Measure targets affirmative action

Amendment 46 would end gender, racial preferences

By Kevin Flynn, Rocky Mountain News (Contact)

Published September 17, 2008 at 12:05 a.m.

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Photo by Dennis Schroeder / The Rocky

Meheret Ashagre, left, walks between classes Tuesday at Metropolitan State College of Denver. Ashagre says she wouldn't be in school without affirmative action, which, she says, helps the people who need it the most. "Things weren't and are not at the same level for minorities," she said. "They can eliminate affirmative action, but that doesn't eliminate discrimination."

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CORRECTION: An earlier version of this story should have said a ballot measure similar to Amendment 46 is also on the ballot in Nebraska, but not Arizona.

Civil rights, equal opportunity and preferential treatment collide in Amendment 46, the first statewide issue on the crowded November ballot.

It would be unconstitutional under the measure for government agencies in Colorado to consider race and gender in most hiring, contracting or school admissions, effectively ending affirmative action-type programs dating to the 1960s.

"The state," reads the first paragraph, "shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting."

Its effect is to invalidate the use of race or gender in any affirmative action program. Amendment backers say such programs can continue but would have to allow everyone to participate.

That means a government contracting program aimed at disadvantaged businesses would be open to qualifying companies owned by white men, too, and mentoring programs for the college-bound would have to admit white students using the same criteria as minorities.

Decisions would be based on class and need rather than color or gender, said the measure's principle spokeswoman, Jessica Corry, who works for the Independence Institute, a free-market think tank based in Golden.

Opponents, however, say racism and sexism are still separate problems from class divisions, and programs to address them should be legal.

"There are still disadvantages in our society that come from being part of an individual race," said Melissa Hart, a University of Colorado law professor leading the opposition campaign, Coloradans for Equal Opportunity.

"We can't address all of the equal opportunity problems simply by focusing only on class disadvantage," Hart said. "We have to acknowledge the additional disadvantages that come with race."

Amendment 46 makes exceptions for situations reasonably requiring preference. It also exempts pre-existing court-ordered programs and federally mandated programs that are a condition of receiving federal money.

Dubbed the Colorado Civil Rights Initiative, the amendment is identical in its effect and wording to the 1996 California Proposition 209, which was pushed by affirmative action opponent Ward Connerly, of Sacramento. Connerly has backed the same measure successfully in Washington and Michigan, and this year it is also on the ballot in Nebraska.

In California, the share of state transportation contract money going to minority firms has dropped by half since Proposition 209 passed, and the share for women-owned firms has dwindled by 40 percent.

Hart said colleges should be able to consider race and gender as among many factors when evaluating admissions.

Corry acknowledged numbers from California showing that since passage of Proposition 209, the proportion of minority enrollment has dropped at the premier California campuses.

But Corry says minority graduation rates systemwide in higher education have improved.

This claim was disputed in May by Craig Hughes, spokesman for Vote No on Amendment 46. "Minority admissions to the University of California system dropped precipitously," Hughes said, "While the numbers have recovered to some degree, they are still not at the level that they were prior to enactment of 209."

What Amendment 46 would do

Prohibit the state from granting preferential treatment to anyone on the basis of race, sex or ethnicity in hiring, education and contracts, effectively eliminating race- and gender-based affirmative action programs.

* Who is for it: The Colorado Civil Rights Initiative Committee

* The money behind it: $360,010 raised through Sept. 2.

$346,870, or 96 percent of the total, comes from organizations run by California entrepreneur Ward Connerly.

* Who is against it: Coloradans for Equal Opportunity

* The money against it: $281,050 raised through Sept. 2.

$247,655, or 88 percent of the total, comes from the Leadership Conference on Civil Rights in Washington, D.C.

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