To listen to Ward Connerly last year, 2008 was going to be a crucial year in his fight against affirmative action. While the U.S. Supreme Court in 2003 upheld the legality of some forms of affirmative action in college admissions, the justices didn't make it mandatory. And so Connerly set out to replicate the successes he had with state ballot measures in California, Washington State and Michigan. He identified five new target states and vowed to get affirmative action banned in each one, calling Election Day 2008 the Super Tuesday of his movement.
Connerly may have had reason to be confident. Once his proposed bans on affirmative action have made it onto ballots, they have never lost. And he managed to defeat affirmative action in states that are, on the red-blue continuum, very much blue. This year's targets were a mix of red and purple.
So far this year, however, defenders of affirmative action are the ones winning. First last month in Oklahoma and then on Sunday in Missouri, proponents of affirmative action bans failed to submit enough signatures to get on the state ballots this fall by required deadlines. In one state, Colorado, the measure has qualified for the ballot and campaigns are still going on in Arizona and Nebraska. In both of those states -- each with early July deadlines for submitting petitions -- organizers said Monday that they would qualify, but they also acknowledged not yet being close. Nebraska's push has only about 20 percent of the required signatures.
So what's going on? Has the tide turned, as some defenders of affirmative action hope? Or has the movement against affirmative action simply run into administrative hurdles it didn't count on and may not have been prepared to face in five states at once?
While both sides in the debate have their own analyses, one thing that they agree on is that defenders of affirmative action may have their greatest advantage before items reach the ballot. When the movement to use state referendums to ban affirmative action started, many educators hoped they would prevail to defend the practice in actual elections. That view is no longer much expressed -- and even people who strongly believe in affirmative action are less likely these days to predict that the public will reject ballot proposals as written by Connerly.
But qualifying for state ballots is tricky, with requirements that vary from state to state. Defenders of affirmative action have made it clear that they will scrutinize as many signatures as possible and file suits if necessary to challenge signatures. As a result, proponents of the ballot measures have set goals much higher than the totals needed to qualify -- as they expect some signatures to be successfully challenged. And legal maneuvering has also become effective.
Take Missouri, for example. Opponents of affirmative action said that they had more than 20,000 signatures on top of the required 150,000 or so that would be needed to place the measure on the ballot. But they said that they expected enough successful challenges that they didn't want to submit the petitions with relatively little margin for error, as would have been the case at this late date. Instead, they will start again, hoping for 2010 elections.
Tim Asher, who led the Missouri effort for the ballot item, blamed the inability to collect enough signatures on Robin Carnahan, Missouri's secretary of state, who rewrote the ballot language submitted by Asher and his allies. A state judge later rejected Carnahan's language, but the petition drive didn't begin until after that dispute had been resolved. Signatures could have been collected earlier, but only using Carnahan's language, and the opponents of affirmative action didn't want to start again if -- as they predicted -- they eventually won the language fight.
"We lost months in court that we could have used to get the petitions," said Asher.
He predicted that the measure would be back and would win in 2010. Asher, formerly director of admissions at North Central Missouri College, said he was inspired to help the movement in part because he saw scholarships at the community college that favored some groups over others. "I was concerned over whether this is something I should be involved in," he said.
But defenders of affirmative action see other lessons in the Missouri experience. "I believe that failing to obtain enough signatures to support the petition is a clear message from the citizens of Missouri," said ReNee Dunman, director of equal opportunity and affirmative action at Old Dominion University and president of the American Association for Affirmative Action.
Dunman said that Missouri officials were correct to challenge the language proposed in the petition drive. She noted that by including phrases like "civil rights" in the names of the measures, opponents of affirmative action adopt language that has been used by advocates for minority students over the years. She also noted that Missouri's secretary of state had been trying to draw attention to the reality that certain programs would be eliminated under the measure.
"It has always struck me as strange," Dunman said, that critics of affirmative action like general statements on ballots rather than saying exactly what programs they would like to end. She said it was important for defenders of affirmative action to "fight for transparency" because "when people have all the information, they are supportive."
Should the measure be on ballots in Arizona, Colorado and Nebraska, the debates could be different from those that played out in California and Michigan. In those two states, admission to the flagship public universities is extremely competitive and there was considerable focus on who was getting in and why. While admissions are competitive at places like the University of Colorado at Boulder, these institutions are not the same and some are quite different. Arizona State University, for example, expands enrollment to admit all qualified undergraduate applicants, so the image of rejected white applicants -- an image successfully used in past campaigns against affirmative action -- may be less powerful.
Where the impact is more apparent, however, may be in professional school admissions. Officials in all three states predicted that the immediate aftermath of a vote to end of affirmative action could be most visible there.
Marc Schniederjans, a professor of business at the University of Nebraska at Lincoln and chief spokesman for the effort to ban affirmative action in his state, said that "I get some of my volunteers from people whose children and grandchildren were blocked by quotas" from being admitted to the university's law and medical schools. Asked if he could demonstrate that there are quotas at the institutions, he said, "you know how they operate," adding that professional schools use "goals" as code words for quotas.
