Brief urges dismissal of suit against limits on DEI training

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(The Center Square) - The Phoenix-based Goldwater Institute filed a brief in support of House Concurrent Resolution 2044, a proposed constitutional amendment that would limit diversity, equity and inclusion requirements in state government hiring and training.

The state Legislature passed HCR 2044, which means Arizona voters will get to decide its fate in the Nov. 3 general election. In its brief, the institute is asking a judge in Maricopa County, home to Phoenix and the Legislature, to dismiss a lawsuit seeking to keep the amendment off the ballot.

However, in June, a progressive political advocacy group, Will of the People Arizona, filed a lawsuit against HCR 2044. The Center Square reached out to the organization, but it did not respond before publication time.

The Will of the People Arizona's lawsuit asks Maricopa County Superior Court Judge Julie Mata to issue an injunction to stop HCR 2044 from appearing on the general election ballots.

The lawsuit says HCR 2044 contains at least two proposed constitutional amendments. Plaintiffs argue that under the Arizona Constitution, multiple amendments can't be decided in a single ballot issue.

According to the lawsuit, one of the two amendments concerns revisions to the constitution's ban on discrimination and preferential treatment. Plaintiffs say the other amendment would impose new limitations on speech, training, policies and state spending.

These two amendments should be decided separately, the lawsuit says.

The lawsuit also contends that many of the measures in HCR 2044’s anti-discrimination provisions already exist under Arizona and federal law.  

Another legal claim in the lawsuit is that HCR 2044 violates people’s First Amendment rights by banning state-funded DEI training and certain race-related programs, as those restrictions limit free speech.

The Goldwater Institute brief agreed with the Will of People Arizona that many of HCR 2044’s anti-discrimination provisions are already illegal. But the institute contended Arizona “is perfectly free to impose multiple prohibitions on the same social evil if it chooses.”

Regarding the concern about multiple amendments, Goldwater Institute’s brief said HCR 2044 passes the “sufficiently related to a common purpose” test, which “requires only that the various provisions in HCR 2044 be ‘topically related' and ‘sufficiently interrelated so as to form a consistent and workable proposition.’”

“The provisions all center around the state’s funding of, and requiring attendance or participation in, practices that promulgate (and put the state’s imprimatur on) doctrines of racial differentiation and blame, or that teach that racial equality and color-blind government should be replaced with a system that treats Arizonans differently based on the color of their skin,” the brief said.

Tim Sandefur, an attorney for The Goldwater Institute, told The Center Square that the lawsuit’s First Amendment argument was “quite silly.”

“The government doesn’t have any First Amendment right to compel students or government employees to participate in these [DEI] training sessions,” said Sandefur, who wrote the brief.

According to Sandefur's brief, “HCR 2044 simply proposes that the state shall not use taxpayer dollars to promulgate such beliefs, or require students, contractors, employees, etc., to support such ideas, or to ‘confess race-based privilege,’ or to complete courses that teach these notions. The state is well within its right to impose such limits on itself.”

Sandefur described the lawsuit as a “desperate last-ditch effort to keep in place these mandatory propaganda sessions where people are forced to agree to a particular political viewpoint and where taxpayers are forced to foot the bill.”

Earlier this month, the U.S. Court of Appeals for the 11th Circuit struck down a portion of a Florida law that restricted how public university professors could discuss DEI-related concepts, finding it violated their First Amendment rights.

Sandefur said the Florida law affected “people’s First Amendment rights because professors do have a First Amendment right to talk about certain things in a classroom, and the government doesn’t have the ability to restrict that.”

HCR 2044 “does not have” the constitutional problems the Florida law had, the attorney said.

He added that HCR 2044 “does not affect classroom instruction.”

If people in Arizona want to teach DEI concepts, the ballot initiative doesn’t restrict their right to do that, Sandefur said. However, he noted, when people are forced to attend or agree to these classes, “that’s going too far.”