REFERENCE TITLE: preferential treatment; discrimination; prohibition

State of Arizona

House of Representatives

Fifty-sixth Legislature

Second Regular Session

2024

HCR 2056

Introduced by

Representatives Montenegro: Biasiucci, Bliss, Carbone, Carter, Chaplik, Cook, Diaz, Dunn, Gillette, Grantham, Griffin, Heap, Hendrix, Jones, Kolodin, Livingston, Marshall, Martinez, McGarr, Nguyen, Parker B, Payne, Peña, Pingerelli, Smith, Toma, Willoughby, Wilmeth;  Senators Bolick, Gowan, Shope

A Concurrent Resolution

proposing an amendment to the Constitution of Arizona; amending article II, section 36, Constitution of Arizona; relating to discrimination.

(TEXT OF BILL BEGINS ON NEXT PAGE)

Be it resolved by the House of Representatives of the State of Arizona, the Senate concurring:

1. Article II, section 36, Constitution of Arizona, is proposed to be amended as follows if approved by the voters and on proclamation of the Governor:

36. Preferential treatment or discrimination prohibited; exceptions; applicability; definition

Section 36. A. This state shall not:

1. 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.

2. Compel an applicant, employee or contractor to endorse giving preferential treatment to or discriminating against any individual on the basis of race or ethnicity as a condition of any hiring, promoting or contracting decision.

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, subject to the following:

(a) THis state may not disadvantage or treat differently on the basis of race or ethnicity any individual from among any pool of applicants, students, employees or contract recipients when making a hiring, contracting, promoting or admitting decision. Any action that would otherwise be prohibited, including implementing an affirmative action policy, and that is taken in accordance with federal requirements pursuant to this paragraph shall be limited to outreach, advertising or communication efforts that do not modify any formal application criterion or evaluation.

(b) This state may not implement any disciplinary policy or disciplinary action that treats an individual student or group of students differently on the basis of race or ethnicity.

(c) Access to services, facilities or grounds of this state may not be conditioned on race or ethnicity of any individual or group of individuals.

(d) To uphold the constitution of the United States as the supreme law of the land, this state deems any requirement that this state practice racial discrimination other than as prescribed in subdivision (a) of this paragraph to be inconsistent with the fourteenth amendment of the constitution of the United States and subject to the prohibitions proscribed in section 3, subsection C of this article.

3. Invalidate any court order or consent decree that is in force as of the effective date of this section december 14, 2010.

4. Prohibit qualifications based on tribal membership as part of a program established to serve members of Indian tribes.

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. For the purposes of subsection A, paragraph 2 of this section, compelling an applicant, employee or contractor to endorse giving preferential treatment or discriminating on the basis of race or ethnicity includes:

1. Requiring or soliciting a written or oral statement in support of any of the following:

(a) Any theory or practice that advocates for the differential treatment of any individual or group of individuals based on race or ethnicity.

(b) Any formulation of diversity, equity, inclusion or intersectionality beyond upholding the equal protection of the laws guaranteed by the fourteenth amendment of the Constitution of the United States.

2. Requiring or soliciting an individual to confess race-based privilege or discuss the individual's race or ethnicity or views on or experience with the race or ethnicity of others.

3. Giving preferable consideration to an individual for opinions expressed or actions taken in support of another individual or a group of individuals in which the consideration is based on the race or ethnicity of those individuals.

E. This section does not prevent this state from requiring applicants, employees or contractors to do any of the following:

1. Disclose or discuss the content of their scholarly research or creative works.

2. Certify compliance with state and federal antidiscrimination law.

3. Discuss services, pedagogical approaches or experiences with students or individuals with mental or physical disabilities.

F. This section does not prevent any applicant or employee from providing any information described in this section on the applicant's or employee's own initiative.

D. G. This section applies only to actions that are taken after the effective date of this section december 14, 2010.

E. H. This section is self-executing.

F. I. 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.

2. The Secretary of State shall submit this proposition to the voters at the next general election as provided by article XXI, Constitution of Arizona.