First Amendment Challenges to Public University DEI Programs


There are ever more stories in the news these days involving professors at public universities who seem to claim that university diversity, equity, and inclusion (DEI) policies and programs are trampling the professors’ free speech rights. For example, in an op-ed earlier this week in the Wall Street Journal, Ohio Northern University (ONU) law professor Scott Gerber implies that his employer has wrongly suspended him on account of his vocal criticism (on TV, in newspapers, and elsewhere) of DEI programs that discriminate against white men and that pay no attention to viewpoint diversity—an omission Gerber finds troubling. (To be clear, Professor Gerber’s complaints about ONU’s treatment of him seem to involve allegations of a lack of due process and fair notice in addition to the suggestion that ONU has targeted him because of his political views.) Also, even though ONU is as far as I can tell a completely private university, I am assuming that Ohio has some kind of law, like California does, that requires private universities to follow First Amendment restrictions. And even if that assumption is wrong, the general analysis I offer below with respect to Gerber will still be relevant to similar cases at public schools.

Another episode involves a long-running dispute at the law school at the University of Illinois-Chicago (UIC) (not to be confused with the University of Illinois College of Law, Urbana-Champaign, where I serve as a professor and the dean) between administrators there and law professor Jason Kilborn. In a federal lawsuit he filed against UIC officials, Kilborn alleges he was unjustifiably investigated and found to have violated various UIC policies, including UIC’s nondiscrimination policy. Of particular importance for this column, Kilborn further alleges that UIC reneged on an agreed settlement of these matters when the University, as a condition of allowing him to teach again, “required him to complete an eight-week diversity course.” More specifically, Kilborn claims UIC administrators violated the First Amendment by mandating “sensitivity training” which (according to Kilborn) “compels [him] to express his commitment to the goals of the program in order to be released back to teaching, even if he disagrees with the content and the purpose of this diversity training.” In other words, Kilborn alleges that government (the UIC administration) has violated his First Amendment rights by unconstitutionally compelling his speech. (As is true in Gerber’s case, Kilborn’s dispute involves claims that go beyond the First Amendment, but for present purposes I focus on the latter.)

Gerber’s apparent beef—that a public employer has punished him for his speech on matters of public concern—is not super novel, and the federal courts have a relatively well-established doctrinal framework for dealing with such matters. Putting aside rights that arise from contractual or other state-law guarantees of academic freedom, if a public employee is speaking (even on matters of public concern) while on the job, qua employee, then under the 2006 Supreme Court Garcetti v. Ceballos case the public employer has unfettered latitude to discipline the employee if the speech conflicts with the objectives or policies of the public employer. As the Court put things: “[Wh]en public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

When a public employee’s speech is not undertaken “pursuant to official duties,” but is instead engaged in as a private citizen, such speech is not immune from employer discipline, but when the speech involves matters of public concern (and the wisdom of DEI policies would qualify), then courts must balance, under the Court’s Pickering and Connick cases, “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (When the speech does not relate to a matter of public concern, the employee’s First Amendment rights, while not altogether nonexistent, are rarely strong enough to justify federal-court interference in the public workplace.)

There is some question in the lower courts whether the Garcetti rule applies to public-school professors, but it would appear from his account that at least some (most?) of Gerber’s anti-DEI statements were made as a private citizen rather than on the job, and thus these statements (if they are indeed the basis of the suspension he has been put on) would likely be evaluated (were there to be federal litigation) under the Pickering/Connick balancing standard.

Kilborn’s claim of unconstitutional “compelled speech” is more exotic, and courts haven’t yet developed clear principles to guide resolution of such claims. A few months ago, the federal district court in Kilborn’s case allowed the claim as alleged to go forward, but did observe that “Kilborn may not ultimately prevail.” Without remotely attempting to fully analyze whether and how mandatory university training sessions can amount to impermissible compelled speech, I offer a few preliminary thoughts below.

