Law & Courts

Effect of Nebraska’s Racial-Preference Ban Weighed

By Catherine Gewertz — November 14, 2008 4 min read

A week after Nebraska voters outlawed racial and gender preferences in hiring, contracting, and public schooling, education leaders there said they don’t expect it to force significant changes in most aspects of school operations.

An education coalition in Colorado, meanwhile, was laying the groundwork to challenge a newly approved constitutional amendment that prohibits those who hold no-bid contracts with state and local governments—including teachers’ unions—from making contributions to candidates or political parties.

Voters’ Nov. 4 decisions on the Nebraska Civil Rights Initiative, which won 58 percent of the vote, and Colorado’s Amendment 54 on contracts, which passed with a still-unofficial 51 percent, were just two of many state and local education-related measures nationwide this fall. (“Education-Related Ballot Items Reflect Fiscal, Policy Concerns,” Nov. 12, 2008.)

Ward Connerly, a former University of California regent known for securing bans on affirmative action in California in 1996, Washington state in 1998, and Michigan in 2006, led efforts to place similar proposals on the ballots in Nebraska and Colorado this year. But Colorado voters narrowly defeated the proposed constitutional amendment in their state, with 50.8 percent rejecting it.

Melissa Hart, a University of Colorado law professor who helped lead that state’s opposition to the measure, Amendment 46, said she was “thrilled” that the state was the first in the nation whose voters rejected a proposed affirmative action ban on a statewide ballot. But she worried that the Nebraska measure could have a “chilling effect” there on programs and practices aimed at improving diversity in schools.

“It is likely to cause people making decisions to put a thumb on the scale against women and people of color because they are worried that it could be litigated,” she said.

Mr. Connerly said the Nebraska initiative would likely have only a minimal effect on K-12 education. But as the measure forces colleges and universities to end race- and gender-conscious practices, it can send a potent message to precollegiate policymakers, he said.

“From higher education, policies often filter down and affect K-12,” he said. “If higher ed believes there is inherent value in diversity, then K-12 tends to parrot that.”

Caution in Hiring?

Jess Wolf, the executive director of the Nebraska State Education Association, a 28,000-member affiliate of the National Education Association, said schools might have to adjust their hiring practices. Because 73 percent of Nebraska’s K-12 teachers are female and 97 percent are white, schools have made efforts to hire more men and build more racial diversity into their teacher corps, he said. About one-quarter of the state’s 287,000 students are members of racial- or ethnic-minority groups.

“Districts in Nebraska have been able to be pretty sensitive to gender and race in hiring to balance their staffs,” Mr. Wolf said. “After this, they will probably have to be a little more cautious.”

Amber Hunter, who oversees diversity recruitment as an associate director of admissions at the University of Nebraska-Lincoln, said that the campus has already retooled outreach to concentrate more on low-income students and those who would be first-generation college students, but it may have to remove ethnicity as one of the criteria in some of its scholarships.

The university’s four-campus system has a minority enrollment of 9 percent.

Brian Halstead, the general counsel for the Nebraska Department of Education, also doubts the constitutional amendment will have much effect on precollegiate education, since the legislature has already taken steps to focus more on socioeconomic status than on race in tackling school equity issues.

He cited the state’s “enrollment option” program, which allows students to attend schools in other districts. School systems once could refuse such students if accepting them would aggravate racial imbalances, Mr. Halstead said. But the legislature has ruled out race as grounds for refusal.

Elizabeth Eynon-Kokrda, the general counsel for the 47,000-student Omaha school system, said its student-assignment plan is already based on children’s socioeconomic status. Whether the district has to change its diversity-conscious teacher-hiring practices will “turn on the precise meaning of the language” in the amendment, she said.

A new equity effort by the state legislature, called the Learning Community, focuses not on race but on decreasing concentrations of poverty in the schools in the 11 districts of metropolitan Omaha, Ms. Eynon-Kokrda noted. Once seated in January, the board of the Learning Community will have as its chief task, she said, the design of a “diversity plan” that aims to have about 35 percent low-income students in any one building, to approximate the overall poverty level in the 11-district region.

In Colorado, meanwhile, a coalition that includes the two statewide teachers’ unions is considering its options for challenging Amendment 54, which prohibits individuals or groups that have “sole source” government contracts worth more than $100,000—those secured without competitive bidding—from contributing to candidates or political parties.

Lynea Hansen, a spokeswoman for the coalition, said the amendment violates teachers’ rights to free speech and petition by “not allowing them a voice” in the political process.

A version of this article appeared in the November 19, 2008 edition of Education Week as Effect of Nebraska’s Racial-Preference Ban Weighed

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