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THE IMPACT OF THE COLORADO
CIVIL RIGHTS AMENDMENT ON COLORADO LAW
In its principal clause, the Colorado Civil Rights Amendment declares: “The state shall not discriminate against, or grant preferential treatment to, 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.” Which provisions of present Colorado law might be reinforced, supplemented, modified or repealed by this clause?
[This webpage includes every reference in the Colorado Constitution to discrimination (a.k.a. difference, distinction, preference, affirmative action), based on race, sex, color, ethnicity or national origin. It also seeks to include all references in the Colorado Statutes to such discrimination, when it involves public employment, public education, or public contracting. The bold emphases in Section Titles and Headings are in the original text; the bold emphases of passages concerning discrimination, preference or affirmative action are mine. Warning: The legal provisions discussed below are reported as they are written in the Constitution and Statutes of Colorado, not as they may have been interpreted by the Courts. Curtis Crawford]
THE ENABLING ACT OF COLORADO (1875)
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AN ACT TO ENABLE THE PEOPLE OF COLORADO TO FORM A CONSTITUTION AND STATE GOVERNMENT, AND FOR THE ADMISSION OF THE SAID STATE INTO THE UNION ON AN EQUAL FOOTING WITH THE ORIGINAL STATES.
Be it enacted by the senate and house of representatives
of the United States of America in congress assembled:
§ 4. Constitutional convention – requirements of constitution. That the members of the convention thus elected shall meet at the capital of said territory, on a day to be fixed by said governor, chief justice, and United States attorney, not more than sixty days subsequent to the day of election, which time of meeting shall be contained in the aforesaid proclamation mentioned in the third section of this act, and after organization, shall declare, on behalf of the people of said territory, that they adopt the constitution of the United States; whereupon the said convention shall be and is hereby authorized to form a constitution and state government for said territory; provided, that the constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, except Indians not taxed, and not be repugnant to the constitution of the United States and the principles of the declaration of independence; and, provided further, that said convention shall provide by an ordinance irrevocable without the consent of the United States and the people of said state; first, that perfect toleration of religious sentiment shall be secured, and no inhabitant of said state shall ever be molested in person or property, on account of his or her mode of religious worship; secondly, that the people inhabiting said territory do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within said territory, and that the same shall be and remain at the sole and entire disposition of the United States; and that the lands belonging to citizens of the United States residing without said state shall never be taxed higher than the lands belonging to residents thereof, and that no taxes shall be imposed by the state on lands or property therein belonging to, or which may hereafter be purchased by the United States. |
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Adopted by the US Congress in 1875, Section 4 of Colorado's Enabling Act requires the Colorado Constitution to “make no distinction in civil or political rights on account of race or color.” The Colorado Civil Rights Amendment, proposed in 2008, would add to this Constitution a ban on state discrimination “in the operation of public employment, public education or public contracting.” Does this Amendment satisfy this “no distinction” requirement of the Enabling Act?
The action forbidden by both is the same— unequal treatment— which the Act calls making a distinction, and the Amendment calls discrimination or preferential treatment. The forbidden grounds, under the Act, are race and color, to which the Amendment adds sex, ethnicity and national origin.
The areas, for the Act, are civil and political rights recognized by US law at the time. Political rights would have included the right to participate in elections as voter or candidate. Civil rights would have included “the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.” [1866 US Civil Rights Act] The areas, for the Amendment, are public education, public employment, and public contracting, where the right to equal treatment, regardless of race, sex or ethnicity, has been recognized in US law as a civil right since 1965.
In sum, both Section 4 of the Act, and the Amendment, ban unequal treatment, based on race or color. To the bases forbidden by the Act, the Amendment adds sex, ethnicity and national origin. The area of the Act's ban is the rights then recognized as civil and political. The area of the Amendment's ban is some of the rights now recognized as civil. The Amendment fully satisfies the Act's requirement that the Colorado Constitution shall “make no distinction in civil or political rights on account of race or color.” On the other hand, any amendment that made a distinction in any person's civil or political rights, based on that person's race or color, would violate Section 4 of the Enabling Act. |
THE COLORADO CONSTITUTION
These Sections of the Constitution deal with discrimination or preference, based on race, color, nationality, creed or sex.
