There are some principles we like to think America settled a long time ago. Racial discrimination is wrong. Government should not treat people differently because of the color of their skin. And our public institutions should judge individuals based on their merit and character – not their race. Unfortunately, those previously settled principles have been completely undermined by the radical “Diversity, Equity, and Inclusion” (DEI) program.
This November, Arizona voters will have an opportunity to reaffirm that principle by voting YES on Proposition 142. The measure would strengthen Arizona’s constitutional protections against race-based discrimination and preferential treatment, close an existing loophole tied to federal funding, and prohibit some of the craftier ways public institutions have used to preserve race-based DEI policies and practices.
Isn’t Racial Discrimination Already Illegal?
Most people already believe it is unlawful for the government to discriminate based on race – and didn’t Arizona already prohibit it anyway?
Arizonans certainly thought they had.
In 2010, voters passed Proposition 107 by an almost 20-point margin, amending the state constitution to prohibit the state from discriminating against, or granting preferential treatment to, any person based on race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.
This should have closed the door on government-sanctioned racial preferences in Arizona.
Over the last four years Governor Katie Hobbs, the teachers’ unions, and their allies in the corporate media have been relentlessly attacking Arizona’s Empowerment Scholarship Accounts (ESAs) program, the most popular and successful school choice program in the country. Over 106,000 kids are currently using an ESA scholarship, with thousands more signing up each year.
Their most recent assault began last March, when the unions filed their ballot initiative in an attempt to gut ESAs. If passed, over 30,000 kids would have immediately lost their ESA scholarship or had their scholarship funds revoked because of the new restrictions. Another 400,000 children would have been permanently barred from participation in the program. The National Education Association (NEA) poured $7 million into this fight, hiring an army of paid circulators that were willing to say, and sometimes do, just about anything for a paycheck.
Interestingly, there were two different responses to this most recent threat. The response from most of Arizona’s school choice organizations and ESA families was a full-throated defense of the program. Within days, the AZ school choice coalition launched a countercampaign and made clear that ESAs would not go undefended. They fundraised, developed messaging, deployed grassroots “decline to sign” efforts, and crafted legislative countermeasures to put the unions on their heels.
And after the initiative was filed with the Secretary of State in July, a petition review was launched by the Goldwater Institute, which our organization helped support. That petition review revealed that thousands of signatures were either invalid or unlawfully collected by convicted felons. The result was that we proved in court that the NEA and Save our Schools was short of qualifying by nearly 15,000 signatures, and we knocked them off the ballot.
It was a pivotal victory in a long line of big wins for school choice in Arizona.
However, during this battle against the radical left, an alternative response to this attack emerged from the shadows: a belief that the only way to save the ESA program was to enact punitive regulations on the families that use the program. Rather than fighting back against the false attacks being levied against ESAs by the unions and the media, they preferred to make concessions that would make the program politically “attack-proof” in the future.
Sadly, this strategy has been tried in the past when dealing with the unions, and it almost resulted in irreversible disaster for our state.
Conceding the Issue to the Left Is the Quickest Way to Defeat
Our organization has seen this coordinated attack from the left before. Different issues, different talking points, but the same trajectory that involves goading us into accepting the other side’s terms of surrender…
The Goldwater Institute is demanding that Pima County rescind its 120-day moratorium on new data center development, arguing that the county has failed to meet Arizona’s legal requirements for suspending otherwise lawful development and could face property rights claims.
Goldwater announced the demand earlier this week, following a letter sent to county leaders. Its challenge focuses on the evidence supporting the moratorium and whether existing regulations could address the county’s concerns.
**Data center moratorium in Pima County, AZ**
It's illegal, and we're demanding that the county immediately rescind its moratorium on new data center development. The sweeping prohibition violates Arizona law and threatens private property rights.https://t.co/SbZt4N6Fyh
The Pima County Board of Supervisors approved Resolution 2026-56 on Sept. 22, imposing the pause while officials develop new zoning requirements for data centers.
The measure passed 3-2, with Supervisors Steve Christy and Rex Scott opposed. Before approval, supervisors amended the measure to apply to development for which permit applications had not yet been submitted.
