Both sides assert affirmative action referendum will help veterans

Both sides of the debate over Referendum 88, an affirmative action measure on Tuesday’s statewide ballot, say their position is best for veterans.

A Spokane lawyer who specializes in employment law and veterans issues says it will take away help that’s currently in state law.

“Something guaranteed is being thrown out in place of something that’s a ‘maybe,’” said Thomas Jarrard, who handles cases under the Uniformed Services Employment and Reemployment Rights Act.

The state Veterans Bar Association and the campaign to get voters to mark Rejected on the Nov. 5 ballot agree with that view.

But a recognized expert on the state constitution says it adds opportunity for veterans in government contracting and public colleges. Initiative 1000 was approved by the Legislature earlier this year.

Veterans “actually get increased protection,” said Hugh Spitzer, who teaches constitutional law at the University of Washington. He believes existing statutes that give preferences to veterans, and in some cases their spouses, would not be affected if voters approve Referendum 88.

The progressive group VoteVets and the campaign to keep Initiative 1000 on the books by voting Approved on Referendum 88 believe Spitzer is right.

The debate over veterans is similar to the larger debate over whether the proposed law helps or hurts certain minority groups, including Asian Americans of Chinese descent. .

Current law forbids discrimination or “preferential treatment” based on race, sex, ethnicity, sex, color or national origin in government employment, contracting or public colleges. But the law, which comes from an initiative approved by voters in 1998, doesn’t define preferential treatment.

That’s been a barrier to most affirmative action programs.

But one affirmative action program that has been able go forward, due to a specific reference in the law, allows for expanded employment in the State Patrol for some groups as long as there’s no quota system.

Last year, some 395,000 voters signed petitions for the Legislature to change the existing affirmative action law through Initiative 1000.

Legislature approved the change on a mostly party-line vote in the closing hours of the 2019 session, but opponents seeking to reverse that approval put forward Referendum 88. After gatheringsome 213,000 signatures, the referendum got place on the ballot, giving voters a chance to overturn the Legislature’s decision and maintain the status quo on affirmative action.

If voters approve Referendum 88, the changes made in I-1000 will take effect, allowing race, sex, age, sexual orientation, disability, veteran status and other characteristics to be considered when a person is seeking a government contract, a public job or enrollment in a state college.

While I-1000 allows these characteristics to be factors in how public education and employment opportunities are granted, it still forbids “preferential treatment,” which it defines as using any of those characteristics serving as the sole factor in making those decisions and allowing a lesser-qualified person to be selected over a more qualified one. It also forbids the use of quotas.

Supporters of I-1000 say it would amend the old law to guarantee every state resident “equal opportunity and access” to public programs. Opponents say it would eliminate the old law and allow discrimination in favor of certain groups, which amounts to discrimination against everyone else.

Separate from the provisions of the 1998 initiative that forbid discrimination or “preferential treatment,” state law already gives certain preferences to veterans.

Under one chapter of state law, a veteran applying for certain government jobs that require a test can get up to a 10% increase in their test score; for their first promotion, veterans can get a 5% increase on a test score.

Under another chapter, a section dating back to 1895 gives veterans a preference for hiring for public jobs.

The state Supreme Court has held that with those two chapters, preferences must be given to qualified veterans who pass entry-level requirements, where two or more candidates have equal qualifications, Jarrard wrote in a recent memo.

But a section of I-1000 says the state shall not grant preferential treatment to any member of the groups listed – and one of those groups is veterans.

There’s a conflict between existing law and I-1000, he wrote, “and when challenged the existing veterans preference statutes will fall by the wayside.”

Spitzer believes I-1000 doesn’t conflict with those laws because they don’t set up situations where being a veteran is the sole factor.

If a veteran receives a boost in a score when competing for a job that has a test, the extra points that put him or her ahead of another candidate and in line for the job are not the only factor. The veteran first must get a passing score on the test, then must do well enough to have a score that is tied or so close to another applicant that the extra points matter, he said.

Although the century-old law for veterans is titled “Preference in Public Employment,” Spitzer said that wouldn’t conflict with I-1000, which defines “preferential treatment” a specific way and bans it in public employment solely on factors that include veterans status.

The old law comes into play when two candidates are ranked equally after applications, interviews and any other qualifying processes, he said, so veteran status isn’t a sole factor but part of the whole process. The veteran is not being elevated above someone with more qualifications.

But if a nonveteran has a slightly higher score on a qualifying test, and the veteran’s bonus points are added to move him or her above the other applicant, that would mean the veteran is getting preferential treatment, Jarrard said.

“I know these statutes inside and out. This is eliminating veterans preference,” he said.

The two attorneys agree that the courts could harmonize the different statutes if problems arise.

Jarrard said the courts could come down on the side of rejecting the older mandatory preference because I-1000 is very specific compared with the more general older statutes. Even if they don’t, he added, government agencies could be defending themselves against lawsuits from veterans or nonveterans over the way the laws were applied.

The initiative was poorly written and “jammed through at the last second,” he said.

Spitzer said the statutes might theoretically be in conflict but would be read together in a way to give each one its full effect. I-1000 also provides a way to fix any conflicts, he added, because it gives legislative staff three months after it takes effect to prepare a memo and draft legislation for any necessary changes.

Anyone nervous about possible problems should realize they can be addressed by the Legislature, he said. A 30-member Commission on Diversity, Equity and Inclusion also will be set up to monitor compliance with the new law.