When California voters decided to end affirmative action two years ago, activists predicted a nationwide tidal wave of similar measures requiring race- and gender-blind policies.
This fall, Washington State will vote on a ballot initiative similar to California's Proposition 209.
But beyond that, the wave has hit a jetty. Efforts in Colorado, Florida, and Ohio to collect signatures for ballot initiatives have foundered. In state legislatures, Prop. 209-type bills were introduced in 13 states over the past two years - none were successful.
On Capitol Hill, the Republican-controlled Congress has also backed away from early promises to roll back affirmative action. Just last week, the House soundly defeated a proposal to end racial and gender preferences in public colleges and universities. A similar measure on the transportation bill failed in March. And when Rep. Charles Canady (R) of Florida unveils soon a new version of his broad bill to limit federal affirmative action, congressional observers don't expect the Republican leadership to push for it anytime soon.
What happened? Ward Connerly, father of Prop. 209 and guru of antipreference forces, has a two-word explanation: identity politics. "People don't want to be called a racist," says Mr. Connerly, a black businessman in Sacramento, Calif.
If you ask politicians - Republican or Democrat - how they feel about giving people preferences on the basis of race or ethnicity, 80 percent will say "no," says Connerly. But when it comes time to vote, "you get these glossy looks. The only explanation of their conduct is that they don't want to be seen as taking something away from minorities."
But Connerly and his allies are hardly despondent. They've sunk their teeth into the Washington State initiative, where early polling shows a majority of voters support the measure. And more broadly, they have a slow-moving tidal wave of another sort on their side: the judiciary.
The courts and public opinion
In recent years, the courts - including the US Supreme Court - have consistently tightened the standards for affirmative-action programs, or in some cases thrown them out completely. In the latest example, last month the US Court of Appeals for the District of Columbia eliminated a 10-year-old program at the Federal Communications Commission designed to boost opportunities for minorities and women in broadcasting.
There is a certain irony in the way the affirmative-action debate has unfolded. Polls show the public opposes affirmative-action programs when they are characterized as involving "preferences," yet the bodies that are most responsive to public opinion - state and federal legislatures - are hesitant to alter them.
It is in the courts - the branch of government most removed from the influences of public opinion - where foes of affirmative action are making the most headway.
Antipreference observers say the courts are, in their own indirect way, reflecting the "will of the people." They note that today's judiciary contains a preponderance of judges appointed by 12 years of conservative, popularly elected administrations.
Ellen Spears, spokeswoman for the Southern Regional Council, an Atlanta-based civil-rights group, however, does not believe they are necessarily reflecting popular opinion. "These are courts that have been packed with Republican judges over a systematic period of time," she says. "So it's true, there's a lot of judicial activism in these cases. But that's not the main battleground that people want to be on right now."
Indeed, while polls show that many Americans may not support "preferences," most don't feel threatened by them - especially in a strong economy. Therefore, there is not a great groundswell of public activism for undoing affirmative action programs. The term "affirmative action" on its own enjoys strong public support.
The inability of activists in Colorado, Florida, and Ohio to gather anywhere near the required signatures to put an antipreference initiative on the fall ballot reflects this laissez-faire attitude about "affirmative action" - no matter how it's characterized. The Washington State initiative, in fact, was also headed for failure until Connerly's group, the American Civil Rights Institute, stepped in and provided the cash and logistical support that allowed local organizers to gather the necessary signatures.
Some opponents of preferences believe that, eventually, legislatures and courts will sing from the same sheet and do away with programs they view as outdated.
"By the middle to the end of the first decade of the next century, laws and [court rulings] will be very close to the same thing," says Terry Eastland, a conservative legal scholar and author of two books on affirmative action. "Every moment we get further away from the 1960s, the idea that we should not count or credit on the basis of race or ethnicity will be increasingly compelling."
Connerly isn't so sure legislatures will ever come around. "I think the Congress will never act," he says. "Their attitude is, let the courts solve it." And he believes, ultimately, courts will eliminate preferences.
In the meantime, he is hoping the voters of Washington will send a signal to the rest of the country. "If you can get a state like Washington to have people come forward and say no, we're going to end preferences, that's a prototype of probably 20 or 30 other states," he says. "And no one can make the case in Washington that even though they're 80 percent white, they're a bunch of bigots.