Court clears way for new DEI restrictions to go on Arizona ballot

Maricopa County Superior Court Judge Julie Ann Mata acknowledged that Proposition 142 would make a number of changes in existing constitutional provisions. These range from how public funds can be used at public universities, to banning disciplinary policies that treat students differently based on race or ethnicity.

There's also wording in the ballot measure that says public entities — not just universities — could not compel applicants, employees or students to support preferential treatment as a condition of admission, graduation, employment, contracting or scholarships.

But Mata rejected arguments by a group known as Will of the People that the provisions are sufficiently different that they violate the separate amendment rule of the Arizona Constitution and that it is illegal to ask voters to adopt them as a single measure.

The judge also said claims that Prop. 142 would run afoul of First Amendment protections of free speech are legally irrelevant — at least at this point — to whether voters should be given a chance to decide the issues in the November election. Mata said that is a question that would have to be addressed only if and when the measure is approved.

There was no immediate response from challengers on the question of whether there will be an appeal.

Arizonans already approved Prop. 107 in 2010 by a 3-2 margin. Sponsored by state Rep. Steve Montenegro, it put provisions in the state Constitution to bar preferential treatment or discrimination based on race, sex, color, ethnicity or national origin in public education, employment or contracting — issues lumped into the category of "diversity, equity and inclusion.''

Montenegro, a Goodyear Republican, is now the Arizona House speaker. He says Prop. 142, written by the Goldwater Institute, would close "loopholes'' in the original measure that some have used "to advance practices and programs that end up classifying individual students based on their race or their skin color.''

In filing suit, attorneys for Will of the People said the ballot measure fails to meet the requirements that all proposed constitutional amendments deal with just a single subject.

They said one section bars differential treatment based on race, "which is already unlawful under both federal and Arizona law." But other sections "would unlawfully place a sweeping ban on speech that refers to race or ethnicity,'' which violates federal law, the challengers said. 

They told Mata this is a "particularly sinister instance of logrolling," a practice designed to get people who want one particular provision in a proposal to support the entire package to get it.

The judge, however, found none of that relevant to the sole question at this point: whether a measure with various provisions can be offered to voters on a take-it-or-leave-it basis.

"Courts consider objective factors, including whether the provisions are facially related, concern a single constitutional section, have historically been treated as one subject, and are qualitatively similar in their effect on procedural or substantive law,'' Mata wrote. Prop. 142 meets the legal requirements, she said.

"The operative changes all concern limits on governmental action involving race or ethnicity in public institutions,'' the judge said.

Mata also was not swayed by arguments that Prop. 142 was deliberately designed to repeat what already is in the state Constitution, a move challengers argued is designed to "provide cover'' for the new and more far-reaching proposals.

State lawmakers have been split along political lines about the merits of the plan.

"This country was founded on equal opportunity, not equal outcome,'' said Rep. Lisa Fink, R-Glendale, in voting to put the measure on the ballot. "Countries that have employed the equal outcome effort have not done well.''

Snowflake Republican Rep. Walt Black related a more personal experience, talking about his daughter starting next school year at Arizona State University.

"I don't want people thinking she got into ASU simply because, Number One, she's a woman, and Number Two, she happens to be half Black,'' he said. He said the key is being accepted based on competency, "not because of who I look like.''

But Democratic Rep. Betty Villegas of Tucson spoke of her experience in the business world where she became a bank manager but said she was denied opportunities for advancement because the company wanted to keep her in a branch where she could serve other Hispanic customers.

"The glass ceiling was closed for me because I was doing a good job serving the people in my neighborhood,'' Villegas said. "Diversity is beautiful, equity is necessary. And we need to be inclusive, especially in this environment we're living in.''

Tucson Democratic Rep. Stephanie Stahl Hamilton said she believes the proposal goes beyond prohibiting discrimination or preferential treatment.

"It rewrites Arizona's Constitution to control speech, training, and institutional instruction in public education and employment, effectively mandating silence around race and identity rather than neutrality,'' she said. "In practice, it would chill academic inquiry, discourage honest discussion of history and lived experience and make public institutions more fearful of litigation than focused on student success or workforce fairness.''

At least part of what's behind the Goldwater Institute's support of the measure is its claims about courses at ASU and that the university's Barrett Honors College at ASU has been "hijacked by activist faculty to force DEI on students.'' That includes a contention that more than 70% of course elections for the mandatory "The Human Event'' course pushed DEI issues, including readings on "violence and capitalism, power and powerlessness, Europeanness and Africanness, physical violence and environmental violence.''

There also were claims of "anti-capitalist, anti-Israeli, and sexually explicit LGBTQ material.''

ASU officials responded by calling the Goldwater report "only a selective, cursory overview and a lazily insufficient representation of what it claims to have been reviewed.''

The university, in its response, said the two-semester course on global history from the earliest surviving records of human civilization encourages students "to examine a range of perspectives and develop their own arguments'' and not to adopt a particular viewpoint.

ASU also said Goldwater requested and reviewed just 13 specific sections of the course out of 227 offered, far short of the organization's claim of having reviewed 70% of course selections.