“I’ve run into instances in work when dealing with a city, and we’re asking questions about consultants or contractors, and a lot of times they [can’t give the] answer because of the anti-affirmative action ban,” says Charity Marcus. She’s a consultant in Tulsa, Oklahoma, who works with cities, mapping out strategies for economic and community development.
In 2012, the Oklahoma legislature passed a ballot initiative known as the Oklahoma Affirmative Action Ban, or State Question 759. The amendment passed by over 230,000 votes. The first attempt to ban affirmative action in Oklahoma came in 2008, but the validity of the signatures for a ballot measure were questioned. In 2011, Republican state senator Rob Johnson authored the resolution. The measure was modeled after affirmative action bans in other states (currently nine states have affirmative action bans).
Unintended consequences
Jennifer Jezek, who is Native American, is the president and CEO of York Electronic Systems in Broken Arrow, Oklahoma. She says that she first learned about the ban around 2019 while serving on the Oklahoma Governor’s Minority Business Council.
Jezek says that when she was researching legislation to create the Oklahoma Supplier Diversity Initiative, she was told to “tread lightly” by associates at the Department of Commerce because of the ban. She dug deeper and had conversations with local attorneys who had worked on cases that were used as precedent for the law. Eventually, she ended up speaking to some of the original sponsors of the bill. State Senator Johnson and State Representative Leslie Osborn introduced the bill. Cosponsors of the measure included John Trebilcock, Mike Jackson, and David Derby. Jezek says she was told that the original bill was recommended by the legislature “in an attempt to avoid bias in college admissions.” But the unintended consequences, she says, were in state government hiring and public contracting.
Impact on higher education
In 2017, Marcus was named to the Oklahoma advisory panel of the U.S. Commission on Civil Rights for a five-year term. She says that during her tenure, the group examined the school-to-prison pipeline and bias in policing, among other issues.
The group has also investigated the impact the affirmative action ban had on institutions of higher education. To investigate the impact, the commission submitted 26 public records requests for higher education institutions involving data on trends based on the race, color, sex, ethnicity, or national origin of the student body or applicant pool.
“Several colleges and universities responded to these requests but offered little insight into any changes or impact on the basis of race, color, sex, ethnicity, or national origin or changes in admissions demographics since the affirmative action ban went into effect,” the statement said.
There was some anecdotal evidence gathered, however. At Oklahoma State University, Jason F. Kirksey, the vice president for Institutional Diversity and the chief diversity officer, said that in his “anecdotal experience,” the ban may have impacted minority-focused scholarship and related programs, but he was not aware of any official analysis of its effects.
But an amicus brief filed in a suit related to affirmative action may highlight some data points, at least at one university in Oklahoma.
Then-Oklahoma Attorney General John O’Connor led a brief with other states in support of the Students for Fair Admissions in their lawsuit against the University of North Carolina.
“Nine states now prohibit racial distinctions in university admissions,” the brief said. “The University of Oklahoma, for example, remains just as diverse today (if not more so) than it was when Oklahoma banned affirmative action in 2012. States like Oklahoma and Nebraska have similar Hispanic populations as North Carolina, Massachusetts, and Maryland, and all five states’ flagship public universities—including UNC—have similar Hispanic enrollment despite the former two states prohibiting race-consciousness and the latter three not doing so.”
The brief also said that the University of Oklahoma does not have a “meaningfully lower” African American student population than universities in other states like Massachusetts, Minnesota, and Wisconsin.
Since the ban, the brief said, “there has been no long-term severe decline in minority admissions at the University of Oklahoma.”
It claimed that the flagship public universities of states that have banned consideration of race in university admissions are just as diverse as similar universities in states in which affirmative action is allowed.
Additionally, it said, in regards to African Americans, the states with affirmative action, like Massachusetts (7.9% African American population), Minnesota (8%) and Wisconsin (7.2%) do not “admit substantially more African American students” than Oklahoma (8.8%).
O’Connor lost in his reelection bid for Oklahoma Attorney General in 2022. But a spokesperson for his successor as AG, Gentner Drummond, said there are no plans to withdraw the brief.
While Oklahoma’s attorney general believed the Affirmative Action ban didn’t make a difference in the racial makeup of the state’s universities, another state with an Affirmative Action ban found the opposite to be true. Michigan’s Affirmative Action ban went into effect in 2006 and last summer, the University of Michigan filed an amicus brief claiming that despite 15 years of efforts to use race-neutral means in admissions, the college has been unable to maintain its previous levels of racial diversity.
