By American Equality Coalition I-200 PAC (previously called Let People Vote – Reject R-88 PAC)
Dear Governor Inslee,
First of all, we want to thank you for your service to Washington State during these difficult times, and we sincerely hope you and your family are well.
Last week, you announced your intention to revoke and replace Governor’s Directive 98-01 in the coming days. Over the past year, we have noticed that I-1000 proponents have proposed an executive order that would effectively repeal the I-200 by changing how Washington State interprets the I-200 ban. As a group that successfully defended the I-200 in 2019, we urge you to respect the wishes of your voters and refrain from issuing any executive order that would violate the I-200 in any way.
In 1998, citizens of Washington State passed the I-200, which effectively prohibits discrimination and preferential treatment in public employment, education, and contracts based on race, sex, color, ethnicity, or national origin. I-200 is now codified as RCW 49.60.400 and is within the WLAD statutory framework. In 2019, Washington voters again explicitly reaffirmed their support for I-200, even though opponents of the measure outnumbered its supporters by roughly three to one.
We respect the views and positions of our opponents, but even in the face of enormous political and economic hardship, our position in support of I-200 enjoys broad public support in Washington State.
An executive order is an inappropriate mechanism for overturning I-200, and I-1000 proponents have effectively proposed it. The Washington Constitution gives the legislature legislative power. It also embodies one of the most important rights of Washington State citizens: the ability to exercise legislative power through an advocacy process. By contrast, the Washington Constitution gives the executive branch the power to faithfully enforce laws, even those made by citizens through this advocacy process. The Washington court described the principle of separation of powers as a “fundamental constitutional principle.”
In 1998, following the passage of the I-200, Governor Locke issued Governor’s Directive 98-01 to bring the state into compliance with the I-200. Governor’s Directive 98-01 first recognized the I-200 and reaffirmed Washington’s commitment to outreach and recruiting efforts to encourage diversity.
Governor Locke acknowledged that “[i]n direct, irreconcilable conflict cases, [he] Read the I-200 as implicitly repealing or overriding existing law. “
We believe that the executive order proposed by I-1000 proponents is seriously flawed. In contrast, Governor’s Directive 98-01 sets a bright-line rule that obeys the law and limits the state’s exposure to legal liability. In particular, we would like to point out the following flaws in the proposed executive order’s interpretation of what is prohibited on I-200:
1) I-1000 Proponents Misinterpret Parents Participating in Community Schools v. Seattle School District No. 1, 149 Wash. 2d 660, 72 P.3d 151 (2003). Participating parents argued that “RCW 49.60.400 prohibits reverse discrimination, where the government uses race or gender to select unqualified applicants over qualified applicants.” ID. at 689-90. The parents involved did not state that RCW 49.60.400’s reverse discrimination prohibition is limited to times when the government uses only race or gender. Washington case law expressly states that WLAD prohibits the use of certain considerations as important factors in decision-making. Nothing in the text of RCW 49.60.400 or in the court opinion interpreting RCW 49.60.400 suggests that RCW 49.60.400 is to be interpreted differently than the rest of the WLAD. The proposed executive order’s sole factor test contradicts well-established case law that interprets the WLAD statutory framework as a convincing substantive factor analysis.
2) In 2019, Washington voters rejected the I-1000, which will add the term “sole eligibility factor” to the definition of preferential treatment in RCW 49.60.400. If Washington voters intend to limit RCW 49.60.400’s protections to when a clear feature is the “sole qualifying factor” in a covered state agency decision, they will vote to do so in 2019 when they have the opportunity. Since that amendment was considered and rejected, the Legislature has not amended RCW 49.60.400 to insert any similar restrictive language. Therefore, interpreting RCW 49.60.400 as rejected on I-1000 is disrespectful to the voter’s wishes or intent.
The proposed executive order also contains some directives that are inconsistent with RCW 49.60.400 or violate the Equal Protection Clause of the U.S. Constitution. In particular, the following provisions are problematic:
1) Authorizing state agencies to consider race and gender as significant factors in public employment, education, or contracting violates RCW 49.60.400.
2) Directing public institutions of higher education to abandon race-neutral admissions practices in favor of race-aware practices, including the use of race-aware measures to award scholarships and financial aid, in violation of RCW 49.60.400. The goal of getting a large number of diverse students will lead a college to use race as an important motivator for admissions. Additionally, while Grutter authorizes the use of the “plus” factor in admissions, this practice is precisely the type of preference prohibited by RCW 49.60.400.
3) RCW 49.60.400 may prohibit requiring usage preference points, price preference and mandatory MWBE targets in public contracts. In addition, implementing binding affirmative action plans and goals in public employment violates RCW 49.60.400.
4) Restricting government spending on public contractors based on race or gender, specifically in the form of “financial relief,” violates RCW 49.60.400 and the Equal Protection Clause of the U.S. Constitution.
5) Abandoning race-neutral policies and guiding the implementation of racial classifications involves consideration of the Equal Protection Clause. The proposed executive order does not contain an analysis of a compelling national interest or consideration of narrow alternatives. Even if the court finds that the orders do not violate RCW 49.60.400, the court may find that the orders fail to provide a rigorous scrutiny analysis of challenges to the Equal Protection Clause.
The memo accompanying Davis Wright Tremaine LLP provides a legal analysis of the Governor’s Directive 98-01 and the executive order proposed by proponents of I-1000 to repeal the directive. The analysis highlights flaws in the proposed executive order that could create legal liability for Washington state if it implements the order.
In conclusion, the executive order proposed by I-1000 proponents, revoking and replacing in whole or in part Governor’s Directive 98-01, is inconsistent with RCW 49.60.400 and violates the Equal Protection Clause of the United States Constitution. We kindly ask that you do not issue any executive order that violates the I-200 or the Equal Protection Clause of the U.S. Constitution.