Article II. Rights
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Section 23, Trial by jury - grand jury.
The right of trial by jury shall remain inviolate in criminal cases; but a jury in civil cases in all courts, or in criminal cases in courts not of record, may consist of less than twelve persons, as may be prescribed by law. Hereafter a grand jury shall consist of twelve persons, any nine of whom concurring may find an indictment; provided, the general assembly may change, regulate or abolish the grand jury system; and provided, further, the right of any person to serve on any jury shall not be denied or abridged on account of sex , and the general assembly may provide by law for the exemption from jury service of persons or classes of persons.
Section 29. Equality of the sexes.
Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex. |
Like Sections 23 and 29, the Amendment bans unequal treatment based on sex, in a much wider area than that covered by Section 23, but much narrower than that covered by Section 29.
Article IX. Education
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Section 8. Religious test and race discrimination forbidden - sectarian tenets.
No religious test or qualification shall ever be required of any person as a condition of admission into any public educational institution of the state, either as a teacher or student; and no teacher or student of any such institution shall ever be required to attend or participate in any religious service whatsoever. No sectarian tenets or doctrines shall ever be taught in the public school, nor shall any distinction or classification of pupils be made on account of race or color, nor shall any pupil be assigned or transported to any public educational institution for the purpose of achieving racial balance . |
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To forbid “any distinction or classification of pupils … on account of race” in public schools is the same thing as to ban any discrimination, for or against pupils, based on race. One function of the law is to help people understand clearly what it forbids. This is done here by using synonyms, “any distinction or classification,” to describe discriminatory conduct. The discriminatory conduct, forbidden here in Section 8 concerning pupils, is forbidden by the Amendment concerning every student and teacher in state education.
Article XII. Officers
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Section 13. Personnel system of state - merit system.
(1) Appointments and promotions to offices and employments in the personnel system of the state shall be made according to merit and fitness, to be ascertained by competitive tests of competence without regard to race , creed, or color, or political affiliation.
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The Amendment agrees with Section 13, by banning discrimination or preferential treatment, based on race or color, in public employment. As forbidden bases, it adds sex, ethnicity and national origin, but omits creed or political affiliation.
COLORADO STATUTES
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8-5-102. Wage discrimination prohibited
No employer shall make any discrimination in the amount or rate of wages or salary paid or to be paid his employees in any employment in this state solely on account of the sex thereof. |
“Discrimination” here means any difference in the wage, based on the sex of the employee. Like the Amendment, this Section covers public employees, since it also applies to the government sector.
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8-17-101. Colorado labor shall be employed on public works.
Whenever any public works financed in whole or in part by funds of the state, counties, school districts, or municipalities of the state of Colorado are undertaken in this state, Colorado labor shall be employed to perform the work to the extent of not less than eighty percent of each type or class of labor in the several classifications of skilled and common labor employed on such project or public works. "Colorado labor" as used in this article means any person who is a resident of the state of Colorado, at the time of employment, without discrimination as to race, color, creed, sex, age, or religion except when sex or age is a bona fide occupational qualification. |
As compared with the Amendment, Section 8-17-101 forbids the same action, discrimination. It adds creed, age and religion as forbidden bases of discrimination. Its area is a part, rather than all, of public employment. Note that one basis of discrimination, that a person be a resident of Colorado, is explicitly commanded by this Section, and not forbidden by the Colorado Constitution: state of residence.
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22-32-110. Board of education - specific powers.
(1) In addition to any other power granted to a board of education of a school district by law, each board of education of a school district shall have the following specific powers, to be exercised in its judgment: |
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(k) To adopt written policies, rules, and regulations, not inconsistent with law, which may relate to the efficiency, in-service training, professional growth, safety, official conduct, and welfare of the employees, or any classification thereof, of the district. The practices of employment, promotion, and dismissal shall be unaffected by the employee's religious beliefs, marital status, racial or ethnic background, or participation in community affairs.