“Painting narratives not entirely based on facts”
Andrea Worden, a graduate of the University of Oklahoma College of Law, who worked at the Cleveland County District Attorney’s Office in Oklahoma as well as interned with the Virginia-based Rutherford Institute, a civil rights and advocacy organization, said:
“There is limited data on the impact of such laws [affirmative action bans] on businesses and schools, as their effects can be difficult to quantify. However, studies have shown that affirmative action programs have helped to increase diversity in various sectors and industries, which may benefit businesses and organizations in the long term.”
She adds that it’s “important to consider the potential impact of such laws on marginalized communities and to continue to strive toward promoting diversity, equity, and inclusion in all sectors and industries. While affirmative action programs may not be the only solution to addressing systemic inequalities, they can be an important tool for promoting fairness and equal opportunity.”
Timothy Welbeck, director of Anti-Racism Research and an assistant professor of instruction at Temple University, says that affirmative action is a set of governmental policies that are designed to correct the centuries of racial discrimination, particularly that were impacting Black people in the United States as it relates to post-secondary institutions.
“For most of our nation’s history, in many jurisdictions across the country, it was literally against the law for Black people to learn to read and write,” he says. “And in the era of Reconstruction, historically Black colleges and universities [HBCU] began to sprout up across the nation to help remedy that particular practice. And then over time, there became government initiatives, most notably affirmative action as it sought to correct the history of racial segregation that was still taking place, and what we now refer to as predominantly white institutions.”
Welbeck explains that the Oklahoma law is one of many to try to dismantle affirmative action and “any good that it’s sought to bring to society, particularly the overall good of its initial goal of correcting centuries of racialized segregation.” Some of the cases before the courts are also “conveniently painting narratives that are not entirely based in facts,” he adds.
Welbeck noted the data on the University of Oklahoma from the attorney general’s brief but says that there are several caveats to that data. “One, we’re only looking at one institution, the University of Oklahoma,” he says. “And two, we’re also failing to consider that the racial demographics of the University of Oklahoma, though they have not changed in the last 11 years, already are not representative of the racial demographics of the state. So that indicates that there is a disconnect somewhere between the admissions practices, and the overall admittance of a student body that reflects the State of Oklahoma.”
Welbeck says he believes that the Supreme Court will overturn affirmative action, in part because “the current cases before the court are not presenting novel arguments, and in part because the composition of the court has changed.”
Leveling the playing field
Rose Washington is vice president and CEO of TEDC Creative Capital, an organization that aims to create, promote, and sustain small business growth in Tulsa. She is also the former chair of the Tulsa Regional Chamber of Commerce.
She says she is against the affirmative action ban, explaining that it has affected hiring at every level of government. She compared affirmative action to the game of golf. “When I was Chamber chair, I thought golf was a great game of diversity, equity, and inclusion.” says Washington. “It’s designed so that any amateur can come on the course and feel that they are welcomed. If you are not a great golfer, and if you are older, you get some preferences,” she adds, using handicaps as one example. Handicaps can enable people of different abilities to play against each other.
Washington says that because of those starting advantages she’s able to play against her husband, who has been playing for more than two decades.“My historical performance demonstrates that I need a level playing field to compete with him,” she says.
And that’s how affirmative action should work too—leveling the playing field so that those with disadvantages can start from a similar place. “So why was it so important for us to take away the equity in purchasing and procurement and doing business with the government, when in our personal lives, for some of us, we play the game every day?” says Washington.
Marcus, who was named to the Oklahoma advisory panel of the U.S. Commission on Civil Rights, says that she’s torn about affirmative action. “On one hand, I do recognize that there is some systematic discrimination,” Marcus says. “On the other hand, as a minority, you don’t want to be looked at just based on your color or your sex. You want to be judged based on your ability to get something good done, or your intelligence, or your character.”
Marcus has a daughter who will soon attend a historically Black college. She says that as more states potentially ban affirmative action, she thinks there will be a collective push for more Black students to start attending HBCUs.
“We do have to acknowledge there is racial discrimination and there are some people who are bigots by prejudice and are racist and will block admissions for students,” she says. “To what extent? I don’t know. But I do think that that will push more people to attend HBCUs again.”
Kristi Eaton is a freelance writer and communicator based in Tulsa, Oklahoma.
Recognize your brand’s excellence by applying to this year’s Brands That Matter Awards before the final deadline, June 7.
Sign up for Brands That Matter notifications here.