“Arizona law only allows moratoria if there’s strong evidence of an imminent risk to the public,” Goldwater Institute Vice President for Litigation Jon Riches said. “It does not allow the county to freeze otherwise lawful property uses just because county leaders want more time to consider new rules.”
Under A.R.S. § 11-833, counties must provide public notice, hold a hearing, and make written findings before imposing a development moratorium. Goldwater’s challenge centers on the statute’s compelling-need standard, defined as “a clear and imminent danger to the health and safety of the public,” and additional requirements governing rural land, which the statute defines to include unincorporated county property.
In its letter to the board, Goldwater argues that the county has not demonstrated an essential public facilities shortage and cannot establish the compelling need required under the alternative provision.
Goldwater also contends that the county has failed to show why existing regulations cannot prevent irrevocable public harm, why alternative approaches would be inadequate, or why the moratorium is sufficiently limited geographically.
Much of the dispute centers on the county’s August public health review. The review identifies potential effects involving air quality, water use, noise, heat, and other conditions, while acknowledging a lack of direct empirical evidence measuring health effects in communities near data centers.
The review stated, “Overall, this report emphasizes the need for site-specific data, fenceline monitoring, and equity-centered impact assessments on any proposed data center projects. It also highlights a critical limitation due to an evidence gap: current literature provides modeled environmental exposures but highlights the lack of direct empirical evidence on health impact in communities near data centers, underscoring the importance of proactive monitoring and mitigation if development proceeds.”
In an accompanying Aug. 26 memorandum, County Administrator Jan Lesher cautioned that the review should not be read as a prediction that data center development would produce specific adverse health outcomes. The memorandum calls for additional project-specific information and describes the framework as a tool for monitoring, evaluation, and potential mitigation.
Goldwater argues those limitations undermine the county’s justification for suspending development.
County Board Chair Jennifer Allen disputed that interpretation. Allen said Goldwater was misconstruing the health framework’s role and maintained that the county had evidence supporting a moratorium consistent with state law.
The county’s agenda materials cite concerns about emissions, water scarcity, energy reliability, noise, and heat. They describe the pause as time for an accelerated zoning code amendment process.
Goldwater also raised potential compensation claims under Arizona’s Private Property Rights Protection Act. A.R.S. § 12-1134 provides for compensation when a land use law enacted after an owner acquired property reduces existing property use rights and the property’s fair market value, subject to statutory exemptions. The statute includes exemptions, including for health and safety protections, and places the burden of establishing an exemption on the government.
Riches said that Goldwater would consider representing an affected property owner but did not yet have a case.
Goldwater argues the county cannot establish that exemption here and warns that affected property owners could challenge the moratorium and seek compensation.
“There may be legitimate concerns about infrastructure and resources from the construction of data centers—as with any other development—but these can be addressed through clear, generally applicable rules that apply consistently to similar land uses,” Riches said. “What Pima County cannot do is arbitrarily ignore, pause, or trample on property rights.”
Goldwater Institute attorneys urged the Arizona Supreme Court on Tuesday to allow Arizona State University (ASU) professor Owen Anderson to pursue his lawsuit alleging that the school’s “Inclusive Communities” employee training violated state law.
During oral arguments in Arizona Board of Regents v. Anderson, Goldwater Institute Vice President for Litigation Jon Riches argued that the Arizona Court of Appeals applied the wrong legal analysis when it concluded that Anderson had no implied private right to enforce the statute in court.
If a legal right exists, so does the right to enforce it.
That's the case we made before the Arizona Supreme Court today on behalf of @dr_owenanderson, a professor at ASU who is fighting for his right NOT to be forced into discriminatory DEI training. pic.twitter.com/OoPngHtixm
“Where there is a legal right, there is a legal remedy, is one of the oldest maxims in Anglo-American law,” Riches told the justices. “For decades, this court has applied that principle to find implied causes of action where a statute does not expressly create them. Yet without citing a single one of this court’s cases, the lower court did exactly what this court commanded it not to; it treated legislative silence as dispositive as to whether a statute creates a cause of action. But as this court [has held], legislative silence begins rather than ends the inquiry.”
In a post to X on Tuesday, Anderson invoked the legal maxim in Latin, writing, “‘ubi jus ibi remedium’ if there is a right there is a remedy. A cornerstone principle of common law. Yet @ASU and @AZRegents are asking the @AZCourts to suspend this principle and keep me as an employee from holding them responsible for racist DEI training.”
