Abstract

Excerpted From: Kerii Landry-Thomas, Diversity, Equity, and Inclusion (DEI) in the Era of Hostility:  A Plea for Action and a Roadmap for Moving Forward, 55 University of Toledo Law Review 233 (Winter, 2024) (42 Footnotes) (Full Document)

In 2020, America experienced an awakening with the death of George Floyd by the hands of police that, I argue, was a long time coming. In the wake of George Floyd's murder and the awareness of the persistent social inequities that permeated American culture, many institutions within American society, including institutions of higher education (IHEs), focused with intentionality on equity, inclusivity, and racism. However, by 2023 multiple states led by Republican legislators proposed an onslaught of laws and regulations that impeded diversity, equity, and inclusion (DEI) efforts in higher education. In fact, Texas and Florida enacted laws that all but eliminated DEI offices in public IHEs. Consequently, while laws proposed to eliminate DEI efforts in IHEs failed in many other states, the hostility towards DEI efforts slowed down the momentum that was created after the death of George Floyd. This essay explores the importance of DEI in higher education, some of the legal frameworks against DEI, and the impact of counter legislation on DEI efforts in higher education. Finally, this essay offers a roadmap for future consideration so that DEI progress is not totally dismantled.

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II. Laws and Policies Impacting DEI

Recently, the Chronicle of Higher Education set out a series of articles focused on DEI efforts in colleges and universities and the hostile responses that states initiated against these efforts. Let's just say that the responses were swift and clearly not favorable to increased efforts to focus on DEI. I should note that my promotion came because of the effort to be intentional to DEI on my campus. I will talk more about my experience later in the essay. However, there was a significant growth in job openings and opportunities in the DEI space that came about because of the intentionality of colleges and universities. Unfortunately, only a few years later those opportunities have shrunk and are all but gone.

While many states put forth laws that were hostile to a wide range of DEI efforts, including banning of health care to trans-youth, banning or removing books that focused on DEI topics, and restructuring how DEI offices operate on college campuses, many state legislatures did not implement sweeping changes. The states that did pass laws made their intentions very clear. The two most visible and vocal anti-DEI states were Texas and Florida and they passed regulations to ensure that the cultures on their college campuses were definitely changed. It should be noted that both Texas and Florida have high numbers of minorities with a specific focus on the Latinx population (I know that this term is not preferred by many, but it is the term I can use to capture such a diverse group of people). Thus, the growing population of a more diverse population in these states only made the responses more hostile.

A. Florida Senate Bill 266

Florida's Governor, Ron DeSantis, has been hostile to all efforts to discuss race, sex, gender, and diversity in education. He has vehemently spoken out against Critical Race Theory being taught in schools (although it is a graduate-level theory and not taught in K-12) and has set in place an environment that prohibits that accurate teaching of history. The culmination of his hostile efforts was the passage of Senate Bill 266. The bill prohibits public colleges from spending money on DEI programs, and bans offering of general education courses that “distort significant historical events, teach 'identity politics' or are based on theories that systemic racism, sexism, oppression, or privilege is inherent in the institutions of the United States.” This law has effectively closed DEI offices, removed diversity statements as a part of the application package, and left IHEs in Florida struggling to figure out how to support all the students that walk through their doors. Recently, a coalition of professors and students from New College of Florida sued the institution's trustees arguing the law is vague, overly broad, and effectively deters and chills free speech. The same can be said for Texas's passage of Senate Bill 17.

B. Texas Senate Bill 17

In the same vein, Texas's legislature passed stringent anti-DEI legislation in 2023. This legislation expressly prohibits establishing and maintaining a DEI office. In addition, the law prohibits the use of a DEI statement in hiring and retention and, most importantly, the law prohibits any requirement of DEI training except where required by the federal government (Ex. Title IX). Additionally, the legislation allows for any student or employee required to take DEI training to have standing to sue for declaratory or injunctive relief.

These two laws create environments that are not only hostile to DEI efforts, they all but exclude any intentional DEI efforts as they relate to race and LGBTQ+ identities. Both laws provide exceptions for other forms of DEI outreach such as for first-generation students, veterans, and low-income students. However, the overall effect is to chill any efforts related to DEI by causing mistrust, chaos, and hostility. Anyone working in this area can attest that this type of environment effectively ends DEI work in Texas and Florida, and burdens DEI efforts around the country as more state legislators become emboldened to challenge the premise of DEI efforts.

While Louisiana was able to thwart off most of the anti-DEI legislation, with a new conservative governor and a conservative legislature, many are fearful that sweeping changes to DEI efforts are forthcoming. Even in states that have not passed such sweeping legislation, hostility is on the rise against diversity statements, required trainings, and the overall support for DEI offices. Let me be clear, after 2020, while there was momentum behind DEI and it felt as if substantive change was happening in terms of how our society addressed ongoing issues of race, gender, LGBTQIA+ lives and other forms of identity, there was a clear halt to any progress by 2023. In three short years, DEI went from the top of the hill to a source of contention. There is no IHE that is left untouched including those in blue states such as California. The question is where this situation leaves IHEs as they continue to serve an ever-growing diverse student population.

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Thus, institutional frameworks give IHEs the ability to not have DEI as a separate office or tangential part of learning but to incorporate DEI into everyday workings of the institution. Training on DEI is not the same thing as doing DEI work. I do believe that the growing hostility towards DEI is now forcing institutions to no longer rely on low-impact initiatives but to thoughtfully consider how to really diversify their faculty and administration, broaden recruitment and admissions policies and procedures, and create environments that are accessible to all that attend the institution. In my book, this is not the end but simply a new beginning.

Associate Vice Chancellor for Equity, Inclusion & Title IX at Southern University Law Center (SULC). SULC is a Historical Black College and University in Baton Rouge, Louisiana.