For starters, let’s be honest in acknowledging that the Court’s compelled-speech doctrine is kind of a mess. Oftentimes the Court says there is a paradigmatic compelled speech problem (only?) when a reasonable outside observer would mistakenly believe that an individual who is being forced to utter the message the government compels actually agrees with or embraces that message. But that notion is inconsistent with the seminal compelled-speech case, Wooley v. Maynard, in which the Court struck down on First Amendment grounds a New Hampshire statute requiring that each passenger car registered in that state bear a license plate containing the unobstructed words “Live Free or Die” (the State’s motto) on it. The challengers in Wooley prevailed even though there wasn’t a misattribution problem there; nobody seeing a stock, standard-issue New Hampshire license plate on the road is going to necessarily believe that the driver himself embraces Patrick Henry’s famous “give me liberty or give me death” creed. Indeed, the lower courts in Wooley had made a specific finding to this effect that the Supreme Court never questioned—that “[the challengers’] membership in a class of persons required to display plates bearing the State motto carries no implication . . .that they endorse that motto or profess to adopt it as matter of belief.”

The Court in a related vein also sometimes rejects compelled-speech claims when the challengers are free and able to distance themselves from the government’s message even as they are required to utter it. But this ability to distance was present in Wooley: The New Hampshire statute did not forbid a person from placing a bumper sticker above his license plate saying “I disagree with New Hampshire”s motto.” And yet the Court found there to be a First Amendment violation.

Moreover, the suggestion that the First Amendment compelled-speech issue dissolves because a challenger remains free to speak herself is in deep tension with the reasoning of other precedents from the Court.

For example, in Miami Herald v. Tornillo, the Court invalidated an “equal time” law that required a newspaper to provide space to political candidates who had been attacked in print. In doing so, the Court rejected the notion that the compelled-speech problem went away because the newspaper could always distance itself from anything a political candidate said in the space provided him, by merely writing its own editorials responding to the candidate’s speech. Indeed, the Court noted that putting pressure on the newspaper to speak in order to distance itself from, or respond to, a message it was required by law to host itself burdens the newspaper’s First Amendment rights.

What, then, really accounts for when a compelled-speech claim wins and when one loses? I think that individual dignitary and autonomy interests are often key (if underdiscussed) and help explain cases like Wooley. A car is much like a person’s home or a person’s clothing—it is an extension of the person and his sense of privacy—and what the Wooley Court called the “individual’s First Amendment right to avoid becoming [a] courier” seems strongest in an intimate context.

The larger, the more businesslike, and the more impersonal the setting, the less plausible it is to invoke the kind of dignitary and autonomy interests that account for the result in Wooley. So, for example, consistent with Wooley, I think it may very well be permissible for the federal government to require industrial employers to post ads for war bonds in the workplace; places of business have fewer privacy and dignitary rights.

But not all places of business are the same. Certain organizations, like newspapers, are distinctively created for and devoted to expressive association. So whether an organization has a right to avoid being the carrier of speech with which it disagrees may depend on how central speech and expression are to its own mission. This is why, for example, I think the Miami Herald, even though it is a private for-profit institution, may not be required to run government ads if it doesn’t want to. And private universities may be immune from government prescription of the curricula.

With that general background in place, how do we evaluate compelled-speech claims of public (Garcetti and the like teach us that government has broad leeway under the First Amendment to regulate its own employees) university professors for having to undergo sensitivity trainings?

One important observation to make is that being compelled to hear the government’s message isn’t the same thing as being forced to speak. Most training sessions of various kinds that (public) employers insist upon simply (if sometimes mind-numbingly) expose the employee taking the training to a set of materials and test whether the employee comprehends the materials that have been presented. Even if training sometimes seems like indoctrination, the employee is not being asked, much less compelled, to say anything in particular. If there is any constitutionally permitted tradeoff for taking a government job, being subjected to the government’s messages has to be part of what an employee can be asked to concede.

But what about the fact that such training sessions often require the participants to answer questions? Certainly requiring faculty (or students) at public universities to utter speech can’t, as a general matter, be a problem. Professors have to write to obtain tenure. Professors have to speak to conduct classes or do committee work. And a professor who declines to write scholarship or who refuses to lecture when the employer insists upon lectures can’t complain about impermissibly compelled speech. Similarly, many law school classes require classroom oral participation on the part of students. It should go without saying that requiring a student to share his or her views on a topic can’t be a problem. And students (because they are not employees) generally have more First Amendment rights than public-school professors.

