Case remains on hold at Arizona Court of Appeals
A favorable ruling in a conservative professor’s lawsuit against Arizona State University’s “diversity, equity, and inclusion” training could ban similar mandates at public universities across the state, a Goldwater Institute attorney said at a free speech event Monday.
ASU Alumni for Free Speech Chairman Joe Pitts hosted the event, titled “Free Speech on Campus: A Deep Dive Into the Anderson Case.” It featured remarks from Goldwater Institute attorney Stacy Skankey, who is representing ASU Professor Owen Anderson in the case Anderson v. Arizona Board of Regents.
The lawsuit challenges ASU’s “Inclusive Communities” faculty program, which Anderson (pictured) argues violates a state law prohibiting public agencies from requiring training that “presents any form of blame or judgment on the basis of race, ethnicity or sex,” The College Fix previously reported.
Although the case centers on ASU, Skankey said the real defendant is the Arizona Board of Regents, meaning the outcome could have statewide implications.
“We’ve asked for what we call declaratory and injunctive relief, meaning we’re going to declare that this is against Arizona state law and that they cannot do it and then enjoin them or stop them from doing it for the foreseeable future,” the attorney said.
Skankey also said the ideal outcome of the case would be for the court to declare ASU’s training unlawful and block the university from using similar programs in the future.
“[A] result that we would like to see from this case is that that training no longer exists,” she said.
Currently, the case is before the Arizona Court of Appeals. The Board of Regents filed a special action appealing the trial court’s decision to let the lawsuit proceed. That appeal has temporarily paused Goldwater’s efforts to obtain further training materials and financial records tied to the DEI program, Skankey said.
The appellate court could either reject the special action and send the case back down or issue a ruling that provides faster legal clarity on the issue.
“So we are waiting for the appellate court to give us some kind of a guidance on that. They can either send it right back down and they don’t have to touch it, or we might be able to have a little more clarity from an appellate court a lot sooner than we had originally predicted. So that is where we’re at,” Skankey said.
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The attorney also said the Arizona Constitution provides broader free speech protections than the U.S. Constitution, including the right not to speak or be compelled to affirm certain views.
This is central to Anderson’s case against ASU, as he was required to complete a mandatory training and quiz that he morally and legally opposed.
Because ASU is a state entity, Anderson can sue under Arizona law, making this case more substantial than a typical workplace training dispute.
Skankey clarified that not all diversity trainings are problematic and that some, like those used at ASU’s law school, stay within legal bounds.
However, the “Inclusive Communities” training went too far by promoting ideas such as the Constitution being inherently racist and privileged groups being inherently oppressive.
Additionally, she said there’s no clear timeline for how long the case will take, especially since it’s now in the Court of Appeals.
While trial court cases are usually more predictable, constitutional cases like this are highly variable. She said the appellate court has had their briefs for a while and requested additional briefing, which suggests the judges are giving it serious consideration. But it’s unclear when a decision will come.
Skankey previously told The Fix that she disagrees with the Arizona Board of Regent’s decision to appeal the ruling.
“ABOR’s motion to stay is improper at this time,” she said. “This looks like a delay to avoid the discovery phase of litigation and deprives Professor Anderson of additional information about the Inclusive Communities training that he is entitled to. We intend to oppose the motion and move this case forward.”
During the event Monday, Skankey also said the Goldwater Institute is monitoring another potential free speech concern at ASU.
The institute received a tip from a student about a mandatory club fee that may compel students to fund organizations they disagree with.
ASU charges students a $35 fee to support student clubs. While students can opt out of the fee during a specific window, new clubs can be created after that deadline, meaning students may end up funding organizations they disagree with without their knowledge or consent.
Goldwater is concerned that this lack of an ongoing option to opt out could result in students being compelled to subsidize political or ideological groups, raising free speech and compelled association issues.
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IMAGE CAPTION AND CREDIT: ASU Professor Owen Anderson