Affirmative action — using race as a factor in hiring or university admissions in the interest of “diversity” — might be among the most reluctantly green-lighted practices by the Supreme Court. 

Reagan appointee Justice Sandra Day O’Connor, the first woman to sit on the United States’ highest court, wrote in her majority opinion allowing strictly-limited racial preferences: “…racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands.” 

The court’s decision, made in 2003, famously placed a 25-year expiration date on affirmative action’s use as an attempt to correct for the discriminations of the past. 

For the last 16 years, the court’s unenthusiastic decision has left the matter in the hands of states, which are free to retain or ban the practice until the Supreme Court reconsiders the issue. 

Even some very progressive states such as California have banned racial preferences in public hiring and admissions decisions. Washington State made race-neutral hiring the law of the land in 1998. Now, more than two decades later, the state is reconsidering that decision, and voters will decide the matter on Nov. 5. 

If they approve Referendum 88, which overturns the 1998 ban on racial preferences, Washington’s government agencies and public universities will be free to consider race or ethnicity in their decision-making process.

Given the harsh reality of large achievement gaps between high school graduates of different ethnic backgrounds, affirmative action often leaves the students it “helps” into highly selective colleges educationally underprepared for the coursework in comparison with their peers. Ironically, because the practice “mismatches” students and universities rather than substantially increasing the overall number of minority students that go on to college, affirmative action may well result in higher dropout rates and fewer graduates of color.

And even when employees and students of color perform well, the presence of affirmative action hiring and admission policies can undermine their credibility by fostering skepticism of their merit.

Then there are those who lose out on a job or a place in a freshman class as a result of affirmative action. Soft “caps” on accepting Asian applicants in schools with “holistic” admissions processes that include race as a factor have become even more evident during the recent and ongoing litigation over Harvard University’s program. Indeed, Asian-American voters are largely responsible for the effort to put the issue to voters directly in Washington via referendum, after the legislature repealed the state’s ban in April of this year.

In an editorial in favor of the measure, local paper "The News Tribune" writes: “The measure would give public employers and state universities more latitude when selecting candidates for jobs, government contracts and academic admission. They’d be free to consider a person’s race…”

Isn’t the idea that a person’s race should factor into hiring decisions exactly the idea we were trying to get away from? Affirmative action proponents argue that such preferences are necessary to achieve some imaginary level of perfect racial parity in government employment and university admissions. 

But in Washington, as in the rest of the country, the most effective way to stop discriminating on the basis of race is to stop discriminating on the basis of race.