Legislation aiming to forbid diversity, equity and inclusion policies across West Virginia government hit a chaotic and confusion conclusion in the last hours of the regular legislative session.
The events underscore the determination of West Virginia officials who wanted to push the policy ban ahead, as well as the resolve of a few lawmakers trying to block the bill.
Delegate Anitra Hamilton, the only Black woman in the Legislature, argued passionately against the bill on the House floor on Saturday evening, saying it sends the wrong message. By Monday, as the dust cleared, her view had not changed.
“This bill is divisive and harmful, but clearly what the governor and WVGOP want,” said Hamilton, D-Monongalia.
“Their lack of acceptance of DEI and its principles will continue to produce the same do-nothing legislative sessions that don’t support the transformative and economically stable future the people of West Virginia deserve.”
Diversity, equity and inclusion bill
Gov. Patrick Morrisey has called for ending DEI initiatives across state government. The acronym stands for diversity, equity and inclusion.
It’s a set of policies in business, government and academia aimed at promoting the fair treatment and full participation of all people, particularly groups who have historically been underrepresented or subject to discrimination based on identity or disability.
Social conservatives have taken aim at the policies as a kind of reverse discrimination.
“You know, I think it’s important to not discriminate against individuals when it comes to employment based on their sexual preference, their color skin, their religions, all those things,” said state Senator Eric Tarr, R-Putnam, speaking Monday on MetroNews Midday
“And I think that the DEI initiative causes that discrimination. And so what this does, it gets that kind of discrimination out of state government and positions are given based on merit.”
Senate Bill 474 aims to eliminate initiatives related to diversity, equity, and inclusion from all departments, divisions, agencies, boards, public primary and secondary schools, and institutions of higher education.
This bill includes the executive branch, primary and secondary schools, and higher education institutions. The bill forbids establishing or maintaining an office or division meant to promote diversity, equity and inclusion. And it prohibits directing an employee or contracted third party to promote diversity, equity and inclusion.
It would not allow requiring any person to provide a diversity, equity, and inclusion statement or give preferential consideration to any person based on the provision of a diversity, equity, and inclusion statement.
The bill calls for official neutrality on associated terms such as unconscious or implicit bias, cultural appropriation, identity group allyship, micro aggressions, group marginalization, systemic oppression, social justice, intersectionality, neo-pronouns, racial privilege and critical race theory.
“This bill carves out all other entities of DEI and forces the issue to race,” Hamilton said on Monday. “The WVGOP has made it clear that they are not willing to prohibit discrimination, and this bill supports that.”
Race against the clock
Senators first passed the bill on March 26. This past Saturday, delegates took up the bill for passage with just hours remaining, debated amendments for a couple of hours, adopted a couple relating to protections under the West Virginia Human Rights Act, rejected many other amendments and finally voted for final passage at 10:45 p.m.
Senators would need to agree to changes made in the House for the legislation to be complete by the conclusion of the session at midnight.
That’s when the chaos hit.
At 11:15 p.m., the Senate took an official message from the House that the bill had passed that chamber. Senate Education Chairwoman Amy Nichole Grady, R-Monongalia, rose and — at first — offered a motion to concur with changes made by delegates.
Normally, that would have been the straightest shot at swiftly finishing work on the bill.
However, Senator Joey Garcia, D-Marion, had 15 of his own amendments lined up and ready to chew up time.
There was a pause and then a gathering at the front of the chamber. More than five minutes elapsed. During that time, Garcia approached Senate President Randy Smith, R-Preston, to talk.
“I remember going up to the podium and telling Randy, ‘Hey, you guys have other bills, other priorities. Don’t do this. We’re going to filibuster,’” Garcia said Monday on MetroNews’ Talkline.
When the delay ended at 11:21, Grady rose again and withdrew her motion to concur with the changes the House had made.
At 11:30, with half an hour remaining, the matter flared up again.
Senator Eric Tarr is a veteran of prior years’ maneuvers on last-second controversial legislation, including a 2022 attempt to pass a bill called “The Anti-Racism Act,” which would have prohibited compelling student adherence to concepts like one race being inherently morally or intellectually superior to another.