Nor can it be a compelled-speech problem that some answers to questions will (based on content) receive credit and others won’t. A professor denied tenure because his scholarship didn’t say important and original things can’t complain he was being impermissibly compelled to utter speech against his wishes. And a student whose exam answers don’t reflect an understanding of the law can’t complain when he gets a bad grade by saying he was being impermissibly forced to utter certain content—a correct statement of the law—that he didn’t want to. In this regard, I would think that, at least as to the training programs I have been forced to take, when I am forced to answer questions, I am not being directed to declare that my own views on the relevant topics are the same as the views presented in the materials, but instead am being asked to provide answers merely to demonstrate I understood the views being presented.

Professor Kilborn seems to intuit these important distinctions, and that is why his pleadings allege that he is being forced to convey not just understanding, or even sophisticated understanding, of DEI principles, but “commitment” to certain goals discussed in the DEI training. Such a claim, of course, may turn on the facts as they are developed and the training to which he was in fact subjected. But at least as an analytic matter, having to parrot back the values the university says it is trying to implement is different from having to profess allegiance to those values oneself.

But even then, might the university take into account one’s genuine commitment (or lack thereof) to certain values in the public employment setting? (Remember, we’re not talking about mandatory DEI training for all citizens, but only for university employees or perhaps students.)

Imagine the following scenarios: A university asks prospective faculty members at the interview stage whether they believe universities should be committed to excellent classroom teaching or only to impactful scholarly research (a topic of robust debate in universities and legislatures). Two entry-level candidates, both of whom have no teaching track record, answer in different ways. Candidate A says “absolutely universities should be committed to teaching, and I’m excited by the prospect of being at this university because I know it values teaching!” Candidate B says “universities should absolutely not be committed to teaching, but I fully appreciate that this university does value teaching and so I would if hired do what is needed to live up to the teaching standards here.” Might the university permissibly prefer Candidate A over Candidate B on the ground that a genuine commitment to teaching is, as a predictive matter, more likely to generate better teaching in practice (something the university believes is a key part of its mission)? And if the university can prefer Candidate A to Candidate B, does that amount to compelling Candidate B to utter and embrace a particular message?

Now let’s come back to the Kilborn dispute. If a public university, rightly or wrongly, believes that the promotion of DEI values is central to its identity and mission (just as the university in the hypothetical above believed that classroom instruction was central to its mission), can the university not prefer (at the hiring stage) people who genuinely embrace those values, on the ground that sincere embrace of those values is more likely to result in the kind of inclusive and welcoming communities the university believes are central to its mission? (And if such factors can be taken into account at the hiring stage, might they also be considered—contractual obligations aside—for persons already employed?)

These are tough questions. On the one hand, it would seem that government employers have to be able to draw some inferences and make some predictions about future behavior of employees based on what those employees say they believe. Doesn’t a district attorney have to be free, as a First Amendment matter, to prefer an assistant-DA candidate who believes the DA’s office does good work over a candidate who says she will follow orders but who also confesses that deep down she believes DA offices should themselves be abolished? (And if universities are different from prosecutors’ offices, that might be because of things, like tenure and promised academic freedom, that aren’t grounded in the First Amendment, but that may explain a lot of people’s intuitions in this realm.) On the other hand, government employers (including universities) perhaps should be required to justify their differential treatment of an employee (would-be or existing)—when that differential treatment is tied directly to the beliefs the employee is (un)willing to express—by demonstrating some legitimate and particularized basis for making predictions about job performance based on particular beliefs. Indeed, shouldn’t a public university have more leeway to discipline a professor for actively criticizing DEI policies the university embraces (the Gerber scenario) than for simply (and silently) being unwilling to genuinely embrace such policies? Certainly the active critic would seem to impede the university’s ability to discharge its mission more than the silent non-conformist. So if people like Gerber have First Amendment rights to criticize (and I’m saying if here since I’m not trying to opine on how the Gerber-type situation would or should necessarily be resolved), then a fortiorari shouldn’t people like Kilborn have First Amendment rights not to endorse or “commit?” In the end, something like a beefed-up version of the Pickering/Connick balancing test that requires government to make particularized showings may end up evolving for compelled-speech claims like Kilborn’s. Such open-ended balancing tests are often unsatisfying, but sometimes they are also often the best courts can come up with.


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