HB 2868
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ARIZONA HOUSE OF REPRESENTATIVES
Fifty-seventh Legislature
First Regular Session
House: GOV DP 4-3-0-0
HB 2868: preferential treatment; discrimination; policies
Sponsor: Representative Way, LD 15
House Engrossed
Overview
Expands prohibitions on preferential treatment and discrimination on the basis of race or
ethnicity in public education, spending and hiring practices.
History
The Arizona Constitution prohibits the state from granting preferential treatment or
discriminating on the basis of sex, race, color, ethnicity or national origin in the operation of
public employment, education or contracting. This prohibition does not include qualifications
based on sex that are reasonable and necessary, actions to establish or maintain federal
programs that would otherwise result in a loss of federal money or invalidate court orders
and consent decrees (Article II § 36, Const. of Ariz.).
Provisions
1. Prohibits the state and its political subdivisions from compelling an applicant, employee,
student or contractor to endorse or support an individual on the basis of race or ethnicity
as a condition of admission, graduation, hiring, promotion, certification, contracting
decision or other employment function or scholarship opportunity. (Sec. 2)
2. Prohibits the state and its political subdivisions from requiring or soliciting the previously
mentioned individuals' statements in support of the following:
a) theories or practices that advocate for differential treatment on the basis of race or
ethnicity;
b) formulations of race-based diversity, equity, inclusion, or intersectionality in
contemporary American society beyond equal protections of law guaranteed by the
United States Constitution; or
c) belief that a racially neutral or colorblind law, policy or institution perpetuates racial
oppression, injustice or race-based privilege in contemporary American society. (Sec.
2)
3. Prohibits the state and its political subdivisions from requiring or soliciting an individual
to confess race-based privilege or discuss the individual's race, ethnicity or views and
experience of others race and ethnicity. (Sec. 2)
4. Prohibits the state and its political subdivisions from giving preferable consideration to
an individual for an opinion or act in support of another individual or group based on
their race or ethnicity. (Sec. 2)
5. Prohibits the state and its political subdivisions from requiring training or courses that
promote the tenets of provisions 2, 3 and 4. (Sec. 2)
☐ Prop 105 (45 votes) ☐ Prop 108 (40 votes) ☐ Emergency (40 votes) ☐ Fiscal Note HB 2868
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6. Prohibits the state from spending public money to operate or contract an office or position
in a public educational institution responsible for promoting preferential treatment or
discrimination toward an individual or group based on race or ethnicity. (Sec. 2)
7. Specifies that the previous provision prohibits using appropriated money or revenue to
promote or promulgate the following:
a) efforts to manipulate or influence the composition of the faculty or student body with
reference to race, sex or ethnicity except from ensuring colorblind and sex neutral
admission and hiring practices according to federal and state antidiscrimination laws;
b) differential treatment or special benefits based on race or ethnicity;
c) policies and procedures designed or implemented in reference to race or ethnicity;
d) training, programming, or activities with reference to race, ethnicity,
intersectionality, gender identity or sexual orientation; or
e) related practices or concepts as prescribed by the Legislature. (Sec. 2)
8. Clarifies the prohibition does not include the following:
a) academic instruction, research or creative work and its dissemination by students,
faculty or research personnel;
b) activities of registered student organizations or arrangements with guest speakers or
performers for short-term engagements; or
c) mental or physical health services provided by a licensed professional. (Sec. 1)
9. Prohibits the state from implementing disciplinary policies or practices that treat
students or employees differently based on race or ethnicity. (Sec. 1)
10. Prevents prohibitions on the following;
a) sex-specific spaces or designations that are reasonable and necessary for the operation
of public employment, education or contracting;
b) establishing or maintaining a federal program if ineligibility results in a loss of federal
money to the state and the action that would be otherwise prohibited is limited to
outreach, advertising or communication and does not modify the application criteria
or evaluation of students, employees or candidates;
c) qualifications based on tribal membership for programs designed to serve Indian
tribes;
d) data collection, advertising or outreach required by federal law;
e) mental or physical health services provided by a licensed professional;
f) training, programs or activities created by an attorney and approved by an
institution's general counsel and governing board for the sole purpose of complying
with an applicable court order, or anti-discrimination laws;
g) identifying and discussing historical movements, ideologies or instances of racial
hatred or discrimination including slavery, Indian removal, the Holocaust or
Japanese-American internment;
h) requiring disclosures of a state applicant, employee or contractor's scholarly research
or creative work;
i) requiring a state applicant, employee or contractor to certify compliance with state
and federal antidiscrimination laws; or
j) requiring a state applicant, employee or contractor to certify the existence of an
affirmative action plan that does not include preferential treatment based on race or
ethnicity if required by federal law. (Sec. 2) HB 2868
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11. Requires remedies for a violation are the same regardless of the injured party's race, sex,
color, ethnicity or national origins otherwise available for a violation of existing
antidiscrimination laws of the state. (Sec. 2)
12. Clarifies the definition of public university. (Sec. 2)
13. Renames Article 10 of Title 41, Chapter 9 from "Training and Instruction" to Preferential
Treatment." (Sec. 1)