Key Points:

• Proposition 142 would add certain “diversity, equity and inclusion” designations to the state’s list of banned discrimination items
• Challengers argues the initiative is unconstitutional because it goes beyond a single subject
• The judge ruled that the entire proposition falls under race and ethnicity in public institutions

PHOENIX — A Maricopa County Superior Court judge said this week Arizona voters can decide the fate of Proposition 142, which aims to eliminate certain diversity requirements from public job postings, rejecting a legal challenge that sought to remove the proposed constitutional amendment from the November ballot.

In a ruling issued Tuesday, Judge Julie Ann Mata concluded that Proposition 142 does not violate the Arizona Constitution’s “Separate Amendment Rule,” which requires amendments submitted to voters to address a single subject.

The lawsuit, filed by the progressive advocacy group Will of the People, argued the measure improperly combines multiple unrelated policy changes into a single ballot proposition, forcing voters to accept or reject the package as a whole.

Mata disagreed, finding that the proposal’s provisions are sufficiently connected because they all concern limits on government action involving race and ethnicity in public institutions.

“The operative changes all concern limits on governmental action involving race or ethnicity in public institutions,” Mata wrote.

The judge said courts evaluate whether constitutional amendments are facially related, address a common constitutional purpose, have historically been treated as one subject, and produce similar legal effects. 

She concluded Proposition 142 satisfies those legal standards. 

The judge also dismissed claims the measure would run afoul of the First Amendment to the U.S. Constitution. Mata said that is a question that would have to be addressed only if and when the measure is approved.

Representatives of Will of the People did not immediately respond when asked if they plan to appeal the judge’s decision.

What Prop 142 would do

Proposition 142 would expand Arizona’s existing constitutional ban on discrimination and preferential treatment, which voters approved in 2010 through Proposition 107.

House Speaker Steve Montenegro, R-Goodyear, who sponsored the measure crafted by the conservative Goldwater Institute, has argued Proposition 142 closes loopholes in Proposition 107 that have allowed public institutions to continue race-based policies under the banner of “diversity, equity and inclusion (DEI).

The new proposal would prohibit public entities from requiring applicants, employees, students or contractors to support or endorse preferential treatment based on race or ethnicity as a condition of admission, graduation, employment, contracting or receiving scholarships.

It also would restrict public universities from using taxpayer funds for certain diversity, equity and inclusion (DEI) initiatives and prohibit disciplinary policies that treat students differently because of race or ethnicity.

Claims of ‘logrolling’

Attorneys for Will of the People note that one proposition 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.

This, they told the judge, 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. 

And she said what is in Prop 142 meets the legal requirements. “The operative changes all concern limits on governmental action involving race or ethnicity in public institutions,” the judge said.

Lawmakers divided along party lines

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 for the measure. “Countries that have employed the equal outcome effort have not done well.”

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,” said the Snowflake Republican. 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 she 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,” she said. “Diversity is beautiful, equity is necessary. And we need to be inclusive, especially in this environment we’re living in.”

Rep. Stephanie Stahl Hamilton said she believes what’s in 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,” said the Tucson Democrat. “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.”

Goldwater Institute vs. ASU

Goldwater’s support of the measure is based on its claims that ASU courses and the university’s Barrett Honors College at ASU have 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.”

The conservative group also claims the materials include “anti-capitalist, anti-Israeli, and sexually explicit LGBTQ material.”

ASU responded in a statement calling the Goldwater description “only a selective, cursory overview and a lazily insufficient representation of what it claims to have been reviewed.”

It added that 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.