DEI in higher ed: When it’s constitutional and when it’s not

Regardless of where you stand on “diversity, equity, and inclusion,” or DEI, on college campuses, it’s clear that it’s a contentious issue. In recent years, there have been many efforts to either enshrine or eliminate DEI in school admissions, hiring, curricula, and more — and that’s when things can get hairy from a free speech standpoint.

Universities have a right to define and adopt institutional values aimed at becoming more successful institutions of higher learning. However, there’s a risk of going too far in how those values are applied, which can quickly lead to free speech and academic freedom violations on campus. Efforts to combat these excesses can also threaten free expression and free inquiry. What’s more, in addition to being a set of ideas or practices, DEI is also big business — and there are times where the interests of that business do not align with the mission of higher education.

In any case, FIRE will always defend First Amendment principles.

So how do we know when DEI becomes a campus free speech problem? In this explainer, we’ll cover when, why, and how DEI — and efforts to counter it — can compromise free expression and academic freedom in higher education.

‘Diversity,’ ‘equity,’ and ‘inclusion’ versus ‘DEI’

The terms “diversity,” “equity,” and “inclusion,” at least as they are commonly defined and understood, generally stand for values of tolerance, fair treatment, and pluralism that most Americans share and wish to uphold.  

Many American colleges and universities explicitly endorse these values in their commitment to DEI. Harvard, for instance, notes that its emphasis on diversity “is rooted in our fundamental belief that engaging with unfamiliar ideas, perspectives, cultures, and people creates the conditions for dramatic and meaningful growth.”

So why all the controversy?

Orthodoxies of any kind run afoul of a university’s mission of free inquiry and open discourse — and when enforced by campus administrators, the orthodoxy created by DEI clearly threatens free speech and academic freedom.

One answer is that these terms are often defined differently within academia and in DEI programs. For example, while “equity” may literally mean “freedom from bias or favoritism,” many applications of the term in DEI contexts emphasize “equality of outcome” as its stated goal — which can easily require an insistence on bias and favoritism to achieve. This kind of discrepancy results not only in myriad miscommunications and misconceptions that plague  the larger discourse around DEI, but also in wildly different approaches between that of DEI programs and administrators, and people working off of the common definitions of “diversity,” “equity,” and “inclusion.”

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Another problem is that, beyond being a mere abbreviation for those three terms, “DEI” is also the blanket label for a body of thought that includes a much larger collection of ideas, research, scholarship, practices, and proposals — including “anti-racism,” “intersectionality,” “critical race theory” and more. In our institutions of higher education, that larger constellation of concepts can grow into an ideological orthodoxy that affects everything from faculty hiring and tenure to campus programs and policies.

Orthodoxies of any kind run afoul of a university’s mission of free inquiry and open discourse — and when enforced by campus administrators, the orthodoxy created by DEI clearly threatens free speech and academic freedom.

This broader version of DEI is what we will focus on here.

The impact of DEI administrative bureaucracy

According to an analysis by The College Fix, “Harvard ​​University employs about 1,352 full-time administrators for every 1,000 undergraduate students.”

If you find this student-to-admin ratio strange, it’ll probably shock you to learn that it’s the norm across the country. A 2023 article by Forbes notes that college campuses are hiring more and more administrators every year — which raises the question that Harvard’s own student newspaper has asked: “What do they all do?”

Unfortunately, they don’t tend to protect free speech on campus. FIRE has argued numerous times that administrative bloat is a real and consistent threat to free expression in higher education. And the particular combination of administrative bureaucracy and ideological orthodoxy dictated by DEI tends to result in free speech and academic freedom violations for both students and faculty.

For example:

• At the University of Central Florida, tenured professor Charles Negy was investigated and threatened with termination by DEI administrators over offensive tweets. 
• At Yale, a law student was summoned to meetings, pressured to apologize, and recommended to take bias training by the law school’s Associate Dean of Student Affairs and Director of Diversity, Equity & Inclusion for using the term “trap house” in a party invitation. 
• At Syracuse University, DEI administrators led the adoption of new policies that would hold bystanders responsible for “bias-related incidents” and “hate speech,” instructing students to report incidents either to the school’s Office of Equal Opportunity, Inclusion and Resolution Services or anonymously through its bias reporting policy.

These are just a few examples, but they illustrate the problem at hand. 

“When colleges act more like giant corporations and less like educational institutions, student and faculty rights suffer,” FIRE notes in its 10 common-sense reforms for colleges and universities. “Massive administrative bureaucracies lead to initiatives that undermine and distract from a college’s core mission and result in violations of free speech and academic freedom rights.”

When does DEI violate free speech rights?

FIRE only takes a position on DEI efforts (as well as responses to it) if they implicate free speech, academic freedom, or establish an orthodoxy in higher ed. The two worst ways it can do this is by either restricting speech or by compelling it.

There has been plenty of restrictive DEI-related speech policing on campus in the form of words you can’t say, opinions you can’t voice, and ideas you can’t engage with. But there are also clear incidents of administrators, in the name of DEI, dictating things you must say and ideas you must agree with on the threat of discipline, termination, or loss of professional opportunities. These pressures often come in the form of DEI statements, curricular assessments, DEI standards used for faculty hiring, promotion, and tenure, and more.

One of the clearest cases of DEI compelling speech is the California Community Colleges system’s regulations for faculty — over which FIRE filed a lawsuit. Under these rules, the more-than-54,000 professors in the system must not only endorse “anti-racist” viewpoints but also actively incorporate these ideas into their curricula and classroom teaching. This includes requiring professors to “acknowledge” that “cultural and social identities are diverse, fluid, and intersectional,” and insisting that they develop “knowledge of the intersectionality of social identities and the multiple axes of oppression that people from different racial, ethnic, and other minoritized groups face.”