(cc) To provide, in the discretion of the local board, out of federal grants made available specifically for this purpose, special educational services and arrangements, such as dual enrollment, educational radio and television, and mobile educational services, for the benefit of educationally deprived children in the district who attend nonpublic schools, without the requirement of full-time public school attendance and without discrimination on the ground of race, color, religion, sex, or national origin;
(dd) To provide, in the discretion of the local board, out of federal grants made available specifically for this purpose, library resources which, for the purposes of this title, means books, periodicals, documents, magnetic tapes, films, phonograph records, and other related library materials and printed and published instructional materials for the use and benefit of all children in the district and the use of teachers to benefit all children in the district, both in the public and nonpublic schools, without charge and without discrimination on the ground of race, color, religion, sex, or national origin; |
As compared with the Amendment, these subsections of Section 22-32-110 forbid the same action, discrimination. They add religion and marital status as forbidden grounds. This Section reaches only a part of public education and public employment, while the Amendment applies to the whole of those areas.
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24-33-109. Educational programs - youth educational programs
(2) (a) The department shall develop and conduct an educational program for the youth in this state. The goals of the youth educational program are to foster an interest in and a sense of stewardship toward the natural resources of the state , to provide summer jobs for students interested in pursuing careers in natural resources, and to provide career and educational development opportunities for students participating in these programs.
(b) As part of the educational programs of the department mandated in paragraph (a) of this subsection (2), a youth in natural resources summer work program shall be established. To the greatest extent possible, such work program shall incorporate opportunities for seasonal work with the department including, but not limited to, parks maintenance and wildlife field work. Any such seasonal work opportunities shall be geared toward disadvantaged youth with a particular emphasis on including youth who are disadvantaged as a result of economic circumstances, race, national origin, ethnicity, or gender. |
This Section authorizes unequal treatment, i.e., discrimination, based on “economic circumstances, race, national origin, ethnicity or gender,” in special youth educational and work programs. As to unequal treatment based on gender, this Section contradicts Article II, Section 29, of Colorado's present Constitution, which requires that “Equality of rights under the law shall not be denied or abridged by the state of Colorado or any of its political subdivisions on account of sex.”
Apparently, no other Section of the present Constitution bans unequal treatment on the bases, and in the areas, designated by this Statute. (If the designated area were the public school system, instead of special educational programs, this Section would clash with the Constitution's Article IX, Section 8 above.) In contrast, the Amendment would ban unequal treatment, i.e. discrimination, based on race, national origin, ethnicity, or gender, in any state-sponsored education or work programs, whether special or standard.
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24-34-303. Civil rights commission - membership.
There is hereby created, within the division, the Colorado civil rights commission. The commission shall consist of seven members, who shall be appointed by the governor, with the consent of the senate, for terms of four years; except that, of the first members appointed, two shall be appointed for terms of two years and two shall be appointed for terms of three years. In making the first two appointments to the commission on or after July 1, 1981, whether such appointments are for a full term or to fill a vacancy, the governor shall appoint one member to represent the business community and one member to represent state or local government entities. In making the next two appointments to the commission, whether such appointments are for a full term or to fill a vacancy, the governor shall appoint one member to represent small business and one member to represent state or local government entities. The governor shall make all subsequent appointments in such a manner that there are at all times two members of the commission representing the business community, at least one of which shall be a representative of small business, two members of the commission representing state or local government entities, and three members of the commission from the community at large. The membership of the commission shall at all times be comprised of at least four members who are members of groups of people who have been or who might be discriminated against because of disability, race, creed, color, sex, national origin, or ancestry as defined in section 24-34-402 or because of marital status, religion, or age. Appointments shall be made to provide geographical area representation insofar as may be practicable, and no more than four members shall belong to the same political party. Vacancies shall be filled by the governor by appointment, with the consent of the senate, and the term of a commissioner so appointed shall be for the unexpired part of the term for which the commissioner is appointed. Any commissioner may be removed from office by the governor for misconduct, incompetence, or neglect of duty. Commissioners shall receive a per diem allowance and shall be reimbursed for actual and necessary expenses incurred by them while on official commission business, as provided in section 24-34-102 (13). The commission may adopt, amend, or rescind rules for governing its meetings, and four commissioners shall constitute a quorum. |
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This Section commands preferential treatment, based on membership in “groups of people who have been or who might be discriminated against because of disability, race, creed, color, sex, national origin, or ancestry . . . or because of marital status, religion or age.” After many decades of affirmative action, which discriminates against members of groups that have suffered less discrimination, in order to favor members of groups that have suffered more discrimination, are there any groups left that have not been discriminated against? This Section conflicts with the ban on sexual discrimination in Section 29 of the present Constitution. It would also conflict with the Amendment's ban on preferential treatment for “any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment.”
