Posted: July 01, 2008

Civil action

Initiative to end affirmative action in Colorado fires up minority and women business groups

Eric Peterson

"The state shall not discriminate against or grant preferential treatment to any group or individual on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public contracting, or public education."
—Excerpt of the ballot for Amendment 46

President John F. Kennedy coined the term "affirmative action" in 1961. In the time since, it has come to mean different things to different people. But nearly everyone agrees that affirmative action programs at their core promote diversity within the business community, educational institutions and government workforce.

Not Ward Connerly.

Often described in shorthand as a millionaire executive from California, Connerly is a former University of California regent and construction industry consultant of mixed-race heritage who says he believes affirmative action doesn’t fight racism or sexism but, in fact, encourages both by setting the bar lower for minorities and women.

The Sacramento-based leader of two political nonprofits, the American Civil Rights Coalition and the American Civil Rights Institute, Connerly makes no apologies for his crusade.

And now he’s taken his fight to Colorado.

Detractors contend Connerly is merely a pawn for the good old boys network that is the mainstream construction industry. They argue he’s in the pocket of the big contractors and the extreme right-wing fringe, that all of his money comes from out of state, and — last but not least — that his petitioners illegally deceived voters to get enough petitions to get their anti-affirmative action measure, Amendment 46, on the November ballot.

Connerly argues affirmative action should have been a temporary period of preferential treatment for African Americans, but today the world has passed the concept by.

He believes the expansion of affirmative action to permanently offer preferential treatment to women and all minorities is counterproductive to society at large.

"It has become the disease it sought to cure," he says. "At first it made sense, but now it’s become its own kind of discrimination. Imagine the daughters of Barack Obama getting admission to college based on racial preferences over the daughters of a white taxi driver.

"My guiding philosophy is the government has the obligation to treat everybody equally, regardless of their skin color, their sex, their race, or their religion," Connerly says. "To do otherwise is to diminish all of us."

Amendment 46 echoes California’s Proposition 209, which passed into law behind Connerly’s support in 1996, and similar measures that voters have since approved in Washington state and Michigan.

At press time, the petition for Amendment 46 was in legal limbo. A challenge filed by opponents claim that there aren’t enough valid signatures and that paid petitioners used deception to trick Colorado residents into signing.

The initiative has become part of a national debate, prompting a response from the Democratic Party’s presumptive nominee at the request of USA Today.

"Sen. Obama believes in a country in which opportunity is available to all Americans, regardless of their race, gender or economic status," said Candice Tolliver, an Obama campaign spokeswoman, in a story published June 10. "That’s why he opposes these ballot initiatives, which would roll back opportunity for millions of Americans and cripple efforts to break down historic barriers to the progress of qualified women and minorities."

Sen. John McCain, the presumptive Republican presidential nominee, favors strict enforcement of anti-discrimination laws over broad-based quotas.

"We must recommit ourselves to the ideal that every individual is created equal in the eyes of God and every individual must therefore be treated equally under the law," McCain said in a written response through his press office. "It also means rejecting affirmative action plans and quotas that give weight to one group of Americans at the expense of another. Plans that result in quotas, where such plans have not been judicially created to remedy a specific, proven act of discrimination, only result in more discrimination and violate the concept of equality of opportunity."

Craig Hughes of Democratic political consulting and polling firm RBI Strategies & Research in Denver says the current situation is in "uncharted waters," legally speaking. "This type of petition challenge hasn’t happened in a long time. We have no idea how long this lawsuit could go on."

Hughes says he believes Amendment 46 "seems based on deception, and that is what we have a problem with. We also don’t like the idea of out-of-state money coming in to Colorado in an effort to change our laws." He cites fundraising documents that reflect the ACRI’s local proxy, the Colorado Civil Rights Initiative, raising almost $300,000 from out-of-state donors between late February and late April 2008 to only $120 from Colorado donors. "Every penny is from California," Hughes says.

Connerly brushes such criticism aside, stating that his California-based nonprofits collect donations from all over the country and then cut checks to local grassroots groups. "There are a lot of people in Colorado who donate to the ACRC," he says, claiming his fundraising to be cleaner than his opponents. "All of the necessary disclosures have taken place."

And Connerly sees nothing in Colorado’s makeup or culture that makes it any different than any other state on this front. "I don’t pay particular attention to demographics. I pay attention to the politics of a state, and they don’t get any bluer than California, Washington and Michigan, where our initiatives have passed in the past."

'Super Tuesday for Civil Rights’

RBI Consulting’s Hughes labels Connerly’s branding of Nov. 4, 2008, as "Super Tuesday for Civil Rights" as duplicitous, and says that his initiatives have nothing to do with furthering equal opportunity.