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The California Community Colleges’ regulations force professors within the California Community College system to espouse controversial views about “diversity, equity, and inclusion.”

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The California Community College regulations also warn professors not to “‘weaponize’ academic freedom” to “inflict curricular trauma” on students by exposing them to different perspectives, turning the very concept of intellectual diversity into a violation of the schools’ policies.

Whatever the intentions of administrators, these regulations effectively serve as political litmus tests, ensuring every step of the way that only those willing to conform to specific perspectives are able to acquire positions and advance in their careers. FIRE President Greg Lukianoff calls this system of ideological pressures and professional barriers “The Conformity Gauntlet.”

By dictating how and whether certain ideas must be discussed, the California Community Colleges regulations also compel faculty to endorse highly contested ideological perspectives in their classrooms. These policies violate faculty’s First Amendment rights, which is why FIRE sued on behalf of six professors who teach within the State Center Community College District.

Given how egregious these violations are, it’s no surprise that lawmakers would want to pass legislation to combat them. FIRE even drafted the Intellectual Freedom Protection Act as a model for how concerned elected officials can prohibit political litmus tests on campus without also violating the First Amendment. The state of Kansas has adopted FIRE’s model legislation, which will hopefully inspire others to follow its lead.

Unfortunately, other potential legislation neglects the First Amendment concerns — and as a result also begins to restrict speech in the name of the lawmakers’ own ideological perspectives.

When do anti-DEI efforts violate free speech rights?

When the government tries to regulate what ideas, concepts, and topics can be taught and talked about in college classrooms, they threaten the free speech rights of students and faculty — and there have been many attempts in recent years to do just that.

In 2023 alone, Alabama, Arkansas, Mississippi, Missouri, North Dakota, Oregon, South Carolina, Texas, West Virginia, and Wyoming introduced either legislation or executive orders seeking to ban so-called “divisive concepts” from classroom discussion and curricula in their colleges and universities. Unfortunately, these efforts also violate the free speech rights of students and faculty on campus — which is why FIRE opposes them.

With respect to DEI, FIRE’s position is simple: All ideas should be open to discussion and debate, and all topics should be freely taught.

There is a world of difference between legitimate efforts to reduce speech-chilling bureaucracy — such as MIT banning diversity statements in faculty hiring — and politically-motivated attempts to restrict what students or faculty can say. And there’s no better example of the latter than Florida’s “Stop WOKE Act.”

Officially called the “Individual Freedom Act,” the statute seeks to suppress certain perspectives and ideas on campus that the government deems inappropriate. This includes discussions related to racial or sex-based bias, whether values such as “merit” or “colorblindness” are racist, and whether certain groups experience “privilege” on the basis of their sex or skin color.

The Stop WOKE Act’s vague language and overbroad restrictions would require faculty to censor guest speakers and avoid even the mere discussion of topics like racism, or else face potential discipline or termination. As a federal court opined when it struck down key elements of the law, this is a “positively dystopian” violation of both students’ and faculty’s First Amendment rights.

FIRE is proud to have prevailed in its lawsuit against the law at the district court level, and we’re confident Florida’s appeal of the decision will not succeed.

DEI is also a problem off campus

Since college campuses are often ground zero for our hottest cultural conflicts, and because public universities are beholden to First Amendment principles (as are private schools that explicitly commit to them), it’s worth paying special attention to DEI’s effect on higher education. But of course DEI extends well beyond college campuses.

For years, organizations and businesses across the country have employed various forms of DEI in their hiring practices, professional development, and messaging — and there have been plenty of controversies resulting from those efforts. To the extent that those controversies implicate free speech, FIRE will be ready to step in.

And while private businesses aren’t bound by the First Amendment — allowing them to dictate (within the bounds of anti-discrimination law) their hiring practices, codes of conduct, messaging, and organizational norms — their DEI commitments could still detract from a broader culture of free expression. For example, after PayPal temporarily shut down a London-based free speech organization’s account in 2022, PayPal’s spokesperson gave a vague explanation about “protecting the ideals of tolerance, diversity and respect for people of all backgrounds.”

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Private companies’ DEI policies could also chill speech to the extent that they hang the threat of punishment over employees for personal, off-the-clock speech — firing people for criticizing DEI itself, or for commentary on issues of public concern that employers perceive as being in conflict with DEI.

DEI has also crept into public institutions in ways that may stifle speech or even compel affirmation of contested views, which also raises First Amendment concerns. The City of West Hollywood, for example, requires large organizations applying for art project grants to submit a “cultural equity” statement.

FIRE is also keeping a close eye on these off-campus dynamics and will, as always, defend freedom of speech when anyone’s First Amendment rights are violated.

Whether you’re pro- or anti-DEI, we must all be pro-free speech

First Amendment law is clear that legal protections for speech do not depend on the speech’s viewpoint. However detestable any individual may find a particular viewpoint, it is the right of every American to speak their minds and hear ideas they are interested in.

It is the purpose of higher education to allow students and faculty alike to engage in difficult discussions, entertain controversial concepts, and explore divergent perspectives. To this end, it is imperative that our colleges and universities promote and protect academic freedom — meaning ideological diversity is just as important to a functioning educational institution.

With respect to DEI, FIRE’s position is simple: All ideas should be open to discussion and debate, and all topics should be freely taught.

When speech is compelled or restricted on the basis of ideology, when an ideology becomes a political litmus test, loyalty oath, or barrier to professional and academic achievement, and when political actors try to use the power of the state to silence dissent and suppress disfavored ideas, that is a violation of free speech principles — and FIRE will fight it every step of the way.