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Sue Lani Madsen: Initiative 1000 barking up the wrong tree

Sue Lani Madsen, an architect and rancher, will write opinion for the Spokesman-Review on an occasional basis. Photo taken Wednesday, Sept. 9, 2015. (Jesse Tinsley / The Spokesman-Review)
Sue Lani Madsen, an architect and rancher, will write opinion for the Spokesman-Review on an occasional basis. Photo taken Wednesday, Sept. 9, 2015. (Jesse Tinsley / The Spokesman-Review)

If you’re unfamiliar with the phrase, or with the acute hearing of dogs, a dog whistle refers to a sound pitched so high only a dog can hear it. When applied to politics, it’s often just another way to insult people.

Accusations of dog whistling go something like this. The speaker supports merit-based selection for scholarships and employment. Critics call out “dog whistle!” and bark “racist!” Or maybe xenophobe, or misogynist, or classist, or ageist, or heightist, or weightist, or whatever the victim group of the day is. But betcha dollars to donuts the accusers with the hearing problem are going to select on merit when they look for a cardiologist.

Who would be against selecting the best-qualified candidate to perform their open heart surgery? It’s equally imperative in public contracting to select well-qualified engineers and architects to design safe bridges and schools, especially given our state’s high seismic risk. Employers want competent employees, and employees want co-workers who pull their weight. And we all want fair competition, without discrimination against anyone on the basis of irrelevant personal characteristics.

That’s what Washingtonians affirmed when the Washington State Civil Rights Initiative passed in 1998 with 58 percent of the vote. It eliminated the old affirmative action quota system and preferential treatment that left a shadow on the qualifications of anyone who fit the favored categories. But the Office of Minority and Women-Owned Business Enterprises that administered the old quota system, an agency fellow state bureaucrats thought would be eliminated when the Civil Rights Initiative passed, merely went into remission. OMWBE has stayed alive like a slow-growing tumor, gradually stretching the limits imposed in 1998. Now a new initiative has been filed to feed its growth.

Initiative 1000 petitions are starting to appear in the Spokane area. Its title is the Washington Diversity, Equity and Inclusion Act and its intention is to allow “the state to remedy discrimination for certain groups and to implement affirmative action, without the use of quotas or preferential treatment (as defined).” The “as defined” part is critical.

It revives the discredited concept of affirmative action, a concept historically defined by quotas and preferential treatment. Preferential treatment, or what not to do, is defined in I-1000 as using identification with a protected class as “the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate.” Careful wording leaves open the door to select a lesser qualified candidate.

I-1000 immediately raises skepticism about implementation when it includes “setting goals and timetables, and other measures” as part of the criteria for affirmative action policies in public contracting, employment and education. Within the last decade, OMWBE has attempted to enforce selection rules on other state agencies that would have resulted in eliminating a more qualified company. With a track record of aggressive interpretation of the law, fine points of word selection support skepticism.

I-1000 is also silent on the tools this new and sanitized affirmative action regime will use that aren’t quotas or preferential treatment. But it does tell us who will decide. A 27-member governor-appointed special commission will be charged with implementing remedies for “discrimination against, or under-representation of, disadvantaged groups, as documented in a valid disparity study.” OMWBE already has such a study in hand, with questionable assumptions and data as reported in a previous column.

Ask anyone who’s had to fight the side effects of the old system if they want to see affirmative action revived. Witness the challenges to President Barack Obama as “the affirmative action candidate,” questioning whether he made it into elite universities on his merit or his skin color. Affirmative action is a regressive policy.

It’s tempting to call out the definitions in the I-1000 text as a progressive dog whistle for preferential treatment and a return to quotas, but that would be making the same error as those who accuse conservatives of racism for preferring merit-based selection. It would be projecting worst fears onto others’ intentions. Bless their hearts, the initiative’s authors undoubtedly mean well. But they’re barking up the wrong tree.

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