36. Preferential treatment or discrimination prohibited; exceptions; definition
SECTION 36. A. THIS STATE SHALL NOT GRANT PREFERENTIAL TREATMENT TO OR DISCRIMINATE AGAINST 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.
B. THIS SECTION DOES NOT:
1. PROHIBIT BONA FIDE QUALIFICATIONS BASED ON SEX THAT ARE REASONABLY NECESSARY TO THE NORMAL OPERATION OF PUBLIC EMPLOYMENT, PUBLIC EDUCATION OR PUBLIC CONTRACTING.
2. PROHIBIT ACTION THAT MUST BE TAKEN TO ESTABLISH OR MAINTAIN ELIGIBILITY FOR ANY FEDERAL PROGRAM, IF INELIGIBILITY WOULD RESULT IN A LOSS OF FEDERAL MONIES TO THIS STATE.
3. INVALIDATE ANY COURT ORDER OR CONSENT DECREE THAT IS IN FORCE AS OF THE EFFECTIVE DATE OF THIS SECTION.
C. THE REMEDIES AVAILABLE FOR A VIOLATION OF THIS SECTION ARE THE SAME, REGARDLESS OF THE INJURED PARTY'S RACE, SEX, COLOR, ETHNICITY OR NATIONAL ORIGIN, AS ARE OTHERWISE AVAILABLE FOR A VIOLATION OF THE EXISTING ANTIDISCRIMINATION LAWS OF THIS STATE.
D. THIS SECTION APPLIES ONLY TO ACTIONS THAT ARE TAKEN AFTER THE EFFECTIVE DATE OF THIS SECTION.
E. THIS SECTION IS SELF-EXECUTING.
F. FOR THE PURPOSES OF THIS SECTION, "STATE" INCLUDES THIS STATE, A CITY, TOWN OR COUNTY, A PUBLIC UNIVERSITY, INCLUDING THE UNIVERSITY OF ARIZONA, ARIZONA STATE UNIVERSITY AND NORTHERN ARIZONA UNIVERSITY, A COMMUNITY COLLEGE DISTRICT, A SCHOOL DISTRICT, A SPECIAL DISTRICT OR ANY OTHER POLITICAL SUBDIVISION IN THIS STATE.
Opponents of this proposition tend to make two claims. One is that quotas do not exist in Arizona. True, but it isn't the whole truth. While there are no quotas per se, there are plenty of preference programs, as documented in a Goldwater Institute whitepaper
The other is that preference programs exist as a matter of justice or are necessary to prevent discrimination. That's outright nonsense: the way to not discriminate on the basis of ethnicity into account is to consciously stop discriminating on the basis of ethnicity, which is not the same thing as giving preferences.
As we were reminded by Richard Epstein and others in the wake of Rand Paul's bout with foot-in-mouth syndrome earlier this year, there is a reasonably compelling argument to be made for government affirmative action programs as a sort of remedy for negative discrimination in the immediate past, so as not to "lock in" for a generation or longer the results of such discrimination. If the government for a time deliberately did not hire Martians, it would make sense to give preference to Martians in its next few hires so as not to keep Martians more or less locked out until all the Earthlings retire, and to avoid the effects such a policy would have on the next generation of Martians (and Earthhlings!)
But Arizona's preference programs are not time-limited remedies to past discrimination and not narrowly tailored in intent or effect even if they avoid quotas. At best they are responses to discrimination of decades ago. Some of their supporters seem to think we are living decades ago. Take the League of Women Voters, which stated in the measure's publicity pamphlet that "The LWVAZ believes that all qualified candidates should get a fair chance to compete for jobs or obtain an education based on individual merit, not special connections. Proposition 107 would turn back the clock to a society of "good old boy" networks where women and people of color routinely face discrimination. "
Were preference programs repealed immediately after their institution, yes, this would be true. The same people would be in charge, making the hires they would make without it. But we've made decades of social progress since then and while bigots can still be found in trailer parks and retirement homes they are no longer in charge of the university or government. Indeed those university, county, municipal, and state bureaucrats who the League of Women Voters implicitly claims would not allow others to obtain an education or compete for jobs based on merit unless prohibited from making decisions based on what a reasonable person would think to be merit (a hint for LWVAZ members: "merit" is not race, gender, or ethnicity) should be outraged.
I repeat: The moral authority of preference programs expired decades ago. The bigots of old are retired or dead. Thanks in part to past preference programs, a new generation has not taken their place. Proponents of continued ethnic discrimination have a difficult question to answer, and you should ask them it whenever you get the chance: "How long should discrimination persist, and under what conditions would you support its end?" The answer "as long as there is inequality between ethnic groups" is inadequate. If imbalances still exist, it is likely that they are not the direct result of past discrimination. It is evident that further "positive" or "reactionary" discrimination to remedy such imbalances will be ineffective, in addition to being unjust.
That injustice, acknowledged in both the majority opinion and dissent in Grutter v Bollinger (the U.S. Supreme Court case upholding discriminatory programs if narrowly tailored and limited in duration), is now holding back race relations and may be the cause of much residual ethnic prejudice. We're at the point where many a person of European or South or East Asian ancestry, on seeing someone whose ancestors came from the "global south" be admitted to a selective program at a state university, receive a state contract, or be hired as a state employee, suspects that that admittee, that contractor, that employee may have gotten there through an unfair and discriminatory process. That is not a situation we'd like the suspected "affirmative action" admittees, contractors, or hires to be put in.
To quote native Arizonan and retired Supreme Court Justice O'Connor's majority opinion in Grutter v Bollinger:
[Accordingly,] race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.
A policy limited in time must be subject to either sunset or periodic review. The Arizona legislature has established no sunset or periodic review for its discriminatory programs. By initiative, we have forced a review. Let's sunset the policy ourselves this November 2nd. Vote for progress on race and ethnicity. Vote "yes" on Proposition 107.