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24-34-305. Powers and duties of commission
(1) The commission has the following powers and duties |
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(a) To adopt, publish, amend, and rescind rules and regulations, in accordance with the provisions of section 24-4-103 , which are consistent with and for the implementation of parts 3 to 7 of this article. All such rules adopted or amended on or after July 1, 1979, shall be subject to sections 24-4-103 (8) (c) and (8) (d) and 24-34-104 (9) (b) (II).
(b) To receive, investigate, and pass upon charges alleging unfair or discriminatory practices in violation of parts 4 to 7 of this article;
(c) To investigate and study the existence, character, causes, and extent of unfair or discriminatory practices as defined in parts 4 to 7 of this article and to formulate plans for the elimination thereof by educational or other means; |
Parts 4-7 concern, respectively, unfair or discriminatory practices in employment, housing, privately owned public accommodations, and advertising.
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24-34-402. Discriminatory or unfair employment practices.
1) It shall be a discriminatory or unfair employment practice : |
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(a) For an employer to refuse to hire, to discharge, to promote or demote, to harass during the course of employment, or to discriminate in matters of compensation against any person otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry; but, with regard to a disability, it is not a discriminatory or an unfair employment practice for an employer to act as provided in this paragraph (a) if there is no reasonable accommodation that the employer can make with regard to the disability, the disability actually disqualifies the person from the job, and the disability has a significant impact on the job. For purposes of this paragraph (a), "harass" means to create a hostile work environment based upon an individual's race, national origin, sex, sexual orientation, disability, age, or religion. Notwithstanding the provisions of this paragraph (a), harassment is not an illegal act unless a complaint is filed with the appropriate authority at the complainant's workplace and such authority fails to initiate a reasonable investigation of a complaint and take prompt remedial action if appropriate.
(b) For an employment agency to refuse to list and properly classify for employment or to refer an individual for employment in a known available job for which such individual is otherwise qualified because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry or for an employment agency to comply with a request from an employer for referral of applicants for employment if the request indicates either directly or indirectly that the employer discriminates in employment on account of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry ; but, with regard to a disability, it is not a discriminatory or an unfair employment practice for an employment agency to refuse to list and properly classify for employment or to refuse to refer an individual for employment in a known available job for which such individual is otherwise qualified if there is no reasonable accommodation that the employer can make with regard to the disability, the disability actually disqualifies the applicant from the job, and the disability has a significant impact on the job.
