmative action in employment that operates under different rules and regulations. Federal law requires government contractors and other departments and agencies receiving federal funding to develop and implement affirmative action plans for the hiring process. Public colleges and universities are considered federal contractors and must utilize affirmative action in their employment practices. However, many private colleges and universities across the country have also implemented similar measures in their admissions processes. These actions are typically voluntary, although a handful of states have adopted rules that require state universities to take affirmative action in admissions.

Affirmative action admissions programs were undertaken by public and private universities alike, beginning in the late 1960s and 1970s. Some universities initially established quotas in order to achieve a demographically diverse student body; these quotas were outlawed by the United States Supreme Court in Regents of the University of California v. Bakke in 1978. Today, a common form of affirmative action in college admissions is that of racial preferences. A preference occurs when a group of applicants is more likely to be admitted than other applicants with similar or better qualifications due to other factors, such as race or ethnicity. Preferences are also sometimes extended towards women, athletes, and children of alumni. The use of racial preferences may be related to college selectivity: scholars such as law professor Richard Sander have found that preferences are strongest at elite institutions.

Eight states have enacted laws banning the consideration of race in university admissions. As of March 2015, Washington was one of these states. In 1998, Washington voters passed Initiative 200, which amended Chapter 49.60 of Washington's state code to prohibit preferential treatment or discrimination in public university admissions. Due to the ban, none of Washington's eight public four-year universities reported considering race in admissions, as indicated in the chart below.

Consideration of race at public four-year universities in Washington
School	Race/Ethnicity is...				School selectivity*
	Very important	Important	Considered	Not considered
Central Washington University					Less selective
Eastern Washington University					Somewhat selective
Evergreen State College					Less selective
University of Washington					Somewhat selective
University of Washington Bothell					Less selective
University of Washington Tacoma					Less selective
Washington State University					Less selective
Western Washington University					Less selective
Sources: The College Board, "Big Future," accessed March 30, 2015. Reproduced with permission. CollegeData, "College 411," accessed March 30, 2015 *Note: This scale of college selectivity comes from The College Board and is measured as follows: Most selective, less than 25 percent admitted; Very selective, 25 percent to 50 percent admitted; Somewhat selective, 50 percent to 75 percent admitted; Less selective, more than 75 percent admitted; Open admission, all or most admitted.

About the data

Information on which colleges consider race in admissions came from individual college profiles provided by two websites that aim to assist students in choosing a college: The College Board and CollegeData. Such information was reported to The College Board by the colleges themselves. Note that schools may have updated their policies since reporting them. To see the data: College Board: Click the link to the college's profile provided in the table below. Click "Applying" on the side menu and scroll down. Listed will be several criteria of admission into the college, separated by importance. If Race/Ethnicity is not listed, it was not reported as considered by the college's admissions officers. CollegeData: Click the link to the college's profile provided in the table below. Scroll down to the section titled "Selection of Students" to see a chart of admission criteria ranked from "Very Important" to "Not Considered." Click for links to school profiles School School profiles School School profiles College Board College Data College Board College Data Central Washington University Link Link University of Washington Bothell Link Link Eastern Washington University Link Link University of Washington Tacoma Link Link Evergreen State College Link Link Washington State University Link Link University of Washington Link Link Western Washington University Link Link

Employment

According to Business and Legal Resources, 28 states have passed their own laws requiring the development of affirmative action plans by state employers or apprenticeship programs. Affirmative action plans are management tools that outline efforts made to increase the proportions of minorities at a company or institution. Such plans typically contain the following:

• numerical analysis of the percentage of minorities employed versus the percentage in the labor pool,
• identification of areas where there is "underutilization" of minorities, or a discrepancy between the above percentages, and
• "specific practical steps" the employer will take to correct this discrepancy.

In Washington, Section 400 of Chapter 49.60 of Washington's state code prohibits preferential treatment and discrimination in state employment and contracting. The section was added by the Washington Initiative 200 in 1998. The law did not, however, prevent agencies and organizations that received federal funding from utilizing affirmative action programs according to federal law.

See law: RCW 49.60.400

In addition, Washington has a nondiscrimination law, which identifies the following as protected traits in addition to those protected by federal law:

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Race Color National origin Religion Sex (including pregnancy, childbirth, related medical conditions, and breastfeeding) Disability: physical, mental, or sensory Age (40 and older) Genetic information Marital status Sexual orientation AIDS/HIV Hepatitis C infection Member of state militia Use of service animal Gender identity Domestic violence victim status

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The state's nondiscrimination law applies to employers with at least eight employees (one or more employees for gender-based wage discrimination) and is enforced by the Washington Human Rights Commission.

Federal requirements

Federal contractors and agencies in Washington that receive funding from the United States government are subject to federal law that requires them to adopt affirmative action plans.

Additionally, the following federal laws may apply to any company that meets certain conditions:

• Employers with at least four employees must adhere to the Immigration Reform and Control Act.
• Employers with at least 15 employees must adhere to Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
• Employers with at least 20 employees must adhere to the Age Discrimination in Employment Act.
• Employers with any number of employees must adhere to the Equal Pay Act.

Federal nondiscrimination and affirmative action laws in Washington are enforced by the Equal Employment Opportunity Commission.

