On Tuesday, my lawyers from the Goldwater Institute and I will appear before the Arizona Supreme Court to argue a proposition that, until recently, I would have thought too obvious to require lawyers: When the government violates a law enacted to protect you, you ought to be able to ask a court to make it stop.
Apparently this is controversial.
The question before the Arizona Supreme Court is larger than one professor, one university, or even DEI.
My case began with Arizona State University’s mandatory “Inclusive Communities” training. ASU required employees, as a condition of employment, to complete instruction on such fashionable academic doctrines as “whiteness,” “heteronormativity,” and “transformative justice.” An early version included a quiz requiring employees to select approved answers, including that land acknowledgments are important tools of accountability and that DEI should permeate every aspect of the university.
The course included material on “white privilege,” “white supremacy,” and the claim that American institutions normalize racial oppression. One segment even included a Starbucks employee describing an “existential crisis” when Americans could not pronounce her name.
There was, however, an inconvenience. Arizona has a law.
And the law says the state and its agencies “may not require an employee” to participate in training that presents “any form of blame or judgment on the basis of race, ethnicity, or sex.” It separately bars the use of public money for such training.
This is not an especially cryptic statute. One need not summon a seminar on poststructuralist hermeneutics to decipher the words “may not.”
I’ve alleged that ASU violated the statute. The merits of that claim have never been tried. Before ASU can be required to defend the training in court, the Arizona Board of Regents has argued that I cannot bring the case at all.
The trial court said I could. The Arizona Court of Appeals said I could not. The state Supreme Court has now agreed to hear the case and framed the question in the language lawyers love: whether the court of appeals failed to apply Arizona precedent for determining when a statute contains an “implied private right of action.”
That phrase sounds calculated to make normal Americans suddenly remember they have lawns to mow. But the principle behind it is important.
The law does not expressly say, “An employee may sue his employer for violating this section.” The Board of Regents therefore argues that no private cause of action exists. The Court of Appeals accepted that reasoning.
My attorneys argue that Arizona law does not end the inquiry there. Under state precedent, statutory silence “begins, rather than ends” the inquiry. Courts may consider a law’s language, context, purpose, subject matter, and consequences to determine whether a private right is implied.
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And the law is expressly directed at protecting state employees from being forced into prohibited training.
So here is the elementary question: If the employee the legislature meant to protect cannot enforce the protection, what exactly has he been given?
The lawmakers who sponsored the statute filed an amicus brief supporting my case and arguing that employees like me are exactly whom the law was intended to protect. That does not decide the legal question. It does underscore the practical one: If the protected employee cannot sue, who can?
A legal protection that government may violate without anyone able to invoke it in court has been demoted from law to suggestion.
That is why this case is not merely about DEI and certainly not merely about me.
Imagine a future Arizona government dominated by people whose politics are the reverse of mine. Suppose it mandates ideological training that violates a statute protecting progressive state employees. Should those employees be told, “Yes, the legislature prohibited this, but you are not permitted to ask a court to stop it”?
Of course not.
Conservatives, liberals, Christians, atheists, Republicans, Democrats, and the politically exhausted all have the same interest here. A government constrained by law is safer than a government permitted to decide for itself whether the laws restraining it will actually be enforced.
The larger controversy over DEI only sharpens the point. For years, university administrators embraced an ideology that purported to fight racial discrimination while rehabilitating racial judgment under new terminology. The vocabulary changed. The moral error did not.
Now legislatures are acting, parents are objecting, faculty members are speaking, and DEI offices are being renamed or reorganized.
But changing the stationery is not accountability.
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Institutions regain public trust by telling the truth about what they did. Administrators who imposed unlawful training should answer for it if a court finds that the law was violated. Those who objected should be able to get through the courthouse door long enough to have that question decided.
When a government institution is accused of violating the law, its first instinct should not be to discover an ingenious reason the citizen cannot sue.
Let the case be heard.
If ASU’s training complied with Arizona law, let ASU prove it. If it did not, let the courts say so.
That is what courts are for.
The question before the Arizona Supreme Court is larger than one professor, one university, or even DEI. It is whether a law written to restrain government is something the people it protects may actually invoke against government.
Arizona has already told its agencies, “You may not.”
Now we find out whether an employee is allowed to answer, “Then prove it in court.”
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