Anderson also shared a clip from the hearing in which Justice Clint Bolick characterized the right-remedy maxim as “the indispensable common law principle” and invoked Chief Justice John Marshall’s discussion of the principle in the landmark 1803 decision Marbury v. Madison.
Following the hearing, Anderson posted a statement saying, “That was an excellent hearing today before the @AZCourts. Jonathan Riches for @GoldwaterInst presented a solid case. The Justices asked the @AZRegents lawyer questions that exposed the contradiction at the heart of their claims, with their lawyer at one point stumbling so badly as to say, ‘I forgot the question.’ Oops! Now we wait for a decision.”
That was an excellent hearing today before the @AZCourts Jonathan Riches for @GoldwaterInst presented a solid case. The Justices asked the @AZRegents lawyer questions that exposed the contradiction at the heart of their claims, with their lawyer at one point stumbling so badly…
The Supreme Court limited its review to whether the Court of Appeals failed to apply the factors established in the court’s 1988 Transamerica Financial Corp. v. Superior Courtdecision before finding that A.R.S. § 41-1494 provides no implied private right of action.
Those factors include the statute’s context and language, its subject matter, its effects and consequences, and the law’s overall purpose. Riches argued that the lower court improperly treated the Legislature’s silence about a private cause of action as conclusive instead of beginning the broader analysis required under Transamerica.
The Arizona Board of Regents asked the justices to uphold the appellate ruling. In its supplemental brief to the Supreme Court, the board argued that courts should begin with the statutory text and consider secondary factors such as legislative history, consequences, and purpose only when the text is ambiguous.
The board maintained that § 41-1494 regulates government conduct without creating a private right or remedy. It also pointed to the statute’s annual compliance-reporting requirement and argued that lawmakers left enforcement to elected officials. The board said nearly all surrounding statutes contain express private rights of action, indicating that the Legislature deliberately omitted one from § 41-1494.
The statute prohibits the state, its agencies, and political subdivisions from requiring employees to undergo training, orientation, or therapy that presents blame or judgment based on race, ethnicity, or sex. It also prohibits the use of public money for such training and directs the Arizona Department of Administration to submit an annual compliance report to the governor and legislative leaders.
Anderson’s case began after ASU informed employees in October 2022 that they were required to complete its “Inclusive Communities” training. Anderson, a philosophy and religious studies professor, filed suit against the Board of Regents in 2024, seeking declaratory and injunctive relief.
Anderson alleges that the training presented prohibited concepts involving race, sex, and identity. His court filings cite training materials discussing “whiteness,” white supremacy, heterosexual privilege, land acknowledgments, and efforts to “decolonize the university.” The accompanying examination identified designated answers concerning systemic bias, transformative justice, and the incorporation of diversity, equity, inclusion, and belonging throughout the university.
A Maricopa County Superior Court judge found that the statute contained no express private cause of action but concluded that it implied one for employees subjected to prohibited training. The Arizona Court of Appeals reversed that decision in December, finding that the statute “unambiguously does not create a private right of action.”
The Court of Appeals left Anderson’s underlying allegations about the training unresolved. The Supreme Court’s current review also concerns the enforcement question rather than whether the content of ASU’s training violated § 41-1494.
The Board of Regents has disputed that the training was mandatory. Anderson said the alleged injury arose from being required to undergo the training.
“Well, I think the hurt is in taking the training, and so I would ask them to consider it from their perspective if they were asked to sit through hours of training that involved racial discrimination against a group they identify with, they would be offended by that and feel hurt,” Anderson said. “So the hurt — the consequence — is just in the fact that I had to sit through that.”
Anderson previously asked the Supreme Court to accept the case after the appellate ruling, arguing that public employees would otherwise lack an effective way to enforce the training prohibition. Goldwater’s petition sought recognition of an implied private cause of action allowing employees to challenge alleged violations by government employers.
The Supreme Court took the case under advisement following Tuesday’s arguments. Anderson said that he intends to proceed toward trial if the justices recognize his right to bring the claim. The court has not announced a deadline for its decision.