(c) For a labor organization to exclude any individual otherwise qualified from full membership rights in such labor organization, or to expel any such individual from membership in such labor organization, or to otherwise discriminate against any of its members in the full enjoyment of work opportunity because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry;
(d) For any employer, employment agency, or labor organization to print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment or membership, or to make any inquiry in connection with prospective employment or membership that expresses, either directly or indirectly, any limitation, specification, or discrimination as to disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry or intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification or required by and given to an agency of government for security reasons;
(f) For any employer, labor organization, joint apprenticeship committee, or vocational school providing, coordinating, or controlling apprenticeship programs or providing, coordinating, or controlling on-the-job training programs or other instruction, training, or retraining programs:
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(I) To deny to or withhold from any qualified person because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry the right to be admitted to or participate in an apprenticeship training program, an on-the-job training program, or any other occupational instruction, training, or retraining program; but, with regard to a disability, it is not a discriminatory or an unfair employment practice to deny or withhold the right to be admitted to or participate in any such program if there is no reasonable accommodation that can be made with regard to the disability, the disability actually disqualifies the applicant from the program, and the disability has a significant impact on participation in the program;
(II) To discriminate against any qualified person in pursuit of such programs or to discriminate against such a person in the terms, conditions, or privileges of such programs because of disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry;
III) To print or circulate or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for such programs, or to make any inquiry in connection with such programs that expresses, directly or indirectly, any limitation, specification, or discrimination as to disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry or any intent to make any such limitation, specification, or discrimination, unless based on a bona fide occupational qualification ; |
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(2) Notwithstanding any provisions of this section to the contrary, it is not a discriminatory or an unfair employment practice for the division of employment and training of the department of labor and employment to ascertain and record the disability, sex, age, race, creed, color, or national origin of any individual for the purpose of making such reports as may be required by law to agencies of the federal or state government only. Said records may be made and kept in the manner required by the federal or state law, but no such information shall be divulged by said division or department to prospective employers as a basis for employment, except as provided in this subsection (2) |
The unfair employment practices by employers, employment agencies, and labor unions listed here are all examples of discrimination. The forbidden discrimination is based on disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry . Discrimination is usually described here as a negative action: refusing to hire, discharging, denying, withholding, discriminating against.
Does this description mean that discrimination is unlawful only when directed against someone? Would it be lawful under this Section for an employer to discriminate in favor of a worker because of his race, but illegal to discriminate against him because of his race? “Discrimination against” sounds hostile, while “discrimination in favor” sounds friendly, affirmative. Nevertheless, they are two sides to the same coin of unequal treatment. Suppose an employer rejects a black applicant based on race, choosing instead a white applicant based on race. With respect to both applicants, this employer is discriminating, because of race. He discriminates against the black applicant, and in favor of the white applicant. Both the discrimination against, and the discrimination in favor, if based on race, are unfair employment practices under this Section. The same would hold if the discrimination favored the black applicant, and disfavored the white applicant.
Why, then, does this Section regularly condemn “discrimination against,” while saying little or nothing about “discrimination in favor”? Perhaps, because of the way in which these laws are enforced. Anti-discrimination laws are usually enforced because of complaints about, or lawsuits against, discrimination. People who are discriminated for don't usually complain or sue. It's the victims of discrimination against, who feel the hurt, and seek redress.
In the Amendment, discrimination against and discrimination for (i.e., preferential treatment) are given equal emphasis. That is especially appropriate for a constitutional provision. While statutes regulate the conduct of individuals and organizations within a society, constitutions must also regulate the statutes. Thus, it is especially helpful in a Constitution to describe more completely the evil it seeks to prevent.
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24-34-405. Relief authorized.
In addition to the relief authorized by section 24-34-306 (9), the commission may order a respondent who has been found to have engaged in an unfair or discriminatory employment practice to take affirmative action regarding: Back pay; hiring, reinstatement, or upgrading of employees, with or without back pay; the referring of applicants for employment by any respondent employment agency; the restoration to membership by any respondent labor organization; the admission to or continuation in enrollment in an apprenticeship program, on-the-job training program, or a vocational school; the posting of notices; and the making of reports as to the manner of compliance. The commission, in its discretion, may order such remedies singly or in any combination. |
Most opponents of the Colorado Amendment, and of like measures in other states, claim that they would end affirmative action. This claim is true, whenever affirmative action is defined as many people do: as “preferential treatment for minorities and women in education, employment and government contracting.” However, the affirmative action required by this Section of Colorado law is another
thing entirely. It requires specific kinds of redress by employers, labor unions or employments agencies, which are guilty of discriminatory employment practices. These practices are illegal under Colorado law, whether they harm women or men, minorities or whites. Their redress by compensatory action is required, whether that action favors women or men, minorities or whites. This kind of affirmative action is perfectly consistent with nondiscrimination.
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24-49.5-101. Legislative declaration.
