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AG won’t defend ‘no promo homo’ lawsuit

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)

Attorney General Mark Brnovich is not going to defend the state’s controversial “no promo homo” law.

And state legislative leaders are moving to amend or repeal the law rather than try to fight a federal court lawsuit which contends it’s unconstitutional.

In a letter Tuesday to legislative leaders, O.H. Skinner, the solicitor general, pointed out that the lawsuit filed in federal court by Equality Arizona and others names only the state superintendent of public instruction and the state Board of Education as defendants. The challengers do not sue the state itself.

In this Wednesday, Sept. 12, 2018 photo, Kathy Hoffman, a public school speech therapist, is a Democratic candidate running for superintendent of public education, in Phoenix. Hoffman is running against three-term California congressman Frank Riggs, the founding president of an online charter school. (AP Photo/Ross D. Franklin)

 Kathy Hoffman (AP Photo/Ross D. Franklin)

Schools chief Kathy Hoffman already has made it clear she opposes the law, though spokesman Stefan Swiat said his boss has not yet met with her state-assigned attorney to formally decide a course of action.

And the state board is set to meet Monday to consider whether its members are interested in trying to keep the law on the books.

Skinner, whose job generally is to defend the state when it is sued, told House Speaker Rusty Bowers and Senate President Karen Fann he is informing them of the decision, made by Brnovich, to give them “adequate time and information to make an informed decision” on whether the Legislature wants to get involved in the case and defend the law itself.

In the letter, Skinner said that the decision by Brnovich as his boss not to get involved does not keep the Legislature from intervening in the case “to present its own unique views and defenses” of the law.

But it is unlikely to get that far.

Fann press aide Mike Philipsen said his boss his asking the Senate’s own attorneys whether it makes sense to try to defend the law.

Bowers, for his part, apparently has made that decision already.

“Details are still being negotiated,” said spokesman Matt Specht. “But Speaker Bowers expects the Legislature to revise current law to address the issues raised in the lawsuit.”

At the heart of the fight are state laws that deal with teaching students about AIDS and HIV.

One section prohibits instruction that “promotes a homosexual lifestyle” or “portrays homosexuality as a positive alternative life-style.” Challengers say that is unconstitutional because it singles out a class of  students – those who are gay – for negative treatment based on their sexual orientation.

Potentially more problematic is another provision which forbids teachers from saying that there are  safe methods of homosexual sex, yet have no such restriction on teaching heterosexual safe sex. The lawsuit filed last month in federal court says that deprives LGBTQ students of equal education opportunities.

Brnovich spokesman Ryan Anderson said that his boss has not reached a firm conclusion on whether the challenged sections are legally defensible. But he said there is reason to believe that the statute “is probably susceptible to being struck down by the 9th Circuit Court of Appeals.”

Anderson sidestepped questions of what it would take to fix the law.

“We don’t make policy,” he said. Anderson said it is up to lawmakers to decide what is best.

“That may include repealing portions of the statute or replacing portions of the statute with language that is scientifically based and is acceptable to all parties,” he said.

That issue of “scientifically based” addresses not just what is in the federal court lawsuit. It also has been one of the talking points of foes of the law who said it is not just bad advice but inaccurate advice to say that there is no safe method of homosexual sex.

Sen. Martin Quezada, D-Glendale, has been trying to repeal the law for years. But he has yet to get a hearing on his proposal.

But the issue took on new life in February when Hoffman, giving her first State of Education speech since taking office the month before, told lawmakers that there needs to be greater emphasis on “creating an inclusive environment that supports children from all backgrounds.” That, she said, means at the outset recognizing that students come from all types of families, even those with two moms or two dads.

And Hoffman said educators also must consider students who are more likely to be bullied and harassed. She said that includes students in the LGBTQ community.

“A simple step we can take to help reduce discrimination and bullying for these students is to repeal the ‘no promo homo’ law,” Hoffman said, saying it “contributes to an unsafe school environment.”

And the schools chief said the policy enshrined in the legislation “is not just outdated, it has always been harmful and wrong.”

That was followed a month later by the lawsuit filed in federal court on behalf of Equality Arizona and an unnamed Tucson student who is gay. The legal papers say the law, adopted nearly three decades ago, “facially discriminates against non-heterosexual students on the basis of sexual orientation and places them in an expressly disfavored class.”

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