By Mahlon Meyer
Northwest Asian Weekly
When is defeat not defeat?
Jesse Wineberry, one of the architects of Initiative 1000 (I-1000), which was aimed at restoring affirmative action in Washington state, was at the downtown Bellevue FedEx shortly after the initiative was overturned by 1% of the vote in November 2019. In walked John Carlson, regarded by some as one of the chief opponents of affirmative action, who helped launch an earlier initiative in 1998, I-200, that was widely believed to have killed the policy in Washington state.
Wineberry, an attorney and former majority whip in the Washington State House of Representatives, at first told Carlson he was busy with work but then decided to just outright ask him the question that he had always wanted to ask.
“We were shocked to see each other, but later decided to go for a cup of coffee,” said Wineberry.
After they went to Starbucks next door and sat down, Wineberry asked, “What happened in your life that has made you such a devout racist?”
Carlson insisted, Wineberry remembered, that he could not be a racist when he was the one who wrote the pro I-200 voter statement, which specified what the initiative would not do—end affirmative action.
Carlson then quoted the text verbatim from the voter’s ballot, Wineberry said.
“Initiative 200 does not end all affirmative action programs. It prohibits only those programs that use race and gender to select a less qualified applicant over a more deserving applicant for a public job, contract, or admission to a state college or university,” it read.
“But I needed proof,” said Wineberry, who had not seen the 1998 voter’s pamphlet that year because he was traveling and voted absentee that year.
Wineberry tried to look it up online to no avail. He ended up finding it in the Pritchard Building in Olympia on microfiche.
In the end, the question Wineberry had asked Carlson would lead to a chain of events that, through the determination and detective work of the Washington Equity Now Alliance (WENA), a nonprofit statewide equity advocacy organization, would ultimately lead to Gov. Jay Inslee’s decision to recognize an astonishing fact—affirmative action had never been eliminated in Washington state.
And this week, Inslee, at the urging of WENA, the Asia Pacific Cultural Center, the King County Council, the Seattle City Council, and the Association of Washington Cities (AWC), pledged to bring Washington into compliance with state law.
“Washington’s diversity is our greatest strength, and it is only by leveling the playing field that it becomes possible for all Washingtonians to thrive and live healthy and successful lives,” Inslee said in a press release on Jan. 7. “Today’s announcements are systemic changes that are designed to break down barriers that have kept too many Washingtonians on the sidelines for too long.”
The effect will be revolutionary, said Wineberry in an interview, because it will overturn decades of discriminatory policies, conflicting rules and regulations, and institutional practices that have been based on a gross misinterpretation of state law.
A strict interpretation
Soon after I-200 was passed in 1998, then-governor Gary Locke was required to issue a governor’s directive to state agencies on how to interpret the new initiative.
In an interview, Locke said the directive he issued at the time (GD 98-01) depended on instructions from the Attorney General’s Office (AGO). As a result, the directive ended up being a relatively strict interpretation of I-200.
“Initiative 200 had been approved by the voters, prohibiting affirmative action, and so we needed to issue an executive order to give guidance to the state agencies on what Initiative 200 meant, what they could or could not do. And this was based on interpretations and guidance that we received from the AGO after they looked at the language of the initiative,” said Locke.
Washington state became known as one of nine states that banned affirmative action.
That was why in 2019, Wineberry and others launched I-1000 to restore affirmative action. In their campaign—Locke was honorary co-chair—they emphasized that the new initiative promoted outreach to people of color who were students, potential employees, and contractors.
I-1000 was overwhelmingly passed into law by the Washington State Legislature. However, referendum 88, which affirmative action opponents put on the ballot to reject I-1000, prevailed by 1%.
After the loss, Wineberry asked his team if they wanted to continue. Given that they had garnered 395,938 signatures—more than for any other initiative to the legislature in state history—and the closeness of the race, “they refused to quit,” he said.
But it was the conversation with Carlson that turned the key that would open up a way forward, said Wineberry.
To his astonishment, WENA had found two things in the original text attached to the initiative. The first was that I-200 did not intend to kill affirmative action. The second was that it was only intended to prohibit a less-qualified person from being selected over a more qualified person for public education, public employment, or a public contract based on race or gender.
“When we saw in black and white that I-200 did not end affirmative action, we felt deceived that affirmative action had been killed despite the will of the people,” said Wineberry.
In January 2021, Wineberry and his colleagues decided to file a lawsuit against the state for ending affirmative action in violation of I-200.
However, while conducting research for the lawsuit, they discovered a 2003 Washington State Supreme Court case, “Parents Involved in Community Schools vs. Seattle School District #1,” in which the court had ruled that race-conscious affirmative action was permissible in Washington state.
This State Supreme Court ruling had been overlooked for decades. The case involved a Ballard white student who did not want to be bussed to Franklin High School in Rainier Valley.
The case was brought in the 9th Circuit federal court in San Francisco, but the judges sent it to the Washington State Supreme Court via a Certified Question, and Washington’s high court ruled that I-200 merely prohibited affirmative action programs that particularly advanced “a less qualified applicant over a more qualified applicant.”
Wineberry said WENA checked and double checked the ruling and confirmed the case had never been appealed, overturned, or overruled.
“This was the holy grail—we didn’t want it to be trumped,” he said.
In 2017, Attorney General Bob Ferguson issued an advisory opinion affirming the same interpretation of I-200 provided by the State Supreme Court in 2003.
In April, WENA submitted their findings to the governor’s office, urging Gov. Inslee to rescind that governor’s directive 98-01 and comply with Washington State Court ruling and Attorney General Ferguson’s advisory.
A new hero and new despair
“And then a new hero came in to save the day. Gary Locke came in and said he was the one who issued that order and it should be rescinded,” said Wineberry.
Locke said his directive was out of date given the new interpretation of I-200 by the AGO.
“In the years since, the AGO has said that some things are permissible, such as having science camps that target young girls—to get them interested in science and technology.
Previously, the AGO said such things as targeting or recruiting women and minorities are not permissible. They have since said that such promotional and recruiting efforts are allowed.
And that’s why my directive based on the initial interpretations by the AGO, is out of date. It’s not consistent with more recent interpretations,” he said. “I support Governor Inslee’s decision to rescind executive order 98-01 given the more recent interpretations of the prohibitions of Initiative-200.”
After WENA submitted their findings and recommendations to the governor’s office, they waited for his final decision.
In the meantime, Democrats and Republicans on the King County Council, the entire Seattle City Council, the AWC, and the statewide Washington State Democratic Party urged Gov. Inslee to rescind directive 98-01.
Inslee has promised to sign a new directive some time before Jan. 17.
For many, it will not be a moment too soon.
The Washington State Office of Minority and Women Owned Business Enterprises estimated that since 1998, small, women- and minority-owned businesses have lost an estimated $3.5 billion in job generating contract opportunities.
Gov. Inslee’s 2022 supplemental budget shows that nearly half of Washington’s Black, Latino, and Native American communities are living in poverty compared to only 23% of whites.
Asked if this is a cause for despair, Wineberry said, “There is no better time than right now for Governor Inslee to use the power of his pen to lift women and people of color from the pain of poverty in Washington state.”
Mahlon can be contacted at firstname.lastname@example.org.