A near-midnight attempt to pass the bill that year, with Tarr making quick motions to limit debate, missed the deadline by seconds.
This time, with the clock ticking on the DEI bill, Tarr rose with an alternate path to passage. He asked senators to suspend a legislative provision called Joint Rule 3, which outlines procedures for handling disagreements between the Senate and House of Delegates. Following that, he proposed concurring and passing the DEI bill.
Confusion ensued.
“I don’t understand what the motion is,” said Senate Minority Leader Mike Woelfel, D-Cabell. “I’d like the senator to yield and watch what we’re doing. People are watching us all around the state, and I’d like to know what’s going on.”
Smith, from the podium, ruled the motion to suspend Joint Rule 3 is not debatable. Woefel talked a little bit more but was called out of order.
Senators, on a voice vote, agreed with Tarr. At 11:33 they then took a more formal vote to pass the bill. Thirty-one Republicans voted yes, and the two Democrats voted no. Senators seem to have missed a step in the middle to concur with the House changes.
There was another long pause and some milling about before the Senate moved on to final consideration of yet another bill.
At 11:45, with fifteen minutes to go in the 60-day session, senators moved back into position and went at it one more time.
Tarr rose and, first, started backing out of the earlier process. His first motion was to reconsider the earlier vote. Then he attempted to call the question, which is a motion to end debate.
Woelfel rose and objected, “You can’t call the question on your own motion, senator. This is subject to discussion. We’ve got to go by the rules here.”
So, Majority Leader Patrick Martin rose to make the motion: “I move the previous question.”
Woelfel scowled and shook his head.
Senators then went ahead and voted to approve Tarr’s move to withdraw his earlier 11:30 motion. He seemed to mean backing off Joint Rule 3 and opting for a more traditional path to final passage although it’s not entirely clear from the words he wound up saying: “I move to withdraw my motion.”
Next, at 11:49, Tarr moved to concur with the House version of the bill. Majority Leader Martin then called the question again, shutting down debate.
Garcia rose to object. “I have amendments in the system to the concurrence, so those amendments need to be taken up.”
Senate President Smith responded, “Point not well taken. Previous question has been called.”
Senators voted 31-2 to agree to the House version.
At 11:51, as Garcia and Woelfel found their microphones disabled and tried to shout, the Senate moved to a vote on final passage. President Smith formally recognized Majority Leader Martin, who again called the question and end debate.
The final vote, at 11:52, was again 32-2.
“You know that the Democrats were using every procedural rule they had in order to go in and stop that bill, and we used the procedural rules to advance the bill,” Tarr said Monday on MetroNews’ Midday.
“So it’s just the way it is. You know, when you have a supermajority like we do, you can suspend the rules at pretty much any given time — and just to make sure that we got it passed, we ended up passing that bill twice.”
Bottom line, the landing page for the bill now says “completed legislative action.”
Aftermath
Garcia was incredulous.
“The Senate Republicans broke their own rules to try to pass a bill that their party thought was the biggest priority,” he said.
“The wanted to pass the governor’s and the Senate Republicans DEI bill, and they were going to do anything and everything and use every dirty trick in the book to try to make it happen.”
He believes, though, that it’s likely the bill will now be signed into law.
“I don’t think it passed, but they can say that it passed. And I see no reason why Governor Morrisey — this is his bill, this is his priority — why he wouldn’t sign into law.
“I think the only option now is litigation. And I hope that somewhere out there, someone who’s affected by this diversity, equity and inclusion bill says this isn’t right. And I think we’ve served you up on a platter, an argument for striking this law down.”
On Monday, Delegate Hamilton was still reflecting on everything that had occurred. Speaking emotionally on the House floor on the final night, she had told her colleagues that diversity, equity and inclusion initiatives are not about giving people special breaks; instead, she said they’re about opening windows for opportunity.
Over the past couple of days, she spent some time with the legislative rules, trying to make sense out of the step-by-step of how debate was shut down.
“I fid it shameful to circumvent the process. To pull these stunts and everyone question if it’s legal or against our rules or Constitution shows you the lengths they will go for certain types of bills, particularly ones that are discriminatory and divisive,” she said Monday.
“It’s awful.”