The Arizona Supreme Court will hear arguments Sept. 1 in Arizona State University (ASU) professor Owen Anderson’s effort to pursue a lawsuit alleging the school’s mandatory employee training violated state law. The law bars public employers from requiring training that assigns blame or judgment based on race, ethnicity, or sex.
The justices agreed to review whether the Arizona Court of Appeals should have applied factors established in a 1988 state Supreme Court decision before concluding that the law gives employees no implied private right to sue. The court’s review is limited to that enforcement question.
Anderson’s allegation that ASU violated the law remains unresolved. The Court of Appeals also did not decide whether the training’s contents violated the statute.
As AZ Free News reported in February, Anderson asked the high court to take the case after the Court of Appeals held in December that the statute supplied no private cause of action. His attorneys at the Goldwater Institute argued in their petition that the ruling departed from the method Arizona courts have used to determine whether lawmakers intended an implied remedy.
ASU forced a professor to take DEI training as a condition of employment.
ASU required employees to complete its “Inclusive Communities” module, one of three employee-training modules described in the Court of Appeals’ memorandum decision. According to Goldwater’s case materials, employees were instructed to repeat the training every two years, and Anderson viewed but did not complete the module or its accompanying quiz. The philosophy professor brought his lawsuit against the Arizona Board of Regents in 2024, alleging that the training presented race- and sex-based concepts prohibited by state law.
The statute bars the state and its political subdivisions from requiring employee training that presents “blame or judgment” based on race, ethnicity, or sex. It also prohibits the use of public money for such training and directs the Arizona Department of Administration to submit an annual compliance report to the governor and legislative leaders. The law exempts sexual harassment training from its restrictions.
“Ultimately, the question now before the Arizona Supreme Court isn’t a left or right issue—and it’s not just about DEI—it’s about whether a state employee has the right to hold their employer accountable when it violates the law,” Anderson said in a statement released by the Goldwater Institute.
In a statement to AZ Free News, Dr. Anderson added, “This case is now an employment case. ABOR/ASU is arguing a state employee does not have standing to hold them accountable for breaking § 41-1494. That means this is not a conservative vs. liberal issue. It is an employment issue that will affect all state employees going forward.”
A Maricopa County Superior Court judge denied the Board of Regents’ motion to dismiss Anderson’s statutory claim. The judge found that the Legislature had created an implied right for affected public employees to enforce the prohibition, despite the absence of an express authorization to sue. The Board then filed a special-action petition with the Court of Appeals, which accepted jurisdiction and vacated that portion of the trial court’s ruling.
The appellate panel concluded that the statute’s text contains neither an express nor an implied private right of action. It pointed to the statutory compliance reporting system and said a mandamus action could compel officials to submit the required reports. The panel left the superior court free to consider a separate request for equitable or declaratory relief if a proper party raises that issue on remand, according to the December decision
Goldwater’s petition for review argues that the appellate court should have applied the factors set out in Transamerica Financial Corp. v. Superior Court. Those factors include the statute’s context, language, subject matter, effects, consequences, spirit, and purpose. Goldwater contends that the law protects an identifiable group of public employees and that the reporting requirement does not give an employee a remedy after an alleged violation.
In its supplemental brief, the Board of Regents argues that the Court of Appeals correctly began with the statutory text. The Board says the provision prohibits specified government conduct without granting individuals a cause of action, and that the Legislature’s inclusion of a reporting system shows the enforcement approach it selected. It also points to express private remedies in surrounding statutes and argues that the Legislature deliberately left them out of § 41-1494.
Goldwater Vice President for Litigation Jon Riches said that lawmakers intended state employees to be able to challenge alleged violations in court.
“There is no doubt that when Arizona lawmakers banned mandatory DEI trainings for state workers, they intended for those workers to have ability to challenge their employers in court,” Riches said. “We’re now asking for the Arizona Supreme Court to correct the lower court’s error and restore Arizonans’ right to hold government agencies accountable when they violate the law.”
The hearing comes as Arizona voters prepare to consider Proposition 142 on the November ballot. The separate proposed constitutional amendment would expand the state’s prohibition on preferential treatment and restrict compelled support for race- or ethnicity-based preferential treatment in public education and employment, according to the official ballot language.
