An Educated Guess: Anti-DEI Legislation Raises Legal and Practical Concerns for Colleges and Universities

On May 15, 2023, Florida Governor Ron DeSantis signed legislation that impedes Diversity, Equity, and Inclusion (DEI) programs at public higher education institutions throughout the state. Florida’s legislation is among a series of recent efforts by multiple states to similarly limit DEI in higher education, an emerging national trend described below. With significant implications for curricular and extracurricular life, colleges and universities must remain closely attuned to these developments.

DEI Restrictions

Although precise definitions vary, DEI generally represents the philosophy whereby organizations commit themselves to initiatives that increase representation of those with identities that have previously been marginalized. Twenty-one states have recently considered or enacted legislation that restricts DEI programs at public colleges and universities. The Chronicle of Higher Education is tracking these legislative developments.

There are five main ways that the new legislation targets diversity efforts in higher education: (1) restricting DEI offices, (2) banning mandatory DEI training of employees and students, (3) prohibiting the use of diversity statements in hiring, (4) restricting classroom teaching about issues of diversity, and (5) impeding the implementation of identity-based preferences in admissions, promotion, employment, and tenure decisions. Although bills in 11 states were vetoed, tabled, or did not pass,[1] others are at more advanced stages.[2] Four bills have been enacted in two states, Florida, and Texas, which are exemplars of this genre of legislation.

The Sunshine State

Florida has become a focal point for DEI legislation. Gov. DeSantis has initiated and signed multiple anti-DEI restrictions into law. One law restricts DEI programs at public higher education institutions in Florida by prohibiting them from using state or federal funds to “promote, support, or maintain” DEI programs. Further, the law restricts how race and gender may be taught by providing that curricula may not be “based on theories that systemic racism, sexism, oppression, or privileges are inherent in the institutions of the United States and were created to maintain social, political, or economic inequities.”

A second law restricts DEI by prohibiting public higher education institutions from preferential consideration based on race or ethnicity when deciding whether to employ, admit, or promote an individual. Further, the law prohibits institutions from mandating or requesting that individuals complete a “political loyalty test” as a requirement for admission, promotion, or employment. The law defines political loyalty tests as a measure of a person’s partisan, political, or ideological beliefs — language apparently aimed at diversity statements in employment and admissions applications.

Beyond these new laws, Gov. DeSantis also drew headlines for his recent appointment of six new trustees at the New College of Florida, a public liberal arts college. These new trustees are expected to support the anti-DEI plans at New College. (Some may argue that the selection of trustees with particular political viewpoints could itself violate the new prohibition on “political loyalty tests”).

On May 24, 2023, Gov. DeSantis announced that he is running for president in 2024. His candidacy raises the possibility that anti-DEI initiatives in higher education, like those he has advocated in Florida, will become a large part of his platform, and thus receive greater national attention in the months ahead.

The Lone Star State

The legislature in Texas is currently considering Senate Bill 17, sponsored by Republican State Senator Brandon Creighton. That bill would limit DEI efforts in higher education institutions in several ways. For example, the bill would ban on-campus DEI offices and DEI-focused employees, as well as restrict mandatory DEI training for students and staff. The bill also requires that hiring and employment practices be both color-blind and sex-neutral. On May 28, 2023, Senate Bill 17 passed in both chambers of the Texas legislature and awaits signature from Gov. Greg Abbott.

Other State Efforts

Though anti-DEI legislation has been introduced, but failed to pass, in 11 states, similar legislation remains pending elsewhere.

A bill in Tennessee, which prohibits mandatory DEI training in higher education institutions, has received final legislative approval. In North Dakota, Senate Bill 2247 uses the language “divisive concept,” and prohibits mandatory diversity training as well as diversity statements when considering admission, employment, promotion, or tenure. The legislature in Ohio is considering a bill that encompasses all categories of anti-DEI legislation, and would halt state funding to colleges that require DEI training. Additionally, it would ban diversity statements in practices of hiring, promotion, or admissions and restrict DEI offices at higher education institutions.

Significant Legal and Practical Concerns

Anti-DEI legislation creates a host of issues for colleges and universities. A few considerations are outlined below.

