Will Bans on Diversity Offices Pass Legal Muster?
Conservative politicians across the country are busy working to remove the infrastructure and staffing at public colleges to improve diversity, equity, and inclusion. In Florida, a bill introduced this month would stop public-college activities that “espouse diversity, equity, and inclusion or critical race theory” and ban the use of diversity statements in hiring and promotions. In West Virginia, another bill introduced this month would ban public colleges from engaging in diversity, equity, and inclusion activities, including mandatory diversity training or efforts to manipulate or influence “the composition of the faculty or student body with reference to race, sex, color, or ethnicity.” (It does say that campuses may ensure “colorblind and sex-neutral admissions and hiring in accordance with state and federal anti-discrimination laws.”)
And in Texas, a bill introduced in December would prohibit the funding, promotion, sponsorship, or support of offices that support the goals of diversity, equity, and inclusion.
But will these various efforts, if enacted, survive the legal challenges that could follow?
Derek W. Black, a professor of law at the University of South Carolina, said that eliminating diversity, equity, and inclusion offices could make it more difficult for public colleges to comply with federal laws prohibiting race and sex discrimination in federally funded programs. States have an obligation to prevent and remedy racially and sexually hostile environments, Black said, so eliminating diversity offices at public colleges could remove a key tool for achieving those goals. That, in turn, could make it more difficult for institutions to defend themselves against future claims of discrimination, Black said. And if a university created a diversity, equity, and inclusion office in response to a past complaint, eliminating the office could put the institution in breach of a previous agreement to remedy the problem.
Black said that another legal question is: Who in a state has ultimate authority over the public colleges? In a few states, a board of education, for example, may have authority over certain aspects of higher education, rather than a state legislature.
Ilya Shapiro, a senior fellow at the Manhattan Institute, who was among the authors of model state legislation unveiled recently that would target several kinds of diversity, equity, and inclusion efforts at public colleges, said that the model legislation does not infringe on academic freedom because it does not affect what professors can say in classrooms, for example. “We are not addressing at all what curriculum, what professors are teaching, what anyone says inside the classroom,” Shapiro said. “This is about the extra educational part, the bureaucrats who are enforcing this kind of ideology, that I think is a detriment to the traditional mission of higher education to educate and seek truth and discover knowledge.”
Not everyone agrees with that interpretation. Sarah Hinger, a staff attorney with the American Civil Liberties Union’s Racial Justice Program, said that targeted efforts to exclude programs that fall under diversity, equity, and inclusion are “an effort to constrain the types of conversations and ideas and dialogues that happen on campuses.”
The U.S. Department of Education recently published a fact sheet defending diversity, equity, and inclusion training and other activities, explaining that they are generally consistent with the Title VI of Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in the programs of recipients of federal funding. According to the fact sheet, Title VI does not categorically prohibit activities such as diversity, equity, and inclusion training, instruction on the impact of racism, and cultural competency training. The fact sheet notes that colleges have adopted diversity, equity, and inclusion activities to remedy potential discrimination and foster a more positive and inclusive environment, for example.
Hinger said that diversity, equity, and inclusion programs “were established, in large part, to address the historical exclusion and the ongoing marginalization of students of color and others, and out of a recognition that it was necessary to provide these types of programs in order for students to be adequately included and involved in campus life.” The targeted removal of diversity, equity, and inclusion efforts at public colleges would raise concerns, Hinger said, and send “a really clear message about who belongs.”
Likewise, Antonio L. Ingram II, an assistant counsel at the NAACP Legal Defense and Educational Fund, said diversity, equity, and inclusion efforts came about because many colleges “engaged in state-sanctioned discrimination on the basis of race or gender in their histories.” Diversity, equity, and inclusion activities are colleges’ attempts to creative inclusive practices that create belonging for all students.
Limiting those efforts, Ingram said, is “trying to hamstring institutions to remedy past harms” and create more inclusive colleges.
Perhaps not surprisingly, conservative supporters of the new measures say they are designed to pass legal muster.
Shapiro said that while the legislation will have to be tailored to individual states, he does not anticipate any potential challenges in terms of federal law.
The model legislation specifically exempts offices staffed by lawyers with the sole mission of ensuring legal compliance with federal laws, including Title IX, the Americans With Disabilities Act, the Age Discrimination in Employment Act, and the Civil Rights Act.
“This is not pushing back on that at all.” Instead, he said, the model legislation is intended to address diversity administrators’ “indoctrination function.”
—Adrienne
