The proposed amendment, question 3 on the Nov. 3 ballot, follows a national movement that seeks to reframe civil rights laws as discriminatory against white Americans. It passed through the Legislature along party lines.
A lead sponsor, Rep. Dave Murphy (R-Hortonville), says the amendment would prohibit governmental entities from “discriminating against or granting preferential treatment to anyone based on race, sex, color, ethnicity, or national origin in public employment, education, contracting, or administration.”
The proposal is one of three constitutional amendments that will appear on November ballots, but this one, question 3, is uniquely situated to ask voters to ignore reality.
According to Murphy in his written support of the measure, the bill “Restores MERIT,” “Restores FAIRNESS,” “Restores EQUALITY,” and will provide, “equal opportunity for all, not forced equal outcomes (“equity”) that ignore ability.”
At this juncture in U.S. history, it is worth remembering that since the abolition of slavery in 1865, racial discrimination has, in theory, been illegal in the United States by the guarantee of equal protection of the law.
Only the last of the Civil War Amendments, the 15th Amendment, though, mention races discrimination as explicitly unconstitutional. It proclaims, “the right of citizens of the United States to vote shall not be denied or abridged by the United States or any state on account of race, color, or previous condition of servitude.”
The Wisconsin Constitution, like the U.S. Constitution, also already guarantees equal protection of the law regardless of race. It says, “all people are born equally free and independent, and have certain rights” and “to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.”
What then is the point of a constitutional amendment prohibiting discrimination? What is Murphy promising to “restore” with this amendment?
Prior to the 1964 Civil Rights Act (99 years after we ended slavery), states, including Wisconsin, persisted in an end run of the U.S. Constitution. From redlining to voter literacy tests, policies perpetuated inequality among the races, claiming to ensure “separate but equal” protection of the law.
Recognizing the states’ failure to realize the promise of the Constitution, the Civil Rights Act sought to enforce equal protection against the states where a pattern or practice of discrimination persisted.
But lawmakers also recognized that systemic racism was so deeply enmeshed in U.S. society that states would need to be sued into compliance. That is why the 1964 Civil Rights Act permits the attorney general to pursue injunctive relief against those who fail to integrate or otherwise persist in discriminatory action.
Only through double-think can reasonable and informed people believe identity-based programs aimed at leveling the playing field in a country that persisted in state-sanctioned discrimination for more than two centuries is the real discrimination threatening equality.
To be clear, we never collectively woke up and decided racism was wrong— that some people weren’t inferior based solely on the immutable characteristic of race.
Just a generation ago, millions of white Americans organized against desegregation in a movement called “Massive Resistance,” following the battle to desegregate schools after Brown vs. Board of Education.
And still, as recently as the 2020-2021 school year, “over 33 percent of students … attended a school where more than three-quarters of the students were of a single-ethnicity—showing that de facto segregation still exists,” according to the Supreme Court Historical Society.
Proponents of the amendment, including Sen. Steve Nass (R-Whitewater), argue that “past discrimination, however wrong, cannot be corrected with more discrimination.” They support the idea that ameliorative measures required by the social damage wrought from 250 years of institutionalized racism are somehow pernicious and the real driver of discrimination.
“Old wounds cannot be healed by inflicting new ones,” Nass wrote in support of the bill.
But the amendment ignores an unfortunate reality. Wisconsin remains among the most the racially segregated states in the U.S. and is among the states who have made the least strides toward racial integration, edging out only the District of Columbia in overall ranking in a recent study.
The most recent data shows Wisconsin is among the five states with the least progress in racial integration over time, failing to close racial gaps between Black residents and white residents in median annual income, labor force participation, standardized test scores, and voter turnout.
Despite these facts, Murphy says the bill is a “proven model” and is based on Michigan’s 2006 constitutional amendment, which banned affirmative action before the U.S. Supreme Court did so formally in Students for Fair Admissions v. University of Noth Carolina.
But Michigan is neck and neck with Wisconsin in its failure to achieve an integrated population or make strides toward disparate outcomes, ranking 47 to Wisconsin’s 50 for least racial integration and 42 compared to Wisconsin’s 46 for racial integration progress over time.
So, a similar amendment did not “RESTORE equality” in Michigan.
It’s not surprising because equality never existed.
Passage of the question 3 amendment would signal to minorities and women that we’re ready to wash our hands of the plight wrought by years of inequity, that this is as level that playing field will get, that we’re content with the status quo.
It feels worth mentioning that none of the proposed amendment’s sponsors hails from a racially diverse city within the state. Whitewater, where Nass is from, is 83.2% white, according to recent U.S. Census data.
Instead, the proposed amendment targets municipalities living with and still struggling to reconcile the knock-on effects of segregation.
Among the targets is Milwaukee County’s Racial Equity Budget Tool. In its written support of the proposed amendment, Wisconsin Institute for Law & Liberty cites the budget tool as a discriminatory practice the amendment would ban.
The budget tool, which the county describes as a “structured equity lens,” so that government departments can “critically assess the impacts of budget decisions on communities of color,” is a county response to 2019 statistics showing that a white Milwaukeean lives an average 14 years longer than a Black Milwaukeean, and the Black infant mortality rate is about three times that of white infants.
In support of the amendment, Murphy said “this isn’t a new policy,” and “it’s a return to Wisconsin’s core values.”
Voters need ask what those “core values” are and whether we really want to enshrine our commitment to these disparities in the state’s constitution.
We need to ask whether we want to be a community that sits on its hands, prohibiting the occasional, sometimes lifesaving, hand up in the name of the delusional idea that we’re living in a post-racial America.