First Amendment

The legislation creates significant First Amendment concerns that could draw legal challenges. On one hand, a university’s commitment to DEI may represent that institution’s right to practice freedom of speech by expressing the institution’s commitment to DEI in a mission statement. Individual faculty and students are also likely to claim that the law impinges on their freedom of speech by restricting what they can communicate. On the other hand, advocates of the legislation take the position that mandatory diversity statements violate the First Amendment by forcing a particular type of “pro-DEI” speech. This position is consistent with arguments advanced in a May 2023 lawsuit against the University of California at Santa Cruz by an individual who applied to be a psychology professor. The applicant claimed that mandatory diversity statements in employment applications are used to exclude individuals lacking certain socio-political viewpoints. Describing such statements as “loyalty oaths,” he alleged that an insistence on “stringent ideological requirements” violates the First Amendment. Similar arguments will be advanced to support the anti-DEI legislation, which generally seeks to prohibit the use of mandatory “pro-DEI” statements.

Vagueness and Impracticality

The legislation’s vagueness could have uncertain effects on both teaching and scholarship. What does it mean to prohibit professors from teaching about “systemic racism, sexism, oppression, or privileges,” as Florida attempts to do? Even teaching basic American history courses would be challenging under the anti-DEI legislation. For example, how could a history professor teach Brown v. Board of Education, the seminal 1954 US Supreme Court opinion that held that separate but equal educational facilities for racial minorities violate the Equal Protection Clause of the Fourteenth Amendment? It would be hard to discuss the decision itself, or its social and political aftermath, without discussing the “systemic racism” or “inequities” that Florida’s legislation explicitly prohibits (especially since the decision itself recounts historical inequities facing African Americans).

What about teaching the Nineteenth Amendment to the US Constitution that guaranteed a right to vote for women in 1920, or the debates over the Equal Rights Amendment in the 1970s? Again, it would be difficult for a professor to explain the context of these events without addressing the suffragette movement or the related social and political turbulence — all arguably impermissible under the new laws.

Because many anti-DEI laws are vague and because they may become impractical for day-to-day teaching and research, colleges will struggle to comply.

Potential Campus Unrest and Applicant Concerns

Anti-DEI legislation may impact life on campus, as well as future institution enrollment. As this legislation is enacted, students who oppose such restrictions may respond with protests. For example, after the legislature passed SB 266 in Florida, students gathered in vocal opposition to the law. Further, students and faculty who remain committed to DEI may cut ties with public institutions where DEI efforts are curtailed. A statement of purpose on behalf of former college and university presidents, organized by PEN America, an influential pro-freedom of expression nonprofit, sharply opposes legislative developments limiting DEI.

These conflicts may affect enrollment, discouraging DEI-conscious applicants from applying to institutions in affected states. Additionally, student life may suffer if DEI resources and offices are eliminated. These cuts could make some applicants (especially minority applicants) feel less welcome on campus.

Such challenges could compound the enrollment headwinds already facing higher education. Many schools are already struggling to recruit students after the pandemic and amidst a general demographic decline in college-age individuals. The new laws only complicate the landscape.

Interplay Between State and Federal Funding

In addition to anti-DEI legislation directly restricting public institutions, there is also concern that the new laws may affect private institutions that receive public monies. Both public and private colleges and universities typically receive federal funding (particularly for research and tuition), along with federal tax-exempt status. Thus, even private colleges are likely to closely monitor these legislative developments.

Likely Escalating Anti-DEI Efforts

State legislatures are likely to consider anti-DEI legislation at increasing frequency, especially with the approaching national election. Traditionally, prospective students and families care most about issues such as affordability and academic quality. But now, many colleges and universities will be forced to contend with political conflicts on social justice issues as well as the resulting internal tensions on campus.

For questions on preparing for DEI-related legislation, contact a member of our Higher Education team.

[1] Arizona, Arkansas, Georgia, Indiana, Iowa, Kansas, Missouri, Montana, Oklahoma, Utah, and West Virginia.

[2] Alabama, Louisiana, North Carolina, North Dakota, Ohio, Oregon, and South Carolina.


Continue Reading