The general assembly hereby declares that it is in the best interest of the people of Colorado to promote the interests of minority business by assisting minority business enterprises in establishing information networks with both government and the private sector, assuring a greater flow of information about minority business enterprises and the opportunities available to minority businesses, and providing economic research and information with the ultimate goal of providing the best opportunities for minority business enterprises to enter the mainstream of Colorado's economy. |
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This Section authorizes the State to provide, for minority business enterprises, special services that are not provided for non-minority business enterprises. This discriminates for the former against the latter. If “minority business enterprises” does not include enterprises owned or managed by women, the discrimination authorized in this Section may not conflict with the present Constitution. It would conflict with the Amendment, if preferential treatment in State contracting or employment were involved.
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24-49.5-102. Creation of the minority business office - director.
There is hereby created the minority business office within the office of the governor , referred to in this article as the "office". The office shall be in the charge of a director who shall be appointed by the governor. The director and employees of the office shall not be subject to section 13 of article XII of the state constitution. |
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This Section airily sets aside an inconvenient clause in the Constitution, concerning the appointment of state personnel. See Section 13 of Article XII, near the beginning of this article. If the Constitution forbids what you want to do, turn it off! Being more recent than XII – 13, one hopes the Amendment, if passed, would be harder to dismiss.
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24-49.5-103. Authority and responsibility of the director
(1) In furtherance of the policy expressed in section 24-49.5-101 , the director shall: |
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(a) Promote the business development of new and existing minority business enterprises in coordination with state economic development activities;
(b) Establish networks among governmental entities, the private sector, and minority business in an effort to promote joint business activities;
(c) Promote minority business participation in federal, state, and local procurement, purchasing, financing, and contracting, in accordance with existing federal and state statutes; |
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(3) The director shall develop and implement performance and accountability standards. Such standards shall include, but shall not be limited to, the following: |
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(a) The fees established pursuant to paragraph (f) of subsection (1) of this section;
(b) The number of businesses by race and ethnicity including the protected groups known as African Americans, Hispanic Americans, Asian Americans, native Americans, and any other minority ethnic groups assisted by the office and the actual moneys associated therewith; |
This Section makes it clear that the businesses helped by the State through this legislation are chosen according to the race or ethnicity of those who own or manage them. The State doesn't call this discrimination, but that's of course what it is.
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24-49.5-105. Historically underutilized businesses - legislative declaration - definitions.
(1) The general assembly hereby finds and declares that |
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(a) Businesses owned by minorities and women are among the fastest growing in the state but are historically underutilized in government contracts.
(b) Securing government procurement contracts is a major determinant in the success of businesses owned by minorities and women.
(c) The owners of historically underutilized businesses can benefit from surety technical assistance programs that help those businesses qualify for the performance bonds that are required for businesses to bid on public projects.
(d) It is the intent of the general assembly to assist historically underutilized businesses by creating a surety technical assistance program .
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(2) In addition to the responsibilities of the director of the minority business office specified in section 24-49.5-103 , the director shall establish a program to provide surety technical assistance services for the benefit of historically underutilized businesses and may contract with insurance companies, surety companies, agents, or brokers for the purpose of implementing the program.
(3) The director of the minority business office shall compile a centralized directory of all historically underutilized businesses that have obtained the contract performance and payment bonds required in order to be awarded a government procurement contract. The director shall ensure that the directory is accessible to governmental entities that enter into procurement contracts.
(4) As used in this section, unless the context otherwise requires, "historically underutilized business" means an entity that qualifies as a small business pursuant to 13 CFR 121 and that is a profit-making corporation, sole proprietorship, partnership, or joint venture in which more than fifty percent of the shares of stock or other equitable securities are owned by one or more persons who are members of the following groups: |
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(a) African American;
(b) Hispanic American, including but not limited to all persons of Mexican, Puerto Rican, Cuban, Central or South American, or other Spanish or Portuguese culture or origin, regardless of race;
(c) Asian American, including but not limited to persons whose origins are from Japan, China, Taiwan, Korea, Vietnam, Laos, Cambodia, the Philippines, Samoa, the United States territories of the Pacific, or the Northern Mariana Islands; and subcontinent Asian American, including but not limited to persons whose origins are from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, or Nepal;
(d) Native American, including but not limited to persons who are American Indians, Eskimos, Aleuts, or Hawaiians of Polynesian descent; or
(e) Women, including women of any group specified in paragraphs (a) to (d) of this subsection (4). |
This Section declares that, to qualify for State assistance, a business must be a small business, which is “historically underutilized.” To qualify for this label, it must be owned primarily by African Americans, Hispanic Americans, Asian Americans, Native Americans, or Women. These discriminations based on race or ethnicity do not conflict with the Colorado Constitution, but the discrimination based on sex does. [See Article II, Section 29 of the Constitution, above.] The Amendment would conflict with all of these discriminations, but only insofar as they involved State education, State employment, and State contracting.
