These Colleges Are Fighting Back Against Anti-DEI Laws. For Now.

Colleges are taking advantage of 'gray areas,' but future litigation could make circumventing anti-DEI laws more difficult — if not impossible.
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Published on September 28, 2023
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Within the last five months, several diversity, equity, and inclusion (DEI) programs and offices have closed on college campuses. These closures are more often than not related to anti-DEI legislation across the country, namely in Florida, Texas, and Wisconsin, where lawmakers recently passed legislation that explicitly restricts or prohibits DEI programs, services, and resources.

Even worse, 21 other states are considering similar legislation, including Alabama, Arizona, and Ohio.

With so much uncertainty regarding which programs these laws restrict, some colleges are finding ways around them.

While legal challenges to these initiatives may emerge, these loopholes can offer a model for resistance against a wave of anti-DEI legislation that will impact the commitment to diversity, equity, and inclusion in higher education.

The Impact of Anti-DEI Legislation on College Campuses

In this year alone, more than 30 bills were introduced across the U.S. to limit or prohibit programs and resources for DEI on college campuses. While the majority of these bills have yet to pass and become law, a few states have been successful in their efforts to stymy college diversity efforts.

In May, Florida became the first state to make such a law under Senate Bill 266, defunding the promotion and continuation of DEI programs in addition to general courses that teach or discuss "theories that systemic racism, sexism, oppression, and privilege are inherent in the institutions of the United States."

Texas passed a new law that will go into effect in January 2024 that will effectively eliminate diversity, equity, and inclusion offices at public colleges and universities in the state.

Even in states where anti-DEI bills have either died in session or have yet to pass, Republicans and Democrats have wrestled over funding, defunding, and eliminating these programs for public higher education institutions.

For example, just in the last couple of weeks, Republicans in Wisconsin fought to block pay raises for University of Wisconsin employees who continue the promotion of DEI on campus, despite calls from the Democratic Gov. Tony Evers to increase spending in these areas, according to the Wisconsin State Journal.

What we can see from legislation in these states is the wide-ranging impact anti-DEI legislation can have on a college campus, including the ability to recruit and retain a diverse staff and student body that reflects the diversity of society and any programs or services that would otherwise showcase a commitment to equity and inclusion for students.

Dr. Menah Pratt, vice president for strategic affairs and diversity and a professor of education at Virginia Polytechnic Institute and State University, highlights one of the central issues that anti-DEI legislation is creating for college campuses — chief among them the impact it has on the college student experience.

"It may be more difficult for more vulnerable students to identify offices, places, and spaces that provide support based on their unique identities and needs," said Pratt.

"In the absence of courses — particularly in the sciences, social sciences, and humanities — that address issues of race, students may be receiving inaccurate and incomplete education, rendering them less prepared for addressing these issues in their post-graduation careers and professions."

How Colleges Are Finding a (Legal) Way to Promote DEI

Despite the conservative push to roll back advancements in DEI in higher education over the last 50 years, there are, fortunately, states and individual colleges that are either fervently resisting new legislation or finding careful ways to continue DEI efforts without suffering legal consequences.

The Texas A&M University System

Recently, the Texas A&M University System published compliance guidelines and answered frequently asked questions for staff and faculty to safely circumvent the anti-DEI ban in Texas while still honoring equity and inclusion.

The guidelines stated that universities might organize events that "support diversity in a general way" but must not "promote preferential treatment of any particular group and are open to everyone."

University of Wisconsin-Madison

Despite the block on pay raises in Wisconsin, UW-Madison Chancellor Jennifer Mnookin has doubled down on her commitment to DEI.

She recently told The Daily Cardinal in an interview, "I want to be clear. The value of diversity here at UW-Madison is tremendous," Mnookin explained. "Diversity is important for value. We recognize that there's a lot of literature out there that shows that diverse teams and decision makers make better decisions."

Offering Help to Impacted Students

At Colorado College, the university president and administration have gone so far as to create a new program called the Healing and Affirming Village and Empowerment Network (HAVEN) that welcomes transfer students from states where anti-DEI legislation may impact their ability to succeed and graduate.

Similarly, Rice University's Queer Resource Center now offers honorary membership to LGBTQ+ students impacted by anti-DEI laws at their respective Texas universities.

We see from these examples not only that there are ways to continue the work of DEI and social justice but also just how far colleges are willing to go in the face of adversity. More than anything, the interpretation of these laws will require colleges and universities to tap into the true meaning of DEI to skirt the political frenzy that may ensue. As Dr. Pratt affirms:

"It is important for colleges and universities to break down the DEI acronym into meaningful core values such as inclusive pedagogy, inclusive excellence, student success, the pitfalls of group thinking, and the importance of cultural competency.

"By reframing and clarifying exactly what DEI represents, there will be opportunities to help campuses move beyond the politics associated with the acronym to the real value and importance of the universal concepts underlying the acronym, such as belonging, fairness, and valuing and respecting the backgrounds and experiences of all individuals."

Despite Resistance, Legal Challenges May Lie Ahead

While it is encouraging to see university leadership and state lawmakers who know and believe DEI is essential to the mission of higher education, the murkiness of anti-DEI legislation itself not only leaves a lot to be desired but also makes it unclear whether any of these programs — namely those in states where a ban exists or is imminent — will be able to continue for much longer.

"The gray areas are different in many states, and it is important to carefully read and understand the legislation in each state," said Pratt. "For example, Florida's legislation impacts curriculum; Texas' legislation does not impact curriculum or research. There may also be some gray areas in terms of the initiatives and programs that students can initiate."

While Pratt says professors and administrators are more exposed to legal consequences, she also believes that students have been and can be great partners in the fight to preserve DEI initiatives in college.

"Historically, college students have often been the catalyst for promoting social justice through protests and rallies that raise awareness of important issues related to social justice. Students are more immune because they can still exercise their right to free speech, their ability to raise important issues in class discussions, to peacefully assemble, and to engage in protests on college campuses to try to lead change."

Regardless of the Outcome, This Issue Is Worth the Fight

A lot has happened in higher education over the last year, including but not limited to the end of affirmative action and the unwavering focus by politicians to clamp down on the progress colleges and universities have made to advance diversity initiatives for faculty, staff, and, most of all, students.

It's hard to ignore that higher education has become a political battleground for discussing concepts, theories, and practices meant to create a safe space for the most underrepresented and historically excluded students in our educational system.

We don't know what the future holds regarding attempts at resisting conservative limitations on diversity, equity, and inclusion.

But it's become abundantly clear that colleges and universities — particularly the ones that promote DEI as a crucial part of the college experience — must find innovative ways to continue this work, whether that be in lobbying efforts at the state level, partnering with colleagues at the institutional level, or joining arms with college students at the campus level who are scared, concerned, and ready to fight back against this wave of anti-DEI legislation.

We owe it to ourselves and the world we are trying to create for future college students and graduates who will become the bedrock of our society in the years to come.

Portrait of Menah Pratt

Menah Pratt

Menah Pratt is the vice president for strategic affairs and diversity and a professor of education at Virginia Polytechnic Institute and State University. With over 30 years of administrative, academic, legal, fundraising, advancement, and community engagement experience, Dr. Pratt envisions, leads, and manages large-scale transformational strategic initiatives, including diversity and inclusion efforts in higher education.

Dr. Pratt received a B.A. in English with high distinction with minors in philosophy and African American studies, an M.A. in literary studies from the University of Iowa, and both a master’s and doctorate in sociology from Vanderbilt University. Dr. Pratt's teaching and research interests include issues of race, class, and gender in education, focusing on the transdisciplinary analysis of diversity issues in higher education.