LETTER: Open letter to Inslee in response to the GD 98-01 rescission

By I-200 PAC (formerly known as Let People Vote – Reject R-88 PAC), American Coalition for Equality

Dear Governor Inslee,

We would like to begin by thanking you for your service to Washington state during these difficult times, and we sincerely hope that you and your family are well.

Last week, you announced your intention to rescind and replace Governor’s Directive 98-01 within the coming days. Over the past year, we have noted that I-1000 supporters have proposed an Executive Order that would effectively repeal I-200 by changing how Washington state interprets I-200’s prohibition. As the group that successfully defended I-200 in 2019, we urge you to respect the will of the voters and not to issue any Executive Order that would violate I-200 in any fashion.

In 1998, the citizens of Washington state passed I-200, effectively banning discrimination and preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, and contracting. I-200 is now codified as RCW 49.60.400 and rests within the WLAD statutory framework. In 2019, Washington voters once again definitively reaffirmed their support for I-200, even though the measure’s opponents outspent its supporters by roughly three to one.

We respect our opponent’s view and position, but even in the face of vast political and financial odds, our position in support of I-200 has very broad public support in Washington state.

An Executive Order is an inappropriate mechanism to overturn I-200, which is what I-1000 supporters effectively propose. The Washington Constitution grants legislative power to the legislature. It also enshrines one of the foremost rights of Washington state citizens: the ability to exercise legislative power through the initiative process. In contrast, the Washington Constitution vests the Executive Branch with the power to faithfully execute the law, even those laws enacted by the citizens through this initiative process. Washington courts describe the separation of powers doctrine as a “foundational constitutional principle.”

In 1998, after the passage of I-200, Governor Locke issued Governor’s Directive 98-01 to bring the state into compliance with I-200. Governor’s Directive 98-01 began by acknowledging I-200 and reaffirming Washington’s commitment to outreach and recruitment efforts to encourage diversity.

Governor Locke acknowledged that “[i]n cases of a direct, irreconcilable conflict, [he] will read I-200 as implicitly repealing or overriding pre-existing law.”

We believe that the I-1000 supporters’ proposed Executive Order is deeply flawed. In contrast, Governor’s Directive 98-01 sets a bright line rule that adheres to the law and limits the risk of legal liability for the state. In particular, we wanted to note the following flaws with the proposed Executive Order’s interpretation of what I-200 prohibits:

1) I-1000 supporters incorrectly interpret Parents Involved in Community Schools v. Seattle School District No.1, 149 Wash. 2d 660, 72 P.3d 151 (2003). Parents Involved held “RCW 49.60.400 prohibits reverse discrimination where race or gender is used by government to select a less qualified applicant over a more qualified applicant.” Id. at 689-90. Parents Involved does not state that RCW 49.60.400’s reverse discrimination prohibition is limited to times where the government solely uses race or gender. Washington case law is well-settled that WLAD prohibits using certain considerations as substantial factors in decision-making. Nothing in the text of RCW 49.60.400 or court opinions interpreting RCW 49.60.400, suggest that RCW 49.60.400 is to be interpreted in a different manner from the rest of WLAD. The proposed Executive Order’s sole factor test contradicts well-settled case law interpreting the WLAD statutory framework as compelling a substantial factor analysis.

2) In 2019, Washington voters rejected I-1000, which would have added the language “sole qualifying factor” to the definition of preferential treatment in RCW 49.60.400. If Washington voters had intended to limit RCW 49.60.400’s protections to times when a defined trait is the “sole qualifying factor” in a covered state agency decision, they would have voted to do so when they had the chance in 2019. Since the time the amendment was considered and rejected, the legislature has not amended RCW 49.60.400 to insert any similar limiting language. Therefore, interpreting RCW 49.60.400 to mean what was rejected in I-1000 would not respect the will or intention of the voters.

The proposed Executive Order also contains a number of 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 substantial 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 for race-conscious practices, including using race-conscious measures to grant scholarships and financial aid, violates RCW 49.60.400. A goal of attaining a critical mass of diverse students would lead to a university using race as a significant motivating factor in admissions. Additionally, while Grutter authorizes the use of “plus” factors in admissions, this practice is the exact type of preference prohibited by RCW 49.60.400.

3) Requiring the use of preference points, price preferences, and mandatory MWBE goals in public contracting is likely prohibited by RCW 49.60.400. In addition, implementing binding affirmative action plans and goals in public employment violates RCW 49.60.400.

4) Conditioning government expenditure to public contractors on the basis of race or gender, particularly 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 directing the implementation of racial classifications implicates Equal Protection Clause considerations. The proposed Executive Order contains no analysis of compelling state interests or considerations of narrowly tailored alternatives. Even if a court were to find the directives do not violate RCW 49.60.400, a court would likely hold that the directives fail a strict scrutiny analysis in response to an Equal Protection Clause challenge.

The attached memo from Davis Wright Tremaine LLP provides a legal analysis of Governor’s Directive 98-01 and the Executive Order proposed by I-1000’s supporters to rescind it. The analysis highlights flaws in the proposed Executive Order that would create legal liability for the State of Washington if it were to implement it.

In conclusion, I-1000 supporters’ proposed Executive Order, rescinding and replacing Governor’s Directive 98-01, in whole or in part, does not comply with RCW 49.60.400 and violates the Equal Protection Clause of the U.S. Constitution. We respectfully request that you do not issue any Executive Order that violates I-200 or the Equal Protection Clause of the U.S. Constitution.