Advisory Opinion to the Attorney General ex rel. Amendment to Bar Government from Treating People Differently Based on Race in Public Education

778 So. 2d 888, 25 Fla. L. Weekly Supp. 546, 2000 Fla. LEXIS 1460
CourtSupreme Court of Florida
DecidedJuly 13, 2000
DocketNos. SC97086, SC97087, SC97088, SC97089
StatusPublished
Cited by54 cases

This text of 778 So. 2d 888 (Advisory Opinion to the Attorney General ex rel. Amendment to Bar Government from Treating People Differently Based on Race in Public Education) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Advisory Opinion to the Attorney General ex rel. Amendment to Bar Government from Treating People Differently Based on Race in Public Education, 778 So. 2d 888, 25 Fla. L. Weekly Supp. 546, 2000 Fla. LEXIS 1460 (Fla. 2000).

Opinions

PER CURIAM.

The Attorney General has requested this Court review proposed amendments to the Florida Constitution. We have jurisdiction. Art. IV, § 10; art. V, § 3(b)(10), Fla. Const. For the reasons expressed below, we hold the four proposed amendments violate article XI, section 3, Florida Constitution, and section 101.161, Florida Statutes (1999). Accordingly, the proposed amendments should not be placed on the ballot.

In accordance with article XI, section 3, Florida Constitution,1 the Florida Civil [889]*889Rights Initiative, the sponsor of the proposed state constitutional amendments, filed initiative petitions with the Secretary of State. On October 26, 1999, the Secretary of State submitted the initiative petitions to the Attorney General pursuant to section 15.21, Florida Statutes (1999).2 In compliance with section 16.061, Florida Statutes (1999), the Attorney General subsequently petitioned this Court for an advisory opinion regarding the validity of the proposed constitutional amendments.3 Thereafter, this Court issued an interlocutory order inviting interested parties to file briefs in this case. In response to the Court’s order, the following groups filed briefs as interested parties: Florida Civil Rights Initiative (FCRI), Leadership Conference on Civil Rights (Leadership Conference), Florida Conference of Black State Legislators (CBSL), Florida Board of Regents (Board of Regents), Campaign for a Colorblind America, Initiative & Referendum Institute and Pacific Legal Foundation (CCBA), Florida Chapter of the National Bar Association (NBA), and Floridians Representing Equity and Equality (FREE).

Generally, the four initiative petitions address alleged discriminatory practices in the areas of public education, employment, and contracting. The first three proposed amendments purport to bar differential treatment based on race, color, ethnicity, and national origin, and are identical in every respect except the designation of the targeted area of discrimination. For example, the first petition addresses education, the second petition addresses employment, and the third petition addresses contracting. The first three proposed amendments state:

ADD SECTION 26 TO ARTICLE I, FLORIDA CONSTITUTION AS FOLLOWS:
(1) The state shall not treat persons differently based on race, color, ethnicity, or national origin in the operation of public education.
(2) This section applies only to action taken after the effective date of this section.
(3) This section does not affect any law or governmental action that does not treat persons differently based on the person’s race, color, ethnicity, or national origin.
(4) This section does not invalidate any court order or consent decree that is in force as of the effective date of this section.
(5) This section does not prohibit action that must be taken to establish or maintain eligibility for any federal program, if ineligibility would result in a loss of federal funds to the state.
(6) For the purposes of this section, “state” includes, but is not necessarily limited to, the state itself, any city, county, district, public college or university, [890]*890or other political subdivision or governmental instrumentality of or within the state.
(7) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, color, ethnicity, or national origin, as are otherwise available for violations of then existing Florida education discrimination law.
(8) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

The ballot titles for the proposed amendments state: “AMENDMENT TO BAR GOVERNMENT FROM TREATING PEOPLE DIFFERENTLY BASED ON RACE IN PUBLIC EDUCATION.” As previously mentioned, the titles for the proposed amendments for employment and contracting are identical except they replace “public education” with “public employment” and “public contracting,” respectively. The summaries for the proposed amendments provide:

Amends Declaration of Rights, Article I of the Florida Constitution, to bar state and local government bodies from treating people differently based on race, col- or, ethnicity, or national origin in the operation of public education [public employment] [public contracting], whether the program is called “preferential treatment,” “affirmative action,” or anything else. Does not bar programs that treat people equally without regard to race, color, ethnicity, or national origin. Exempts actions needed for federal funds eligibility.

The fourth petition also purports to prohibit discrimination on the aforementioned bases, but also allegedly proscribes differential treatment based on sex. Furthermore, the fourth petition purports in one petition to bar differential treatment in the three areas, education, employment, and contracting, instead of addressing these areas in separate petitions. The fourth proposed amendment contains the same provisions as the first three, except it contains an additional section which states:

This section does not affect any otherwise lawful classification that: (a) Is based on sex and is necessary for sexual privacy or medical or psychological treatment; or (b) Is necessary for undercover law enforcement or for film, video, audio, or theatrical casting; or (c) Provides for separate athletic teams for each sex.

The ballot title for the fourth petition is also slightly different, stating “END GOVERNMENTAL DISCRIMINATION AND PREFERENCES AMENDMENT.” The summary for the fourth petition provides:

Amends Declaration of Rights, Article I of Florida Constitution, to bar government from treating people differently based on race, sex, color, ethnicity, or national origin in public education, employment, or contracting, whether the program • is called “preferential treatment,” “affirmative action,” or anything else. Does not bar programs that treat people equally without regard to race, sex, color, ethnicity, or national origin. Exempts bona fide qualifications based on sex and actions needed for federal funds eligibility.

The Court’s inquiry, when determining the validity of initiative petitions, is limited to two legal issues: whether the petition satisfies the single-subject requirement of article XI, section 3, Florida Constitution, and whether the ballot titles and summaries are printed in clear and unambiguous language pursuant to section 101.161, Florida Statutes (1999). See Advisory Opinion to the Attorney General re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 565 (Fla.1998); Advisory [891]*891Opinion to the Attorney General re Prohibiting Public Funding of Political Candidates’ Campaigns, 693 So.2d 972, 974 (Fla.1997). In order for the Court to invalidate a proposed amendment, the record must show that the proposal is clearly and conclusively defective on either ground. See Askew v.

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Cite This Page — Counsel Stack

Bluebook (online)
778 So. 2d 888, 25 Fla. L. Weekly Supp. 546, 2000 Fla. LEXIS 1460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/advisory-opinion-to-the-attorney-general-ex-rel-amendment-to-bar-fla-2000.