Key Points:
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Judge considers ballot qualification challenge to anti-DEI ballot measure
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Plaintiffs claim measure illegally combines disjointed constitutional provisions
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Supporters claim stronger anti-discrimination, foes fear free speech violations
A Maricopa County judge is considering whether a measure that would broadly ban diversity, equity, and inclusion in government is legally eligible to appear on the November ballot.
House Concurrent Resolution 2044, sponsored by House Speaker Steve Montenegro, R-Godyear, and referred to voters by the Republican majority this past session, follows the federal government’s efforts to eliminate state-sanctioned DEI programs.
The measure would amend the state Constitution and cement the existing ban on preferential treatment and discrimination based on race or ethnicity in public employment, education and contracting.
But it would take a step further in banning institutions from requiring or asking for support of, providing training on, or mandating any courses that teach DEI or the belief that “colorblind” law, policy or institution contributes to racial oppression, injustice or privilege.
It would also bar all K-12 schools and universities from using public monies to influence the composition of the faculty or student body, and generally bar any public bodies from enacting policy, providing special benefit or mandating training referencing race, ethnicity, sex or sexual orientation.
In a lawsuit filed June 22, the progressive political action committee Will of the People and an elector sued the state, claiming HCR2044 violates the separate amendment rule, which bars ballot measures from “logrolling” unrelated provisions in the same act.
Josh Barro, attorney for Will of the People, claims HCR2044 presents a noncontroversial provision already enacted in Arizona – the ban on practicing and spending public money on discriminatory or preferential treatment based on race or ethnicity – but “smuggles in” anti-diversity, equity and inclusion provisions.
“You have a popular, established right paired with a distinct, controversial policy,” Barro said.
Barro argued the remaining provisions targeting employee training on race, ethnicity, sex, gender identity or sexual orientation contradict the initial intent of the measure.
“If you can’t mention race, or you can’t train your employees to be mindful of diversity, or pursue equity in the workplace, you are literally promoting discrimination,” Barro said.
He told the court the provisions stand directly at odds with each other, rendering the measure insufficiently connected as required by law.
“On one hand, HCR 2044 aims to prohibit discrimination,” Barro said. “On the other hand, HCR 2044 uses the smuggled content to restrict programs that aim to accomplish the same goal.”
Both the attorney general and secretary of state declined to defend the law. But Kory Langhofer, attorney for the Legislature, claims the provisions in HCR2044 do not replace or continue the original language in the state Constitution as Barro claims.
He contends that the measure closes a loophole and “builds out specific examples of types of invidious discrimination that are prohibited in state institutions in Arizona.”
Langhofer contended all components of the measure are aimed at and connected in ending discrimination and governmental bias.
“It’s all going in the same direction,” Langhofer said.
Maricopa County Superior Court Judge Julie Mata took the matter under advisement.
If the measure does ultimately end up on the ballot, groups are already lined up to offer support and prod opposition.
The Goldwater Institute, a primary backer of HCR2044, celebrated the measure’s intent to shut down DEI-related offices and training and prohibit the use of diversity statements in employment and education.
Coursework at public universities would fall under fire under the new policy, too.
In April, the Goldwater Institute released a report claiming that Arizona’s public universities were requiring DEI in a long list of classes but failing to meet academic standards set by the Arizona Board of Regents.
Classes flagged by the organization included: “Anthropology of American Democracy,” “Surveillance and Society,” “Introduction to Military Studies,” and “Current Issues in National Politics.”
Though HCR2044 may survive litigation challenging its qualification for the ballot, legal challenges to the measure’s substance could come down the line.
The American Civil Liberties Union of Arizona already claims HCR2044 restricts academic freedom in colleges and universities, violates the First Amendment rights of students, teachers and administrators, and targets viewpoints based on race, sex and discrimination.
“Ideas are not illegal, and there is no ‘government-approved’ speech exception to the First Amendment,” Darrell Hill, policy director for the ACLU of Arizona, said in a statement. “The state cannot adopt a policy or rule that punishes faculty, administrators, or students for expressing their beliefs or prohibits wide scopes of ideas from being debated at universities.”