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24-50-112.5. Selection system. |
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(1) (a) The state personnel director shall establish procedures and directives necessary to implement a merit-based statewide selection system to be used uniformly by all principal departments. Such procedures and directives shall include, but are not limited to, procedures for acceptance of applications, job qualification standards for candidates, extension of eligible lists, and examination development and administration standards. |
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(b) Appointments and promotions to positions shall be based on job-related knowledge, skills, abilities, competencies, behaviors, and quality of performance as demonstrated by fair and open competitive examinations. Selections shall be made without regard to race, color, creed, religion, national origin, ancestry, age, or political affiliation and without regard to sex or disability except as otherwise provided by law. |
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Compare this Section to Article XII, Section 13 of the Colorado Constitution. It requires appointments and promotions in the state's personnel system to be based on competence “without regard to race, creed, or color, or political affiliation.” This Section requires appointments and promotions in the State's personnel system to be based on competence without regard to race, creed, or color, or political affiliation “except as otherwise provided by law.” In other words, the State's laws conform to the State's Constitution, except when the State's laws provide otherwise? If the Amendment is adopted, perhaps that will strengthen the willingness of Colorado to follow the non-discrimination principles in its Constitution and many of its Statutes.
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24-50-141. Rules and regulations - limitations - affirmative action corrective remedies - implementation.
(1) It is the intent of the general assembly to encourage the implementation of equal employment opportunities and affirmative action corrective remedies within the state personnel system which preserve the merit principles contained in section 13 of article XII of the state constitution and this article and which disavow and prohibit the imposition of a mandatory quota system. Until January 1, 1980, and while underutilization of and invidious discrimination against members of ethnic and racial minorities and women exist and continue to exist within the state personnel system, the board is authorized to adopt and implement rules and regulations which carry out the intent of this section. Such rules and regulations shall be implemented only upon written findings by the state personnel director in each instance that the following conditions exist with reference to specific appointments and promotions within the state personnel system: |
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(a) The appointing authority has voluntarily requested referrals for affirmative action purposes;
(b) There is discriminatory underutilization of members of the ethnic or racial minority group or women for which the referral has been requested, within the agency, in the class for which an appropriate eligible list or combination of eligible lists has been compiled; and
(c) The test or selection devices for the compilation of such eligible list or lists have not been validated according to applicable employee selection guidelines. |
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(2) Rules and regulations of the state personnel system adopted and implemented in accordance with this section, except rules and regulations relating to grievance and appeal procedures within the state personnel system and based on allegations of discrimination, are repealed, effective January 1, 1980, and the authority of the board to adopt and implement any affirmative action corrective remedy or rule, which allows or provides for, or incorporates by reference, requisitions or referrals which are in addition to the names of the three persons ranking highest on the appropriate eligible list or combination of such lists, is terminated on such date.
(3) Repealed. |
This is a puzzling Section. Part (1) conflicts with the Constitution's requirement in Article XII, Section 13, that personnel appointments be based on competence without regard to race or color. Part (3) has been repealed. Part (2) indicates that most of the rules and regulations that implement this Section were repealed since January 1, 1980. Colorado's site for searching Colorado law, which often includes judicial annotations, provides no clarification concerning this Section. If the Amendment passes, and Colorado's Constitution has any authority in Colorado, what remains of Section 24-50-141 should be repealed as unconstitutional.
Text of the Amendment
Blue Book - Explanation of Amendment Mailed to Colorado Voters
Return to Table of Contents for Nebraska & Colorado Civil Rights Initiatives
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