Prop. 142 would add restrictions on race, DEI programs to Arizona Constitution

By Stacy Mantle
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Arizona voters will decide in November whether to expand the state Constitution's existing prohibition on race-based preferential treatment, adding new restrictions on diversity, equity and inclusion programs, training and spending in public schools, colleges and universities.

Proposition 142, referred to the ballot by the Legislature as HCR 2044, would amend the Arizona Constitution, which already prohibits the state from granting preferential treatment to or discriminating against individuals or groups based on race, sex, color, ethnicity or national origin in public employment, public education and public contracting.

The proposed amendment would go further.

It would prohibit public entities from compelling applicants, employees, students or contractors to endorse or support race-based preferential treatment or discrimination as a condition of admission, graduation, employment, promotion, certification, contracting or scholarship opportunities.

For public education, it would also restrict spending on offices or positions responsible for promoting preferential treatment or discrimination based on race or ethnicity and prohibit disciplinary policies that treat students or employees differently based on race or ethnicity.

“Education Forward Arizona recommends voting 'no' on Proposition 142," said Rich Nickel, president and CEO of Education Forward Arizona. "Arizona already prohibits discrimination and preferential treatment in public education. Adding another layer of restrictions isn’t the answer. Proposition 142 could instead limit how our schools, colleges and universities design programs and provide support to students."

What would change for schools

The proposition specifically addresses some practices associated with diversity, equity and inclusion programs.

Public institutions could not require or solicit statements supporting certain race-based diversity, equity and inclusion concepts, require people to discuss their race or ethnicity or experiences involving the race or ethnicity of others or require completion of courses or training promoting concepts prohibited by the amendment.

The measure also would restrict public education institutions from spending money on training, programming or activities designed with reference to race, ethnicity, intersectionality, gender identity or sexual orientation when those activities fall within the measure's restrictions.

Those spending provisions apply broadly to money controlled by an institution, including appropriations, taxes, fees, grants, tuition, endowments and donations.

The proposition specifically exempts academic course instruction, research and creative works by students and faculty from its restrictions on spending for public education positions and programs. Registered student organizations, guest speakers and performers and mental or physical health services provided by licensed professionals also are excluded from that provision.

The amendment also states =it would not prohibit teaching or discussing historical examples of racial discrimination, including slavery, Indian removal, the Holocaust and Japanese American internment.

Other exceptions address tribal membership programs, federally required data collection and outreach and activities necessary to comply with court orders or state and federal anti-discrimination laws.

Supporters say measure protects equal treatment

Supporters argue the amendment is needed because Arizona's existing constitutional language does not go far enough to prevent public institutions from using race-based policies or requiring participation in diversity, equity and inclusion programs.

Victor Riches, president and CEO of the Goldwater Institute, wrote in an argument included in the Secretary of State's voter publicity pamphlet that the measure would prevent taxpayer resources from being used to compel students or state employees to endorse race-based discrimination.

The measure would establish "permanent protections in Arizona's own state constitution," Riches wrote.

Scot Mussi, president of the Arizona Free Enterprise Club, argued that the proposition would prevent changes in federal policy from affecting Arizona's approach to race-based preferences.

"Equal treatment under the law is not a partisan position," Mussi wrote in the publicity pamphlet.

“I strongly agree,” said Tom Horne, Arizona superintendent of public instruction. “Discipline must be individual based, not based on race or ethnicity.”

Opponents raise academic freedom concerns

Opponents argue Arizona already prohibits discrimination and that the additional provisions could restrict lawful education programs and create uncertainty about what schools and universities are permitted to do.

"Arizona’s focus should be on removing barriers and giving every student the opportunity to succeed — not creating new obstacles for the educators and institutions working to help them get there," said Nickel. "We should be expanding pathways to education, training and high-demand careers and giving students the support they need to take advantage of them.”

The League of Women Voters of Arizona said in its official ballot argument that existing Arizona law already prohibits discrimination and preferential treatment based on race, sex, color, ethnicity and national origin.

The organization argues Prop. 142 goes further by restricting educational programs, training, outreach and discussions involving race, ethnicity and diversity.

The measure's language "could discourage institutions from offering lawful programs" involving areas such as student success, mentoring, cultural understanding and educational access, the League wrote.

The ACLU of Arizona raised a different concern, arguing the measure could violate First Amendment protections and interfere with academic freedom.

Darrell Hill, the organization's director of policy, wrote in the publicity pamphlet that the proposal would prohibit certain ideas and viewpoints from being discussed in colleges and government workplaces.

"Ideas are not illegal," Hill wrote.

The proposition itself, however, expressly exempts academic course instruction, research and creative works from portions of its restrictions and states that discussion of historical discrimination would remain permitted.

Provision addresses future legislation

Prop. 142 also contains language addressing practices that may not be specifically identified in the proposed constitutional amendment.

The measure lists several types of training, programming and activities subject to its restrictions, followed by "related practices or concepts as may be prescribed by the legislature." 

Matt Beienburg, Goldwater Institute director of education policy, said the provision is intended to preserve lawmakers' existing authority rather than grant the Legislature new powers.

"That provision simply ensures that the Legislature retains its ability to legislate protections against any future efforts to promote race-based discrimination that might pop up down the road using different framing," Beienburg said.

He said the language is intended to prevent Prop. 142 from being interpreted as barring lawmakers from responding to future practices they believe constitute racial discrimination.

"The Legislature's power is not expanded or restricted by the inclusion of this provision," Beienburg said. "Just as the Legislature would have the power to legislate additional restrictions against the use of taxpayer funding for various practices or programming today, they would retain that power in the future."

A constitutional change

Because Prop. 142 would amend the Arizona Constitution rather than state statute, its provisions could not simply be changed through ordinary legislation.

A "yes" vote would amend the Constitution to add the new restrictions.

A "no" vote would leave Arizona's existing constitutional prohibition against preferential treatment and discrimination in place.

Arizona voters will decide the measure in the Nov. 3 general election.

Editor’s note:   A grant from the Arizona Local News Foundation made this story possible. The foundation awarded 15 newsrooms to pay for solutions-focused education reporters for two years. Please submit comments at yourvalley.net/letters or email them to AzOpinions@iniusa.org. We are committed to publishing a wide variety of reader opinions, as long as they meet our Civility Guidelines.

Stacy Mantle
Education Solutions Reporter

smantle@iniusa.org

Meet Stacy
Stacy Mantle is joining the team at Independent Newsmedia, Inc. as an Education Solutions journalist, thanks to a grant from the Arizona Community Collaborative. She has a long history in education that ranges from teaching junior high and middle school to developing curriculum and standards-based assessments.

Community: A longtime advocate for animal welfare, Stacy is deeply involved in rescue efforts and volunteers with several nonprofit organizations.

Random Fact: Once upon a time, she shared her home with a pet coyote and two wolf hybrids. The experiences were wild enough to become the subject of her first book!

Education: She holds a BA in English with a minor in Political Science, a Post-baccalaureate in Secondary Education, and an MBA with a emphasis on Marketing.

Hobbies: In her spare time, Stacy writes fast-paced urban fantasy novels, crafts small-batch artisan soap, and is always up for hiking or off-roading through the Arizona wilderness with her husband of 23 years.