As the assault on diversity, equity, and inclusion programs at hundreds of colleges across the country continues, conservative forces trying to stamp out the programs in at least four states have proposed turning to higher-education employees and the general public to act as regulators of race- and sex-conscious efforts to root out discrimination on campus.
Of the 17 states that have so far introduced bills to ban or limit diversity, equity, and inclusion, or DEI programs, Arizona, Arkansas, Iowa, and Texas have gone as far as allowing people to sue schools that they think violate the proposed laws.
Arizona’s bill, SB 1694, would ban universities from adopting policies “to influence the composition of its work force based on race, sex or color,” and prohibit the adoption or promotion of ideas including unconscious or implicit bias, cultural appropriation, allyship, structural racism, and disparate impact among other prohibited stances. It also allows employees to sue the university for making DEI training mandatory.
Arkansas’ bill would end explicit efforts to recruit employees of color in public colleges and allow those who believe they have been denied employment because of their identity to sue the college.
In Iowa, SF 81 prohibits training related to “racism/scapegoating” and allows students’ parents and faculty members to sue institutions that offer such training.
A similar bill moved out of the State Senate education committee in Texas on Wednesday. The Lone Star state’s bill allows anyone to seek an injunction against a public university that supports or sponsors diversity, equity, and inclusion activities beyond what is required by the 14th Amendment or statements by the university endorsing lifestyle, racial, or religious identification.
In effect, the series of bills would deputize regular citizens in the fight against DEI.
The legal maneuver is similar to Texas’ 2021 law that allows anyone, even those not living in Texas, to sue an abortion provider who violates the state’s abortion ban.
The bill moving through statehouses in Arizona, Arkansas, Iowa, and Texas borrow language from a model bill drafted by the Manhattan Institute, a conservative think tank. Ilya Shapiro, a senior fellow at the think tank who helped design the model legislation, said they were intentional in broadening who could take the colleges to court for violating the bans.
“Courts are often stingy regarding the standing that plaintiffs have to bring civil-rights cases, so we thought we would ensure that plenty of institutional stakeholders had standing to sue over universities’ violations of this law,” Shapiro said.
Critics of the proposed bills worry that making it easier to sue colleges will open higher education to a raft of lawsuits and have a chilling effect on administrators’ efforts to address rampant mistreatment of minorities, women, and LGBTQ students and faculty on campuses.
The first line of defense against a hostile environment, they argue, won’t exist.
“The law would preclude you from taking proactive efforts to eliminate racial discrimination through DEI,” said Derek Black, a professor of law at the University of South Carolina.
Conservative lawmakers have questioned whether the offices, trainings, and programs designed to foster a more inclusive campus culture and promote a more demographically diverse student body and faculty are really laboratories for liberal indoctrination. Are DEI offices making campuses more racially inclusive or, as some conservatives argue, fomenting racial hostilities on campus through close examination of racist oppression that some critics claim scapegoat white students?
“They are not so much mediating or creating a welcoming environment; they are creating more racial tension,” said Shapiro.
DEI offices were created to assist with conversations on race, gender, and sexual orientation when those talks become confrontational, or when a climate emerges on campus where marginalized groups don’t feel safe or welcome. With the current conservative backlash, how will colleges carve out room for those conversations?
“What you do with this is create a great deal of uncertainty,” Black said. Colleges will still have to comply with Title VI of the 1964 Civil Rights Act, he pointed out, which protects college access for minority students, and Title IX of the Education Amendments of 1972, which protects equal access to higher education for women.
However, colleges usually don’t want to wait until campus tensions run so hot as to need intervention from a civil-rights compliance office. DEI has been seen as an intermediate step to address conflicts around race, gender, or sexual orientation before they boil over.
“The threshold for a racially hostile environment that makes a university liable is reasonably high, and it’s high because it’s about enforcing student conduct,” Black said. “But the university wants to create an environment where it wants to address behaviors before they fester.”
The Foundation for Individual Rights and Expression sits in a unique position in the DEI battle, as neither an advocate for its abolition nor a staunch supporter of its practices. FIRE is worried that DEI efforts can silence opposing views within the faculty and on campus, which it views as a violation of free speech. But it also sees the broad bans on DEI work that’s pursued by conservatives as an attack on the free-speech rights of students, faculty, and administrators who want to engage in conversations about identity and race.
The group has sued Florida over the Stop Woke Act. FIRE has not taken a position on the model legislation, but it is concerned that university diversity statements, a practice where a candidate for a job or promotion is asked how they have contributed to diversity in their academic careers, hold the potential to act like a screen for faculty seeking employment or tenure. Some academics have called the statements “an ideological litmus test that violates academic freedom.” Lawmakers in seven states are considering bans on diversity statements. Meanwhile, the University of North Carolina and Texas A&M and Texas State university systems no longer use diversity statements in hiring or promotion decisions.
“The government can decide what position it’s going to take. A university is an agent of the government when it’s a public institution,” said Joe Cohn, legislative and policy director at FIRE. “But it can’t tell faculty members or students what they can say because they are not creatures of the state.”
“We are very concerned that a lot of universities are using questions during interviews when they are hiring a faculty member or when they are deciding on tenure where they are evaluating their purity to see whether they match the philosophy of the university. It serves as an ideological screen to filter out voices who feel differently,” Cohn said.
Many universities have argued that the diversity statement is but one part of an application that is used to help paint a more complete picture of a candidate and often can highlight aspects of their career that often go unnoticed otherwise.
Cohn understands the questions critics have about DEI. There is some concern that the climate on college campuses has become absolutist, a place where one either agrees with the consensus or is ostracized, according to Cohn.
“There is a good reason for the government to look at DEI, but they need to do it carefully, as not to infringe on the free speech of other students and faculty,” Cohn said.
Cohn sees a place for DEI on campus.
“When someone engages in offensive and maybe racist and sexist speech, public institutions cannot penalize them. But it doesn’t mean they can’t try to hold or promote dialogue,” he said. “It becomes trickier when they require these conversations be held, and even trickier when they require agreement.”
The bills in Arizona, Arkansas, and Iowa are still being debated in their state’s respective education committees, but the Texas legislation is ready to be presented to the full legislature. Shapiro remains optimistic that these bills will pass and empower regular citizens.
“This also puts the schools on notice that lots of people are watching what they’re doing, so they shouldn’t try to be cute or otherwise try to end-run around actions this legislation would prohibit,” Shapiro said.