Noting Connerly initially targeted five states — Oklahoma, Missouri, Nebraska, Arizona and Colorado — Hughes is quick to point to the ACRI’s failures. "In Oklahoma, they were challenged and withdrew their petition. They conceded defeat. In Missouri, they couldn’t get enough signatures."

Hughes points to post-Proposition 209 California as proof-positive that the elimination of affirmative action programs has serious drawbacks.

"It takes away educational opportunity for women and minorities," he says, citing far lower numbers in the student bodies at UCLA and UC Berkeley, the cream of the UC system. "It also has a chilling effect so new programs for underrepresented groups aren’t developed. In California, there’s a lawyer waiting for every new program for women or minority students."

He predicts a similar effect in Colorado were Amendment 46 to pass: "You’ve already got half of all minority students in Colorado not finishing high school. This would have a negative effect," Hughes says.

"The goal of affirmative action was to break up the good old boys network and help grow small businesses, which helps everybody. It drives the economy. It creates jobs. I think the business community broadly sees this as a bad idea."

Connerly resolutely defends his own position with statistics from the University of California system: In 1997, a year after Proposition 209 passed into law, underrepresented groups made up 18.6 percent of new freshmen. In 2008, that figure had increased to 25.1 percent.

At UC Berkeley and UCLA, "The number of black students dropped precipitously at first, but then it leveled off. This is not rocket science. If you give somebody a preference and take it away, the number is going to drop. The number is going up now.

"The college graduation rate has gone up for black students," says Connerly, citing a rate at UC San Diego double that of 1996. "Students are going to where they are most competitive. If you take kids who are 2.8 GPA students and put them into Berkeley, they won’t last.

"It also led to the government paying more for public contracts and public works," he adds, citing a study that showed CalTrans had saved up to 6 percent per year since 1996. As CalTrans’ annual budget is $6 billion, "We’re not talking chump change," Connerly says.

Discrimination or a chance to compete?
Connerly’s numerous critics argue you can’t put a price on diversity and equal opportunity.

"Number one, this is not California," says Patricia Barela Rivera, the recently retired director of the U.S. Small Business Administration’s Denver office. "And number two, this is not about abstract statistics. It’s about equal opportunity. Racism and sexism are alive and well.

"If this happens in Colorado, we will go back 40 or 50 years," she says. "It’s a disservice to the total community, not just women and minorities. It’s not a win-win, it’s a win-lose. It’s about the haves and have-nots. There are a lot of people out there who don’t want to share anything."

Rivera’s name is on the challenge to keep Amendment 46 off of the fall ballot, which says nearly 70,000 of the 129,000 signatures collected are invalid. "We are finding signatures like Donald Duck, Mickey Mouse and God — who apparently lives in Evergreen."

She says affirmative action policies personally gave her a chance to compete.

"If there had not been a goal for affirmative action, I know I could not have gotten my foot in the door." Rivera’s figurative foot got her a job with the U.S. Forest Service, which led to a job with the Office of Personnel Management, which led to her own small business, a job with Gov. Roy Romer’s administration, and her 11-year stint at the SBA. "It was the best opportunity of my entire life," she says of her initial job with the Forest Service, the result of not a quota but a goal.

"I was very tenacious," Rivera adds. "It was a matter of survival. I was a divorced mother. If it wouldn’t have been for affirmative action, I wouldn’t be where I am today. Someone put the key in my hand, and I took that key and opened the door."

While she has less personal experience with affirmative action programs, Patricia Kurgan, owner of Astro Logistics, a freight services provider in Denver, and local public policy representative for the National Association of Women Business Owners, points to a UC Berkeley Law School report that found women-owned businesses had seen a 40 percent decrease in contracts from the state of California in the decade since Proposition 209 went into effect.

"That’s pretty drastic," says Kurgan, who believes the same thing would happen in Colorado if Amendment 46 becomes the law of the land. "You don’t want to have a myopic vision. Women who are on boards are more apt to analyze a broader range of management and organizational performance. Women just have a different way of looking at things, so you want women to have a presence.

"A lot of people agree: It would be great if you could just level the playing field," Kurgan adds, downplaying the statistics Connerly touts. "But the fact of the matter is you’re never going to be able to level the playing field." Kurgan notes that at the current pace, women will be equally represented on the boards of Fortune 500 companies in 70 years.

A battle brewing
The effect of Amendment 46 on disadvantaged businesses would be substantial, says Chris Meza, owner of Denver’s Meza Construction Co. and a member of the Hispanic Contractors of Colorado.

"As a small business, large state contracts aren’t readily available" — simply based on scale. But Meza says some "set-aside" programs that push subcontracts to small and disadvantaged businesses have helped his business grow.

"We have a battle on our hands," he says.

Donna Evans, president and CEO of the Colorado Women’s Chamber of Commerce, cites the sizable and growing pay gap for women and minorities, last estimated at 79 cents on the dollar for women and less for minorities. "The premise that we’ve arrived, that we no longer need affirmative action, is not true," she says. "The big concern for me is equal access."

