Defenders of affirmative action have learned -- as ballot measures to bar its use by public colleges spread from state to state -- how to win support from educators, business leaders and politicians. But they've yet to marshal a majority of state voters to reject one of the measures.
This fall -- with measures to ban public colleges from the use of race, ethnicity and gender in admissions and hiring expected on the ballots in Arizona, Colorado and Nebraska -- supporters of affirmative action have come up with a new approach to try in Colorado. They are attempting to place their own measure on the ballot: a proposal to affirm that it is illegal for public colleges and other state agencies to use quotas or formal point systems based only on race or ethnicity, but then goes on to say that affirmative action permitted by the U.S. Supreme Court should continue to be allowed.
The strategy — which has infuriated backers of Ward Connerly, whose group organized of the referendums in Colorado and elsewhere — is to try to take away one of his most potent weapons: discussion of quotas. Many polls show that public support for affirmative action is weakest if it is linked to quotas and strongest if linked to outreach programs. With this strategy, backers of affirmative action say they can be as anti-quota as Connerly, and change the discussion.
"There is a genuine concern about the use of quotas in higher education -- whether it's happening or not. It's not supposed to be happening, but many people obviously think that it is, so we'll agree that it shouldn't be happening," said Melissa Hart, an associate professor of law at the University of Colorado at Boulder and the president of Coloradans for Equal Opportunity,  the group pushing the anti-quota, pro-affirmative action referendum.
The group has submitted what it says are more than enough valid petitions to get on the fall ballot, and a ruling by the Secretary of State's office on the petitions is expected early next month. If it reaches the ballot, voters could approve it or the anti-affirmative action measure, approve both or reject both. If both are approved, an unusual legal battle could emerge. For now, this tactic appears to be changing the nature of the debate somewhat in Colorado and if this tactic succeeds, it is likely to be used elsewhere.
Hart said that the strategy arose out of recognition that the anti-affirmative action forces have been winning -- in part by associating affirmative action with quotas. She noted, for example, that when John McCain was asked if he would vote to ban affirmative action in Arizona, the Republican presidential candidate said he would because "I do not believe in quotas."  Supporters of affirmative action have long argued that they don't believe in quotas either, but Hart said that message gets lost.
"To the extent that there is any ambiguity about quotas, this would eliminate even that small possibility," she said, while reminding people of scholarship programs and outreach efforts that they are more likely to support. "We believe that if people understood the way race and gender are taken into account as part of a comprehensive evaluation of a person, that wouldn't trouble them," she said.
Hart also said that she believes that the anti-affirmative action movement has consistently used "deceptive language" to confuse voters into signing ballot petitions and voting for their measures. She said she was frustrated to see groups that are working against diversity efforts include "civil rights" in their names, leading some minority individuals to assume they could trust these organizations.
Now that Coloradans for Equal Opportunity has been created, the anti-affirmative action group is accusing it of deceptive tactics. "This is the mosts cynical use of the initiative process, and their initiative was created just to confuse and deceive voters," said Jessica Corry, executive director of the Colorado Civil Rights Initiative,  which organized the ballot measure -- already certified -- to bar affirmative action by public colleges and other state agencies.
Corry hinted that, if the other measure is certified for the ballot, her group would go to court to try to block it. "We have concerns that their signature gatherers may not have been valid," she said. (Corry's group has been distributing a recording of someone seeking signatures for the Coloradans for Equal Opportunity measure giving out incorrect information -- something organizers of that ballot measure say was not typical of their effort, but resulted from one confused person's misstatements.)
Corry predicted that once voters understand that the alternative measure would preserve affirmative action in many forms, they will reject it. "Overwhelmingly, Americans believe that's wrong," she said.
Outside of Colorado, the new strategy to defend affirmative action is being watched carefully. The Leadership Conference on Civil Rights has provided some financial backing for the effort. And Shirley Wilcher, executive director of the American Association for Affirmative Action, called the Colorado strategy "a fascinating approach." She said that critics of all affirmative action make "a not-so-subtle misrepresentation of current law" to imply that quotas remain legal. "I think this will help voters understand," she said.
Of course one issue acknowledged by both sides in Colorado is that not every citizen arrives in the voting booth having thoroughly studied all of the ballot measures. Although leaders of both measures in Colorado say that the same person shouldn't logically vote Yes on both, they also say it's quite likely many will do so. In fact, some political observers believe that if both measures are on the ballot, both will pass.
Under Colorado law, if two apparently conflicting measures both pass, the Colorado Supreme Court would attempt to determine whether they could be reconciled. In such deliberations, both sides are expected to file briefs that would argue that their measure should be the controlling one. Hart said that proponents of the measure keeping affirmative action would argue that their measure is clearer, but Corry said her group would argue the opposite. If the justices determine that the two measures could not be reconciled, only the one with the highest vote total in support would be enacted.