DEI Legislation, Academic Freedom, and Free Expression: Where to Go from Here?

Introduction

In over thirty states across the country, state legislatures are seeking to regulate diversity, equity, and inclusion (DEI) initiatives on college campuses. Likewise, boards of regents, the bodies that govern public university systems, are taking action. Regulations targeting DEI initiatives can be grouped into several categories: restricting classroom teaching about DEI; prohibiting the use of diversity statements in appointments, promotions, and tenure (APT); banning mandatory DEI training; and restricting DEI offices.

Some complain that these regulations infringe on academic freedom and free expression on college campuses, while others claim that the DEI initiatives themselves constitute the threat. These regulations are hardly the first time that governing bodies’ actions have touched free expression and academic freedom. During the last decade, state governing bodies have banned free speech zones at schools, regulated antisemitic speech, clarified harassment policies, and more. What is new is the bodies’ focus on DEI.

The Bipartisan Policy Center’s Academic Leaders Task Force argues that it is possible for college administrators to harmonize DEI, academic freedom, and free expression, stating in its report, Campus Free Expression: A New Roadmap: “Addressing the perceived tension between diversity, equity, inclusion, and free expression is an essential rhetorical and strategic task for campus leaders.”

That said, commitments to DEI and to free expression and academic freedom frequently are perceived to conflict. That perception may explain, in part, the public sentiment that colleges are limiting academic freedom and free expression: just 36% of Americans express confidence in higher education, and 79% of Republicans and Republican-leaning Independents (along with 17% of Democrats and Democratic-leaning Independents) attribute their lack of confidence to “professors bringing their political and social views into the classroom.” Colleges can respond to these concerns with campus surveys of students and their views about whether they feel politically pressured by their professors. Publicly addressing the perceived conflict between DEI, academic freedom, and free expression could be another opportunity to rebuild public confidence.

In response to new regulations on DEI initiatives, colleges and universities have turned to an array of new options, including assessing the scope of their DEI policies, working toward transparent relationships with legislators and boards of regents, and proactively adjusting their practices to acknowledge academic freedom and free expression concerns.

I. Restricting Classroom Teaching About DEI

States seeking to regulate discussions of race and sex on college and university campuses include Alabama, Arkansas, Mississippi, Missouri, North Dakota, Oregon, South Carolina, Texas, West Virginia, and Wyoming. National attention has focused on Florida’s regulations, where Governor Ron DeSantis (R-FL) signed legislation that prohibited general education courses at public universities from “distort[ing] significant historical events or includ[ing] a curriculum that teaches identity politics.”

Gov. DeSantis stated that the legislation will end DEI initiatives which “promote dangerous political and social activism,” including “theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States.”

On the other hand, critics say the Florida bill infringes on academic freedom, the right of faculty to research, teach, and speak freely without fearing legal or professional consequences. Andrew Gothard, president of the United Faculty of Florida, said: “You can move systemically through this bill and look at the way that it is prioritizing viewpoint discrimination.” Some argue further that the bill violates the First Amendment. Students and faculty have protested the Florida legislation, and staff members at Florida universities report confusion about how to proceed without violating the law.

II. Prohibiting the Use of Diversity Statements in Appointments, Promotions, and Tenure (APT)

Diversity statements typically require that candidates seeking appointments, promotions, or tenure (APT) at colleges and universities express a commitment to DEI priorities. The practice began in the early 2000s with the University of California system and has since been adopted by schools including the University of Pennsylvania, the University of Illinois at Urbana-Champaign, and Purdue University

According to a 2022 survey, 50% of faculty members believe that mandatory diversity statements are a “justifiable requirement for a university job,” while 50%, including 90% of conservatives, consider the practice an “ideological litmus test that violates academic freedom.” Defenders of diversity statements argue that not asking candidates to explain their commitments to diversity “would be negligent.” On the other hand, critics include faculty from a range of fields, including medicine, mathematics, and law. One professor even sued the University of California at Santa Cruz in May 2023, complaining that he was compelled to “express agreement with specific socio-political ideas” to receive a high score on the school’s diversity hiring rubric.

