What would you do if your employer ordered you to do something state law explicitly says it may not require?
As a professor at Arizona State University, I found myself in exactly that situation. ASU required me to complete a diversity, equity and inclusion employee training program that I believe violated state law and promoted discriminatory ideas about race and sex. So I went to court.
Then came the twist: The state's lawyers argued that even if ASU violated my rights, I had no right to sue to enforce the law.
When my case reaches the Arizona Supreme Court on Sept. 1, the justices will confront a question much larger than DEI. At stake is a basic question of democracy and government accountability. What recourse do Arizonans have when the government violates
a law meant to restrain it?
Arizona law is unusually clear. The state and its agencies may not require employees to participate in training that presents "blame or judgment on the basis of race, ethnicity or sex," and it prohibits using public money for such training. I took the Arizona Board of Regents to court to enforce that protection. But the regents contend that even if I am right, I cannot sue because the law does not expressly give employees that right.
Under that theory, a state employee could be protected by law on paper yet have no recourse when the state violates that protection.
The trial court allowed my claim to proceed, but the Arizona Court of Appeals reversed, concluding that the law does not give employees the right to sue. Now it's up to the Arizona Supreme Court to make it clear that if a legal right exists, so does the right to enforce it.
That may sound like an obscure procedural dispute. It isn't. It goes to the heart of what representative government requires: that government be accountable to the people it serves and bound by the laws meant to restrain it.
The legislature did not merely recommend that state agencies avoid race-based blame ― it said the state may not require employees to undergo such training. If an employee subjected to allegedly unlawful training cannot ask a court to stop the violation, the law has become a dead letter.
The implications reach far beyond me. Legislatures routinely enact laws restricting what government agencies may do. Those restrictions mean considerably less if the people directly subjected to the prohibited conduct cannot invoke the courts when an agency ignores them.
Today, the dispute happens to involve a professor and a DEI training program. But the same principle could arise under a different law protecting a teacher, a whistleblower, a police officer or another public employee.
The political controversy may change. The fundamental question does not: What does "may not" mean if the government can violate the prohibition without the person protected by it having a way to enforce it? A law without an effective means of enforcement risks becoming little more than advice to the government.
My lawsuit does not ask courts to invent a new policy toward DEI; the Arizona Legislature already made that policy judgment when it decided that government employees should not be required to participate in training presenting certain forms of racial, ethnic or sexual blame, and taxpayers shouldn't be forced to fund it. Whatever one thinks of "whiteness," "decolonization," "intersectionality" or DEI more broadly, the principle at stake should not depend on whether one agrees with my views on those subjects.
That is why this case matters to Arizonans who have never heard of ASU's Inclusive Communities program or have no interest in the culture wars surrounding DEI. Representative government depends not merely on legislators passing laws, but on government agencies obeying them.
The Arizona Supreme Court's decision will determine more than whether my case proceeds. It will help decide whether "the state may not" is an enforceable limit on government ― or merely words on a page.
Owen Anderson is a professor of philosophy and religion at Arizona State University and author of The Declaration of Independence and God.
This article originally appeared on Arizona Republic: Arizona's anti-discrimination law must be enforceable | Opinion
