First Amendment Concerns Arise From West Virginia Executive Order Targeting DEI
Credit: Win McNamee / Getty Images- West Virginia Gov. Patrick Morrisey signed an executive order prohibiting DEI practices across state agencies, including public colleges and universities.
- Advocacy groups claim the order is unconstitutional and restricts free speech in higher education by governing what instructors can teach in their classrooms.
- The U.S. Supreme Court has previously ruled that faculty in higher education are entitled to First Amendment protections within the classroom.
On Jan. 14, West Virginia Gov. Patrick Morrisey signed an executive order prohibiting diversity, equity, and inclusion (DEI) practices within state agencies, a move civil rights and First Amendment advocacy groups are calling unconstitutional.
The executive order bans public colleges and universities that receive state funds from mandating someone to “participate in, listen to, or receive any education, training, activities, procedures, or programming” that “promotes or encourages the granting of preferences based on one person’s particular race, color, sex, ethnicity, or national origin over that of another.”
The Foundation for Individual Rights and Expression (FIRE) and the American Civil Liberties Union of West Virginia (ACLU-WV) argue that the order violates classroom instructors’ First Amendment rights and restricts free speech in higher education.
“It’s ‘receive any education’ that is the problem here,” Tyler Coward, lead counsel of FIRE’s government affairs, said in an interview with BestColleges. “…The government can regulate a lot of things, but [the order] goes so far that it prohibits constitutionally protected activity.”
He added that a literal interpretation of the order would prevent professors from discussing topics such as judicial opinions supporting race-conscious college admissions, arguments in favor of affirmative action, or proposals advocating for reparations.
“This hastily written executive order represents a potential violation of educators’ free speech rights enshrined in the Constitution and upheld by the U.S. Supreme Court,” ACLU-WV Legal Director Aubrey Sparks said in a statement.
The U.S. Supreme Court has previously ruled that higher education faculty are protected against censorship in the classroom.
In Sweezy v. New Hampshire, the court found that “teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding; otherwise, our civilization will stagnate and die.”
Since 2022, over 30 bills and a handful of executive orders have been introduced nationwide targeting DEI funding, practices, and promotion at schools.
Several states have laws on the books restricting DEI, including Florida, North Dakota, South Dakota, Tennessee, Texas, Utah, Alabama, Idaho, North Carolina, and Iowa.
Indiana is the most recent state to implement DEI-restricting measures, with Gov. Michael Braun signing an executive order banning DEI positions, activities, training, and statements in state agencies the same day the West Virginia order was signed.
Coward explained that governors retain the authority to regulate policies and practices of state institutions unrelated to classroom instruction or faculty research.
“When it becomes a bright line in terms of the First Amendment is when laws seek to regulate what’s taught in college classrooms, censor faculty for engaging in certain types of research or publication of that research, censor what students say on campus, or what student groups organize about on campus,” he said.
FIRE is asking Morrisey to rescind or amend the order, whereas the ACLU is requesting a complete rescission of the order.
According to Coward, there have yet to be any documented impacts of the order. He added that institutions cannot comply with the order and their obligations to their faculty under the First Amendment.
“If asked to comply with the executive order or comply with the Constitution, these public institutions, as government agencies, need to prioritize the rights protected by the Constitution,” he said.