The League of Women Voters of Wisconsin (LWVW) advocated against one of three constitutional amendments set to be on the November ballot during a webinar Tuesday, where speakers discussed the potential impact on healthcare and education.
The amendment would prohibit government entities from “discriminating against or granting preferential treatment” based on race, sex, ethnicity or national origin. The amendment defines a government entity as the state and its political subdivisions including the Universities of Wisconsin System.
“The anti-equity Constitution rule will seriously impact 60 years of progress in Wisconsin on healthcare, education, public administration, employment, and business contracts from women and minority businesses.” Joan Schwartz, member of the Legislative Advocacy Committee of the LWVW, said.
Critics of the amendment said the language on the ballot is too vague, and may lead to a false impression of the amendment’s impacts.
“If you're being asked, ‘Do you want to prohibit government discrimination?’ I'm sure many folks would respond, ‘of course,’” Rachel Snyder of Law Forward said. “I think it's important to consider the fact that we already have several sources of law that prohibit government discrimination, both at the state level and the federal level.”
“Preferential treatment” is not specifically described in either the ballot language or the full amendment, which Snyder believes will leave this definition to be decided through litigation.
“That is a new concept for Wisconsin law…These terms without definition invite litigation.” Snyder said.
Health policy and equity
Health equity programs depend on government employment and contracting to track racial disparities and create programs to help lessen them, said health policy strategist Kadijha Marquardt-Davis. If the amendment were to pass, these programs would face challenges and potential red-tape.
Public administration is also undefined in the amendment, which Marquardt Davis says will leave the future of equitable public health programs, hospitals and other government health services unclear.
“That impact will ultimately depend on how the amendment is interpreted and applied,” Marquardt-Davis said.
Wisconsin sees significant racial health disparity, especially toward Black and Indigenous communities. Earlier this year, reports revealed a large discrepancy in immunization rates between Black and white children. Only 54% of Black children received basic vaccinations compared to 78% of white children.
“These disparities are not the result of individual choices.” Marquardt-Davis said. “When systems have produced unequal starting points or persistent barriers, targeted interventions can be necessary to address documented disparities.”
The proposed amendment could prevent policy makers from addressing inequalities, according to Marquardt-Davis.
Education and affirmative action
The U.S. Supreme Court ruled that affirmative action measures violated the Equal Protection Clause of the 14th Amendment in 2023. Earlier this year, the Wisconsin Supreme Court struck down a race-based scholarship program in a unanimous decision.
Both of these cases set a legal precedent against the preferential treatment the proposed amendment aims to end. The difference between the precedents and the amendment is the scale of the decision.
“Laws can be changed, but with a state constitutional amendment, it creates this legal standard that arguably binds local governments, school districts and future legislatures,” said Susan Eckes, University of Wisconsin-Madison professor of education law, policy and practice.
Even though the amendment does not specifically target curriculum, Eckes said institutions may “self-censor” before specific boundaries are applied.
“I see how risk averse — to avoid costly litigation — a school board or superintendent may be, and may self censor curriculum, and that could happen.” Eckes said.
Eckes explained the proposed amendment targets education at an administrative level, not a curricular level, but risk-averse schools may see these changes and conflate them with in-classroom expectations.
“This can have a chilling effect that extends beyond the actual text of the law.” Eckes said.
