from the Blue Book

[ Official Information on the Colorado Ballot Initiatives in 2008
Mailed to Voters by the State of Colorado ]

Amendment 46 Discrimination and Preferential Treatment by Governments

Amendment 46 proposes amending the Colorado Constitution to: prohibit Colorado governments from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting; make exceptions for federal programs, existing court orders or other legally binding agreements, and bona fide qualifications based on sex; and provide the same remedies that are available for violations of existing Colorado anti-discrimination law.

Summary and Analysis Discrimination generally means denying access to an individual based on certain characteristics such as race, age, or sex. The term preferential treatment is often used to refer to policies that assist historically disadvantaged groups in order to remedy past and current discrimination or to increase diversity. The U.S. Constitution protects individuals against unequal treatment by governments based on such characteristics as race and gender. Currently, governments may consider race and gender when choosing among qualified individuals or firms as long as they do so under a narrowly tailored plan to correct discrimination or promote diversity. The use of quotas and point systems, particularly in public college admissions practices, is rarely allowed.

Provisions of Amendment 46. Amendment 46 adds language to the Colorado Constitution that prohibits discrimination or preferential treatment in the areas of public employment, public education, and public contracting on the basis of race, sex, color, ethnicity, or national origin. The terms "discrimination" and "preferential treatment" are not defined in the measure. There are various government programs and agencies in Colorado that target assistance to a particular race, gender, or ethnicity that may be affected by Amendment 46. Examples of assistance include programs to help individuals obtain financial aid for college, develop professional skills, or start a business. Private organizations and programs are not affected by the measure.

Exceptions in Amendment 46. Amendment 46 does not affect the following:

Action required to receive federal funding . For example, public schools must ensure that girls receive the same access to school athletics programs as boys in order to receive federal funding.

Existing court orders and legally binding agreements that provide a remedy for discrimination. The City and County of Denver, for instance, is under a court order that governs hiring practices for police officers to achieve diversity in the workforce.

Bona fide qualifications based on sex . In the area of privacy, hiring a female, as opposed to a male, prison guard for the purpose of searching female inmates is an example of a bona fide qualification for public employment based on sex. Amendment 46 expands this exemption to the areas of public education and public contracting.

Remedies for discriminatory practices and preferential treatment. The measure requires that the remedies that exist for Colorado anti-discrimination law be used for violations of Amendment 46. Additionally, the remedies must be the same regardless of the injured party's race, sex, color, ethnicity, or national origin. Most remedies that exist today relate to employment law. Examples include paying lost wages, hiring or reinstating employees, and orders to stop discriminatory practices.

Arguments For

•  Amendment 46 treats everyone equally in public employment, education, and contracting. Discrimination occurs when people are given preference based on their race or gender rather than their qualifications. Preferential treatment leads to resentment and treats women and minorities as if they cannot succeed on their merits. Furthermore, racial classifications are divisive for society; preferencing one group over another based on race does not promote equal and fair treatment for everyone.

•  The idea of giving preference to an individual based on race or gender is outdated for today's society. Race, color, ethnicity, and national origin are becoming more difficult to define as more Americans identify themselves as multi-racial. Amendment 46 aligns state policies with the modern world.

Arguments Against

•  Discrimination still exists in today's society, which deprives some individuals of an opportunity to succeed. Women and minorities earn less, are under-represented in top-paying fields, and receive fewer public contracting dollars when compared to non-minority or male groups. Programs that consider race and gender provide greater access to employment, education, and business opportunities for historically disadvantaged groups. These programs have been successful in promoting diversity and correcting past discrimination, but equality has not yet been achieved.

•  The impact of this measure is uncertain and potentially far-reaching. Amendment 46 does not define "preferential treatment" or "discrimination," leaving these terms open to interpretation and lawsuits funded at taxpayers' expense. Entities that do not have sufficient financial resources for a legal challenge may simply discontinue offering programs that appear to target assistance to specific populations.

Estimate of Fiscal Impact The impact on state and local revenues or spending cannot be estimated because the number of programs affected is unknown. Government agencies, including public colleges and universities, may have costs and/or savings to conform current programs and policies with the measure. Costs that may result from potential legal challenges to the measure cannot be estimated.

Text of Amendment

Curtis Crawford's Comments on the Impact of Amendment 46 on Colorado Law

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