State initiatives have embraced this criticism. In Ohio and Missouri, legislatures have considered banning mandatory diversity statements in hiring, and in March 2023, the Board of Governors of the University of North Carolina system prohibited “compelled speech” for all prospective students and staff.

Even without state bills or directives, some colleges have taken preemptive action. At Texas Tech University, after a Wall Street Journal op-ed accused the biology department of using DEI statements as “ideological litmus tests” in hiring, the university stated that it had been unaware of the practice, reversed the DEI statement requirement in the department, and “initiated a review of hiring procedures across all colleges and departments.” Jay Rothman, the president of the University of Wisconsin (UW) System, voluntarily eliminated mandatory diversity statements for job applicants in May 2023. Rothman said: “I would fully expect that in the context of interviews, that (DEI) and diversity would be discussed, and that’s fine, but it can be discussed in those one-on-one or group conversations where the nuances can come out.”

III. Banning Mandatory DEI Training

Many colleges and universities have also implemented mandatory DEI training. During DEI training, administrators, faculty, and students complete learning modules that “encourage people to be more aware and reflective about inequities and discrimination on an individual level.” This practice exists at private schools such as the University of Denver and Duke University and public universities including the University of Mississippi and George Mason University.

The implementation of DEI training frequently faces criticism. At Lake Washington Institute of Technology in 2021, tenured professor Elisa Parrett protested a mandatory “upcoming diversity training in which faculty and staff would be divided into white and nonwhite ‘caucuses.’” Journalist Jesse Singal condemns DEI training for “blam[ing] dominant groups for D.E.I. problems” without achieving its stated goals. Others reject DEI goals: New College of Florida Trustee Christopher F. Rufo says that DEI training is among a set of “political programs that use taxpayer resources to advance a specific partisan orthodoxy.”

Recently, states including Texas, North Dakota, and Tennessee have banned mandatory DEI training.

To avoid conflicts between DEI training, free speech, and academic freedom, the University of Iowa has incorporated a free speech program into its DEI training. Others suggest making DEI training voluntary, or broadly articulating the benefits of diversity without singling out categories of race and ethnicity.

IV. Restricting DEI Offices

A great many campuses have established DEI offices and appointed chief diversity officers and other staff to promote “diversity, equity, and inclusion [as] key priorities across all departments and operations.”

A higher education reporter captures the polarized perceptions of DEI offices, writing that the offices say they aspire to create inclusive environments for underrepresented students and faculty and “ensure that universities don’t violate federal discrimination laws.” Critics, she says, characterize DEI programs as pushing “left-wing ideology” and prioritizing “social justice over merit and achievement.”

Governing bodies have taken steps to restrict or eliminate DEI offices. While legislatures, governors, and trustees have the prerogative to set broad priorities for colleges, some of their actions have raised questions about schools’ academic self-governance.

In May 2023, Florida enacted a law “banning the state’s public colleges and universities from spending money on diversity, equity and inclusion programs.” Lawmakers in Texas did the same. In South Dakota, the mandate came from the system’s Board of Regents, which required that all universities replace their “diversity centers” with “Opportunity Centers.” In response to these measures, New College of Florida, Iowa’s three public universities, and the University of South Dakota have closed their DEI offices.

Some schools have tried to rededicate DEI staff and offices. For example, in June 2023, even though Arkansas had not yet passed legislation, the University of Arkansas dissolved its DEI division but “retained and reallocated…the DEI office’s staff and resources” to other offices. Mirroring the University of South Dakota’s shift from “diversity centers” to “Opportunity Centers,” schools such as Ozarks Technical Community College have voluntarily rebranded their DEI offices to welcome backgrounds of many kinds; Missouri State University is considering the same. It remains to be seen whether some governing bodies will see these steps as window dressing or substantive responses to free expression concerns.

Conclusion

As state regulations raise new questions about conflicts between DEI and expressive freedoms, college administrators have adopted a range of responses, and should seek to proactively engage on these issues. A robust campus culture requires a respectful, diverse, and inclusive culture that encourages robust intellectual exchange, but harmonizing free expression and academic freedom commitments with diversity, equity, and inclusion commitments remains a work-in-progress for the higher education community.