Court cases

Parents Involved in Community Schools v. Seattle School Dist. No. 1

The Seattle School District allowed for students to apply to any high school and maintained a system of "tiebreakers" for determining which students would be admitted to schools that had more applicants than spaces. The second most important tiebreaker was race. Seattle classified students as either "white" or "non-white" and used these classifications to maintain diverse schools. Schools aimed for a predetermined percentage of minority students and used race as a tiebreaker when their demographics deviated too far from the goal.

Skyline of Seattle, Washington

A community group, Parents Involved in Community Schools, sued the district on the grounds that the "racial tiebreaker" violated the Equal Protection Clause of the Fourteenth Amendment because it was based solely on race. The United States District Court for the Western District of Washington dismissed the case, letting the school's policy remain intact. On appeal, the Ninth Circuit Court of Appeals reversed. The Ninth Circuit Court applied the precedents of Grutter v. Bollinger and Gratz v. Bollinger that race-based classifications should serve a "compelling governmental interest" and be "narrowly tailored" (in other words, individualized). In examining the policy of the school district, it determined that it was not narrowly tailored and therefore was unconstitutional.

In response, the school district requested the case be heard by a panel of 11 judges of the Ninth Circuit. The panel upheld the district's policy, finding that it served a compelling interest in the pursuit of diversity. The panel also found that the policy was narrowly tailored for the following reasons:

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the District did not employ quotas, the District had considered race-neutral alternatives, the plan caused no undue harm to races, and the plan had an ending point.

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In 2006, the case was heard by the United States Supreme Court in conjunction with Meredith v. Jefferson. The court ruled that Grutter v. Bollinger and Gratz v. Bollinger did not apply in this case because the school district did not individually consider students for admission and limited its definition of racial diversity to "black" and "other." Furthermore, the school district was not seeking diversity, but racial balancing. Therefore, the court held that the policy of Seattle School District No. 1 violated the Equal Protection Clause and was unconstitutional.

In the opinion for the majority, Chief Justice John Roberts famously wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

Public opinion

National public opinion polls on affirmative action have yielded mixed results over the past few years. Results found by researchers seem to depend largely on how the question is worded. In particular, support drops considerably when the word "preferences" is included in the question. Supporters of affirmative action are more likely to do so to increase diversity rather than compensate for past injustice.

Opinions also change when the question refers to college admissions specifically, and support and opposition are somewhat divided on racial lines, with black Americans being far more likely to favor affirmative action. In general, support for affirmative action has dropped since its peak in the early 1990s, when a poll by NBC News/Wall Street Journal found that 61 percent of Americans thought that affirmative action policies were still needed, compared to 45 percent in June 2013.

Support

Common reasons stated for supporting affirmative action include the following:

• Diversity is valuable for any workplace or college campus.
• Minority enrollment in college would fall dramatically without affirmative action.
• Affirmative action provides the extra push to disadvantaged students that is needed to succeed.
• By providing minorities with new opportunities, affirmative action may introduce them to other interests they would not have discovered otherwise.
• Affirmative action is necessary to break stereotypes.
• Affirmative action compensates for past injustices.

Opposition

Common arguments stated against affirmative action include the following:

• Affirmative action policies have caused "reverse discrimination" against whites.
• According to the Equal Protection Clause of the Fourteenth Amendment, affirmative action is unconstitutional.
• Since standards are lowered by preferential treatment, minorities only aim for those lower standards.
• Affirmative action causes a "mismatch effect" of underqualified students, leading to their failure at elite schools.
• Affirmative action is demeaning and condescending to minority achievement.
• It is too difficult to end affirmative action policies after they have been enacted, even when discrimination is no longer an issue.

Agencies

The Equal Employment Opportunity Commission (EEOC) is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information." These federal laws typically apply to workplaces with 15 or more employees. The EEOC operates field offices in 15 districts. Washington is served primarily by the San Francisco District Office. See the table below for further information about EEOC field offices serving Washington.

EEOC field offices serving Washington
Office	Location	Website
San Francisco District Office	San Francisco, California	Link
Seattle Field Office	Seattle, Washington	Link
Oakland Local Office	Oakland, California	Link
San Jose Local Office	San Jose, California	Link

In addition, states and localities may have their own anti-discrimination laws. Separate agencies, designated by the EEOC as Fair Employment Practices Agencies, are responsible for enforcing these laws. In Washington, the Washington State Human Rights Commission is a designated Fair Employment Practices Agency. See the table below for further information about this office.

Fair Employment Practices Agencies in Washington
Office	Location	Phone number	Website
Washington State Human Rights Commission	Olympia, Washington	(360) 753-6770	Link

Affirmative action and anti-discrimination legislation

The following is a list of recent affirmative action and anti-discrimination bills that have been introduced in or passed by the Washington state legislature. To learn more about each of these bills, click the bill title. This information is provided by BillTrack50 and LegiScan.

Note: Due to the nature of the sorting process used to generate this list, some results may not be relevant to the topic. If no bills are displayed below, no legislation pertaining to this topic has been introduced in the legislature recently.

See also

• Affirmative action
• Affirmative action ballot measures
• Higher education in Washington
• Fourteenth Amendment
• Civil Liberties Policy

External links

• Washington State Human Rights Commission
• Equal Employment Opportunity Commission