He also said that there were basic issues of fairness in universities spending money on programs for people of specific racial groups. "We have counties that have virtually no African Americans living in them, but tax monies are used for African Americans or others to come to Nebraska from out of state for college," he said.
In Arizona, a more ethnically diverse state than Nebraska, the executive director of the group pushing for the elimination of affirmative action points to himself as a symbol of sorts. One wouldn't necessarily guess that someone with his name, Max McPhail, is Asian American. McPhail noted that he was born in South Korea but adopted and raised by a white family in the United States. He said he was raised never to think of himself as being Asian or white or "anything but an American citizen." When he applied to college and enrolled at Michigan State University, McPhail said, he never checked any of the race or ethnicity boxes on various forms.
McPhail said that he believes Arizona's less competitive admissions standards won't result in the kinds of black and Latino enrollment drops that California saw when it banned affirmative action. But even if that happens at professional schools, McPhail said, it is beside the point. He said that diversity should mean many things, but that it has come to mean just race -- and that he is frustrated by the way people use the term. "It's a horrible disservice to everyone to view diversity as about race," he said. "I don't think the government should be engineering what a classroom should look like."
In Colorado and the two states where the measure may yet qualify for the ballot, university systems are responding in different ways. The University of Colorado Board of Regents discussed the measure in private and reviewed a report identifying up to 100 programs in the system that might have to change if the measure is approved.
Ken McConnellogue, a spokesman for the system, said that the regents "have not taken an official stance, and the early indications are that they won't." He said that the affected programs include many scholarship and outreach efforts. A complicating factor, he said, is that in some cases, programs were set up for specific purposes by donors, who wanted a focus on particular groups.
In Nebraska, the Board of Regents adopted a resolution opposing the initiative. The resolution states that the universities there use only "narrowly tailored" measures that include race and ethnicity, and that such measures are legal and educationally valuable.
Doug Kristensen, chancellor of the University of Nebraska at Kearney and a former speaker of the Nebraska Legislature, said it was important to be realistic about why people sign and approve referendums -- and about the flaws in that system.
Whether the issue is affirmative action or state finances or something else, Kristensen said, items get on the ballot based on how much money groups spend to hire petition teams, and how organized and persistent those teams are. "The battleground occurs out in front of the grocery store. If they can get in your face and they don't have to explain it, and they don't have to be correct about it, many people will sign to get them to go away," he said. So items get on the ballot irrespective of whether they are good public policy.
In the legislative process, he noted, there is room to amend bills, to find compromise, to carve out exceptions -- all features that are missing in a referendum. "There is never meaningful debate," he said.
In a meaningful debate about this measure, Kristensen said, he would point out that universities can hardly be seen as having admissions or other policies that limit access to Nebraska students, most of whom are white. At Kearney, he said, 86 percent of the students are from the state, and 80 percent of students are white, while 9 percent are international, 4 percent are Latino and the remainder either do not identify their race or don't fit into a single category.
At Kearney, he said, educators feel an obligation "to help students who come from fairly homogeneous communities out into a global economy," and that means they benefit from having outreach programs and scholarships that help recruit more Latino students, for example, without denying spaces to anyone from the local community who meets requirements.
If the affirmative action ban passes, he said, university administrators don't just eliminate programs that clearly are in violation, but have to guess about programs that might be vulnerable to a legal challenge. The university's scholarships are color-blind, but the university helps private groups that distribute funds based in part on race and ethnicity to promote diversity. The university runs some outreach programs that overwhelmingly attract Latino students.
"If we organize things like that, and we spend the state's money, what is a very worthwhile benefit is now placed in jeopardy" if the referendum passes, he said. "Is there an automatic ban? No. It's all how it gets interpreted. But do I continue to help organize these things and worry about defending them? Am I going to want to litigate that? Probably not."
He said that if people understood the "unintended consequences" of these measures -- such as potentially making it impossible for private donors to help minority students in certain ways -- they might not be so quick to support a ban.
One irony about the debate over the ban, some observers said, was that a more significant shift in public discussion of affirmative action may be taking place in the presidential campaign, with more subtlety than is evident in the discussions of bans.
Richard D. Kahlenberg, author of The Remedy: Class, Race and Affirmative Action, said that he believes that voters will continue to approve bans if they are placed on ballots. "When these initiatives make the ballot, they win," he said. Kahlenberg said that supporters of affirmative action may be disappointed if they read too much into the Missouri and Oklahoma victories, which may have more to do with organization than philosophy.
But Kahlenberg said that the historic development in 2008 isn't the Connerly initiatives, but the statements of Sen. Barack Obama, who has several times answered questions about his daughters, saying that they may not deserve to benefit from affirmative action and that poor white children do. Obama has spoken of himself as a defender of affirmative action, but has added class as a factor -- to make some people eligible for help, and others not.
"He's really trying to find a third way on the question as he presents himself as a candidate who is post-racial," Kahlenberg said. While Obama has not suggested throwing out programs now in place, his arguments represent "a huge break from the traditional Democratic Party's orthodoxy on race," Kahlenberg said.
If both Obama and some of these initiatives are before voters in the fall, Kahlenberg said, "he's going to continue to be asked about these issues."