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Affirmative action opponents will again be making a bid to amend Utah's Constitution to ban preferential treatment of individuals when it comes to hiring, contracting or university admissions in the state.
But identifying where — and even if — any such preference exists in the state is another matter.
Many of the largest state and local entities that would be covered by the proposed amendment told The Salt Lake Tribune that they don't give any preference to applicants based on race or gender.
The argument for the amendment, according to Ward Connerly, whose American Civil Rights Institute has successfully pushed nearly identical ballot measures in five other states, is that today's society should be colorblind.
"[The amendment] is very plain language," Connerly said at a recent debate. "It means that every one of us is entitled to be treated as an equal by our government. We have fought long and hard for that principle, and now I think it is time we honor it."
The Utah Constitutional Revision Commission is conducting a thorough study of the effect of the proposed amendment, with an eye toward what programs might have to change.
"I can't answer how many programs" would be affected, Rep. Curt Oda, R-Clearfield, sponsor of the amendment during the past legislative session, said recently. "Obviously, there's going to be some programs, but anything that is federally funded is not going to be impacted."
Earlier this year, he was unable to cite an example of the problem: "It exists, but I can't name names."
He said during a recent debate that he knew of two white men who were passed over for admission to the University of Utah law school while a less-qualified minority applicant got in.
But in an email late Wednesday, Oda said, "I will not give you any examples because you would then go to them to talk and that would be a warning to them. Your inquiries would precipitate cover-ups and compromise any future audits. If there really is no problem of preferential treatment, as our opponents purport, then why are they so adamantly wanting to keep it going?"
Hiram Chodosh, dean of the U. law school, said nobody can say why one applicant is accepted while another isn't without knowing all the 30 factors that the admissions panel considers.
He said the review committee might favor an applicant who has overcome significant or socioeconomic challenges — whether or not it is related to race or ethnicity — but there is no automatic benefit.
"I can say flatly that any assertion that there is a per se preference based on race, gender, ethnicity or any other factor in the process is wrong. It's baseless," he said.
Chodosh said that as the university has become more competitive, good grades and test scores aren't enough. Nearly 70 percent of applicants aren't accepted, but, he said, he doesn't think the admissions practices would have to change if the amendment is passed.
Supporters of the amendment also cite a 2002 legislative audit that indicated that women and minorities had a higher rate of acceptance at the U. medical school than white men.
Since then, the medical school has formalized its admissions criteria, ranging from GPA and test scores to leadership activities and patient interaction, said Kim Wirthlin, vice president of government relations at the U. Race and gender aren't among the criteria.
"It's not even considered," she said. "Anytime we've got a really competitive program, there's a tendency for someone to think, if their son or daughter didn't get in … there's a reason to think their son or daughter was discriminated against."
Octavio Villalpando, the associate vice president for diversity at the U., said the school doesn't consider race, gender or ethnicity in undergraduate admissions, either.
But Villalpando, who was on the faculty at UCLA when California banned affirmative action in 1997, said there are unintended consequences. For example, programs that encourage women to go into the sciences, where they are typically underrepresented, can fall by the wayside.
"What many institutions have had to do is dismantle those programs, even though they're completely legal and, in essence, reverse the successes the programs have had," he said.
"These kinds of laws and amendments very quickly devolve into all sorts of unfounded challenges, and I think the question the public needs to ask itself is whether these proposed laws are even necessary."
Utah government hiring rules prohibit any race or gender preference, said Jean Mills, spokeswoman for the state's Department of Human Resource Management, which sets policies governing more than 17,000 state workers.
Likewise, Kent Beers, the director of the state's purchasing division, which oversees $1 billion a year in equipment, construction and materials purchases, said race and gender don't factor in to the awarding of contracts.
Neither Salt Lake City nor several of the state's largest school districts have preferences for race or gender, according to spokesmen for the entities.
Salt Lake County is one entity where some consideration may be given to race or gender. The county has established targets for minority representation in the county work force, said Debra Smith of the human resources division.
In some instances, if that minority group is underrepresented in a department and there isn't a member of the group among the finalists for a position, a qualified minority candidate might be added to the list, Smith said.
But that doesn't change the end goal.
"Their responsibility is to hire the best-qualified person for the job," Smith said.
Chris Wangsgard, a Salt Lake City employment lawyer, said it's not surprising that none of the agencies would say they give preferential treatment to minorities or women, because that would be contrary to recent U.S. Supreme Court rulings.
It will likely take some litigation, Wangsgard said, to figure out exactly what changes might have to be made if the constitutional amendment passes.
"This is all part of an ongoing struggle about how are we going to work out these issues about race and national origin in the country?" Wangsgard explained.
What's next?
The Constitutional Revision Commission will meet at 1 p.m. Thursday in Room 450 of the Capitol to discuss the proposed ban on preferential treatment in hiring, contracting or college admissions based on race, gender or ethnicity. —
Not here
Below are the agencies that said they do not engage in preferential hiring, contracting or admissions based on race, gender or ethnicity:
Utah Department of Human Resource Management
Utah Division of Purchasing
Utah Department of Transportation
University of Utah, undergraduate, law school and medical school
Utah State System of Higher Education
Salt Lake City human resources
Salt Lake County human resources
Granite, Alpine, Davis and Canyons school districts