Evans cites the Colorado Civil Rights Initiative’s "unethical practices" as part of the problem. "When you’re approached, they say it is to support affirmative action, but that’s the opposite of what it is."

Numerous people have complained they were duped into signing a petition for Amendment 46. Betsy Stephens, Denver resident and registered voter, says she was exiting Kmart in central Denver this winter when a "college-aged" man approached with a petition.

Recalls Stephens of the encounter: "I asked him, ‘What is it? Is it pro-affirmative action?’ He said yes. I skimmed it and found it very confusing. I asked him again, ‘Are you sure it’s pro-affirmative action?’ He said he knew it was confusing and that it was. So I signed it. I should have read it more carefully."

Later seeing a "Decline to Sign" flyer from an opposition group, Stephens says she was horrified. "I was pretty aggravated to find out what was going on because this initiative is against everything I believe in."

RBI Consulting’s Hughes says Connerly’s pitch — which often references the words of Martin Luther King Jr. — is pure trickery. "The language I think is in itself deceptive," he argues. "At first reading, you think this will add to equal opportunity, not take it away."

Connerly calls the petition challenge currently facing the Amendment 46 camp "pretty frivolous stuff," defending the CCRI’s signature-gathering tactics. "My opponents are going to great lengths to keep it off the ballot, and the reason is pretty obvious: If it gets on the ballot, it will pass."

He also argues the language of the amendment — "The state shall not discriminate against or grant preferential treatment to any group or individual on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public contracting, or public education" — is straightforward and not deceptive. "It doesn’t get any more basic than that," he says.

One of Connerly’s few vocal defenders in Colorado is Jessica Peck Corry of conservative think tank the Independence Institute and a spokeswoman for the CCRI.

"This initiative came together after years of local activism," says Corry, explaining that the organization is comprised of local activists and Connerly’s national apparatus.

Corry traces her involvement in the anti-affirmative action movement to her days at CU-Boulder in the late 1990s when Connerly came to speak and was forced offstage by an angry protest.

"I’ve known Ward Connerly since I was a CU student," Corry says. "It’s been a long and respectful friendship. People say he’s black, but he’s many races. Like many people, he can’t be put in a box. It was a fundamental message of fairness."

In 2001, Corry testified before the Legislature when a bill with similar intentions to this ballot measure was making the rounds at the Colorado State Capitol. "I felt it was fundamentally unfair to treat women and minorities like an inferior class in the admissions process," she says. "I’ve never wanted to be treated like a second-class citizen. As a woman, I don’t need the government lowering the standards for me. I can make it on my own. Every woman can make it on her own."

She says University of Colorado officials "use race and gender preferences in their outreach. To me, it’s lazy. It’s only fair if every kid is targeted."

Nothing but good would come from the passage of Amendment 46, Corry argues. "The long-term benefits are very clear: that women and minorities will no longer be treated like second-class citizens," she says.

"Disadvantage transcends racial and gender lines. A white guy who starts his own business shouldn’t be discriminated against. That’s racist and sexist and unfair. It’s an antiquated notion that belongs in the 1950s.

"Race- and gender-neutral programs have been phenomenally successful," she adds.

Corry says her group’s fundraising or petitioning is on the level and brushes away questions about the reliance on out-of-state money. "If you look at people who are most negatively impacted by gender and racial preferences, women and minorities, these people don’t have a lot of money to donate to political causes. We’re very lucky to have the support of Ward Connerly and donors across the country.

"The other side has repeatedly tried to discredit our campaign, and we’ve repeatedly come out on top," she adds. "We have every confidence our initiative will be on the ballot in November."

And if it is on the ballot, expect both sides to be campaigning full force. Among the heavy Democratic hitters lining up against Amendment 46 is Wellington Webb, former Denver mayor and president and CEO of the Colorado Black Chamber of Commerce. In contrast to the right-wing Connerly’s use of liberal icons like JFK and Martin Luther King Jr. in his rhetoric, Webb is quick to point out that Richard Nixon started more affirmative action programs than any other president.

Webb does not mince words in his criticism of the former University of California regent. "This is Connerly’s mission in life. Some people have missions that make life better for other people, and some people have a mission that makes life more difficult for others. He obviously falls into the latter category."

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Denver-based writer Eric Peterson is the author of Frommer's Colorado, Frommer's Montana & Wyoming, Frommer's Yellowstone & Grand Teton National Parks and the Ramble series of guidebooks, featuring first-person travelogues covering everything from atomic landmarks in New Mexico to celebrity gone wrong in Hollywood. Peterson has also recently written about backpacking in Yosemite, cross-country skiing in Yellowstone and downhill skiing in Colorado for such publications as Denver's Westword and The New York Daily News. He can be reached at Eptcb126@msn.com

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