Leaders of an effort to repeal Nebraska’s ban on affirmative action will keep pushing to remove it from the state constitution, even though they were unable to put the issue before voters this fall.
Omaha City Councilman Ben Gray and Douglas County Board member Chris Rodgers had launched a hurried effort to get a repeal of the ban onto the November ballot. They were hoping that an urgency to address racism would help reverse Nebraskans’ overwhelming vote — 58% to 42% — to adopt the measure, Initiative 424, in 2008.
The City Council and County Board both passed resolutions in mid-July asking the Nebraska Legislature to put an initiative on the November ballot to repeal the amendment. But it was too late, even if legislation could have cleared a steep uphill climb during a pandemic-shortened session. The language needed to have been submitted by July 2, Nebraska Secretary of State Bob Evnen said.
Now the soonest that the issue could be put before voters would be November 2022, the next general election in Nebraska. Rodgers said it may be better to wait even longer, until the next presidential election in 2024, and in the meantime make greater use of measures currently available.
“Right now, emotions are high,” Gray said. “The anger is great, but you know how that goes. A lot of times that lasts for a month and it goes away. But those of us who are committed to this, we’re going to keep this going. I’m hoping that it’ll be a whole group of us, but if it’s just a few of us, we’re still going to keep it going, because it’s an important discussion we’ve got to have.”
State Sen. Ernie Chambers said the Legislature is not likely to put a repeal on the ballot.
“There was no way that whatever little affirmative action they may have had going on harmed white people in any way,” he said. “So by having been conceived in racism, and executed on that basis, this Legislature in my opinion is not going to put that on the ballot for people to vote for it because they don’t want to look like they favor it.”
State Sen. Justin Wayne was willing to try to introduce a bill in the Legislature this month, but decided not to when it became clear it was too late. He said he would focus instead on Legislative Bill 1218, which seeks to make minority-owned businesses more likely to obtain state contracts.
Also, the ballot in November will include two measures sponsored by Wayne: additional time for people to pay back tax-increment financing in high-poverty areas, and an amendment to remove language in the Nebraska Constitution that allows people to be enslaved as punishment for a crime.
Nebraska had a lively debate on the affirmative action ban 12 years ago.
Initiative 424 was promoted by the out-of-state American Civil Rights Institute and local supporters. They formed an organization, the Nebraska Civil Rights Initiative, with the backing of an anti-affirmative action California businessman named Ward Connerly. He had successfully promoted similar measures in California, Washington and Michigan.
Supporters sought to prohibit programs that offered public higher education scholarships or government contracting and jobs to minorities and women. They contended that those practices amounted to discrimination, and that banning them would put everyone on an equal footing.
A petition drive collected 136,589 valid signatures, more than the 112,152 needed to put the proposal on the ballot in 2008. The 58-to-42% margin of victory for the initiative was the same in Douglas County as it was statewide — in a presidential election in which metropolitan Omaha’s 2nd Congressional District gave its electoral vote to Barack Obama.
The initiative survived a lawsuit claiming that thousands of the signatures were fraudulently collected.
Gov. Pete Ricketts, who donated money to the Initiative 424 campaign before he became governor, remains a supporter today.
“Governor Ricketts is opposed to racial discrimination, and especially state-sponsored discrimination, which is why he continues to support the amendment which the people of Nebraska passed in 2008,” said his spokesman, Taylor Gage. “Rather than recycling the failed policies of the past that divide communities, the governor is focused on bringing people together and working with communities around the state to help more Nebraskans take great opportunities that will help them achieve their dreams.”
As adopted, Nebraska State Constitution Article I-30 says, “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Opponents argue that banning affirmative action doesn’t create equal opportunity; rather, it preserves inequality and prevents equal opportunity. They say Black people and other people of color face discrimination in education, business and employment, and that affirmative action is needed to overcome historical disadvantages so that they can compete equally.
The initiative was opposed by the Greater Omaha Chamber of Commerce and Warren Buffett.
Critics contend that the wording of Initiative 424 was misleading and that the advertising for it was deceptive.
“The ban has perpetuated disparities, racial injustice and systematic racism in our state and represents a barrier to improving diversity, inclusion and equity at local government and community levels,” said Vickie Young, president of the Omaha chapter of the NAACP.
Young was one of about 30 people who testified in support of the repeal resolutions at the Omaha City Council or Douglas County Board. Another person who testified, Willie Barney, noted how diverse the supporters were — white, Black, Hispanic, young, old. They included a white man who said he knows from personal experience that discrimination still exists because he got a truck driving job over a Black applicant who was more qualified.
Barney, president of the Empowerment Network in Omaha, called it “huge” that the local legislative bodies passed the resolutions and that Omaha Mayor Jean Stothert said she supports repealing the affirmative action ban. Barney interpreted the public hearing testimony as a sign that public opinion on Nebraska’s affirmative action ban is shifting. He said he has had many conversations with business people and other Omahans acknowledging racial disparities and looking for ways to overcome inequality.
“What was really encouraging was the overwhelming support from individuals, organizations from around the city, across race, across geography, across age, that recognized that this is something that has to be addressed,” he said. “Secondly … this is just one tool of many, one opportunity of many. It’s not the whole answer. It’s really about looking at every avenue possible to really close those gaps.”
Rodgers said he will work with Gray and others to use and improve currently available tools, such as the Small and Emerging Business Program that the City of Omaha created after the affirmative action ban passed. Rather than considering race, the program aims to increase city contracting and purchasing with businesses from low-income neighborhoods, many of which are in parts of the city with majority Black or Hispanic populations.
The death of George Floyd in Minneapolis and protests that followed “have opened the eyes of people, and right now we have to take every opportunity we can to chip away at systemic racism.”
In what could be a sign of shifting public opinion, a conservative University of Nebraska-Lincoln chemistry professor who supported Initiative 424 — so much that he helped collect signatures for it — now supports repealing the constitutional amendment it created.
“My views on it are not what they were in 2008,” Professor Gerard Harbison said by email last week. “America has changed, and so have I. … Back in 2008 I thought racism was mostly a thing of the past. That was incredibly naive of me, as the last 10 years have proven.”