As the governor’s race dominates voters’ attention, a less understood ballot question could change how Wisconsin’s constitution treats race and sex.
Voters will head to the polls on Nov. 3 to answer the question at the top of the ballot: David Crowley or Tom Tiffany? For months, the gubernatorial candidates’ names have saturated TV and billboard ads—and for good reason, because the governor has the power to block the federal agenda while driving local policy. But no less important is a down-ballot referendum question that could end programs Wisconsin has provided for decades, from targeted scholarships to initiatives supporting minority- and women-owned business owners.
The ballot will include three yes or no questions that, if passed, would amend the Wisconsin Constitution. The first would prohibit the governor from using the partial veto to create or increase any tax, and the second would prohibit the government from closing places of worship during emergencies. The third would prohibit state governmental entities, including schools and public universities, from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin.
Rep. David Murphy (R-Greenville), who authored the amendment with Sen. Steve Nass (R-Whitewater), told News 1 that passage of Question 3 would restore “merit, fairness and equality to government practices in Wisconsin, all the way from the State Capitol, down to our school boards.”
The referendum’s purpose seems straightforward: abolish discrimination and preferential treatment. But what is “preferential treatment,” and does this mean that discrimination is currently legal? Part of what makes Question 3 confusing is its purposefully vague wording, according to its critics.
Heather DuBois Bourenane, executive director of the Wisconsin Public Education Network, said the referendum’s wording can be misleading because discrimination is already illegal under federal and state law. In September, her organization signed a joint letter opposing Question 3 and calling it an “anti-equity” law.
Reading this question for the first time, “it sounds like you’re voting against discrimination,” DuBois Bourenane said. “It’s a very confusingly worded amendment that we hope will not fool people.”
Ruben Anthony Jr., president and CEO of the Urban League of Greater Madison, said of the ballot measure, “It seems like the intention is to kind of confuse and trick folks so they don’t clearly know what they’re voting for.”
Supporters of the amendment say it would bring clarity to the law.
In June, the Wisconsin Institute for Law and Liberty, a think tank founded in 2011 to represent conservative and libertarian legal interests, won a unanimous Wisconsin Supreme Court decision ruling the UW Systems’s Minority Undergraduate Retention Grant Program unconstitutional. In August, UW rescinded the grant program, which provided financial assistance to eligible Black, Hispanic, Native American and certain Southeast Asian undergraduate students to help them remain in college.
The group also sued UW–Madison over at least 20 race-based scholarships in July. The case is still pending.
“Each student is going to need to be evaluated based on their own merit and need, rather than their race,” said Daniel Lennington, WILL’s managing vice president and deputy counsel.
However, if courts interpret preferential treatment broadly, the amendment may also impact programs designed to support women and girls, such as leadership programs and scholarships, said Suzanne Eckes, a UW-Madison professor of education, law, policy and practice.
Wisconsin’s Constitution does not specifically name protected categories like sex, so the amendment would be a first, said Bree Grossi Wilde, executive director of the State Democracy Research Initiative at the University of Wisconsin Law School.
Wilde said courts could read the amendment as a ban on treating sexes differently, or apply a test that allows it when necessary, a change that could jeopardize the future of programs supporting women- and minority-owned businesses or maternal healthcare, among others.
“There’s just a lot of unknowns with this one,” Wilde said.
Despite protests that the amendment will take resources away from underrepresented groups, Lennington said the institute supports it because it would confirm that no one in Wisconsin “can be treated differently because of race or sex.” The government could still treat men and women differently if it has “an important reason,” such as providing separate prisons and dorms, he said.
But programs to help women-owned businesses would probably not meet the criteria, he said.
“That’s sort of a bigoted stereotype to say that all women, because they’re women, need help, or they need access to special programs because they’re women,” Lennington said, adding that such stereotyping “sort of demeans the dignity of all people.”
The Wisconsin Supplier Diversity Program certifies minority-owned businesses for access to state contracts, said Joan Schwarz, a board member of the League of Women Voters of Wisconsin. In 2023, Schwarz said, the state paid more than $200 million to diverse suppliers. But if the amendment puts the program’s legitimacy in question, it could end the certification process.
Anthony said that minority-owned businesses and their employees would be hurt first if the amendment passes, adding that programs like these are meant to correct an unjust system created by historic racism, not to give special treatment to certain groups.
“I don’t think that there’s a level playing field,” Anthony said. “When you start behind in a race, sometimes it takes special policies to allow people to at least catch up.”
According to Eckes, Wisconsin K-12 school districts may also be forced to review programs such as affinity groups and mentoring and STEM initiatives targeting specific groups to see whether they could be considered preferential treatment based on race or sex. That doesn’t mean those programs would automatically be banned, she said, since the details of who is eligible and how students are selected would matter.
DuBois said the amendment could also extend into classrooms and affect targeted student support.
“The suggestion that diversity, equity and inclusion programs and practices are unconstitutional— or somehow violate the rights of other students—is a political absurdity, not a lived reality for kids,” DuBois Bourenane said.
Lennington pointed to a Sun Prairie school program as an example of one that could change with the amendment. He said teachers in the program are supposed to meet more frequently one-on-one with Black students but not with students of other races.
DuBois Bourenane said she wasn’t familiar with that specific program, but that targeted support, rather than favoring certain groups of students over others, does help meet students’ needs.
“That is called individualized instruction,” DuBois Bourenane said. “That is not an example of bias or preferential treatment.”
Since the amendment also covers public employment, DuBois Bourenane said it could further reduce teacher diversity, which, as she noted, is already an issue in the state, where many school districts lack staff who reflect racial and cultural backgrounds of their students. Each of these cuts come amidst Wisconsin displaying some of the widest racial gaps in test scores between white and Black students in the nation. One study determined Wisconsin to have the worst racial equity in education in the nation.
“That is a very, very dangerous thing for Wisconsin, and it does not serve educators or children well,” DuBois Bourenane said. “I honestly haven’t met a single person in the public schools sphere who thinks this is a good idea or thinks this will help children.”
If the amendment passes, Eckes said some districts may engage in what education law scholars call “anticipatory compliance,” modifying or pausing school programs to reduce legal risk before courts determine what the amendment permits.
However, the timelines of these modifications and other potential impacts of the amendment, if it passes, are murky.
Lennington said the amendment would go into effect immediately, while Schwarz noted that after a similar amendment passed in Michigan, equity programs were rolled back over several years.
Despite the changes it could bring about, opponents of the amendment say many voters are unaware that Question 3 is on their ballot and are working to educate them.
The League of Women Voters has sent thousands of fact sheets to local chapters and op-eds to newspapers around the state, Schwarz said. The Urban League has been knocking on doors and hosting informational podcasts, Anthony said.
Still, Wilde said, ballot questions are often overlooked.
“A lot of people walk in blind,” Wilde said, adding that voters who read the question might not fully understand what would change.
The referendum results will be announced after the election on Nov. 3.
