West Virginia Gov. Patrick Morrisey issued an executive order yesterday to eliminate certain diversity, equity, and inclusion practices in state agencies and organizations that receive state money. While the state may limit certain programs or activities of state agencies, the executive order is written so broadly that it applies to classroom instruction in higher education. As such, the executive order violates the First Amendment and must be rescinded or amended to make clear that it does not affect what’s discussed in college classrooms. If the order is not rescinded or amended, West Virginia’s public institutions must protect faculty academic freedom rights and make sure that classroom teaching is not affected.
If you are a faculty member whose teaching may be impacted by Executive Order 3-25, FIRE is here for you.
Provision 1.b. sweeps in an enormous amount of expression protected under the First Amendment protected expression at West Virginia’s universities and colleges. It provides:
[No] entity receiving state funds, shall utilize state funds, property, or resources to . . . Mandate any person to participate in, listen to, or receive any education, training, activities, procedures, or programming to the extent such education, training, activity, or procedure promotes or encourages the granting of preferences based on one person’s particular race, color, sex, ethnicity, or national origin over that of another.
This language violates the First Amendment, reaching college classroom instruction and discussion. It is viewpoint-discriminatory, prohibiting faculty from sharing any material that “promotes or encourages” a view while allowing them to criticize that viewpoint. And while other states’ anti-DEI efforts have included language that might protect discussions in university and college classrooms, West Virginia’s does not — instead, it applies to any agency receiving state funds. West Virginia’s public universities cannot both comply with the executive order and their obligations under the first Amendment.
Governor Morrisey should rescind or amend the Executive Order to make clear that it does not affect higher education classroom instruction.
Whatever authority states might have to regulate other state agencies (including K-12 education and non academic higher education programming), the university classroom context is different. The First Amendment protects the right of faculty members at public universities and colleges to discuss pedagogically-relevant material in their courses, even if that material is offensive to students, colleagues, the public, or lawmakers. As the Supreme Court held in Keyishian v. Board of Regents of the University of the State of New York (1967), state officials cannot use the law to impose an “orthodoxy over the [college] classroom,” where students learn “through wide exposure to that robust exchange of ideas,” not “authoritative selection,” wrote Justice William Brennan.
FIRE has defended this important right across the ideological spectrum in courts across the country, successfully suing over Florida’s “Stop WOKE Act” and maintaining an ongoing challenge against California’s requirement that faculty incorporate ‘anti-racist’ viewpoints into their classroom teaching.
Executive Order 3-25 violates those First Amendment rights. Under Executive Order 3-25:
- A law professor teaching constitutional law cannot present Supreme Court opinions arguing in favor of race-conscious admissions at universities and colleges, including the dissenting opinions in Students for Fair Admissions v. Harvard College or the plurality or majority opinions in Bakke and Grutter.
- A college professor cannot recount other arguments in favor of affirmative action or racial preferences, which remain legal in many other circumstances outside of the university context.
- A professor discussing reparations — including proposals recently introduced in the United States Senate — can only criticize reparations, but could not present arguments in favor, even if they want to dissect those arguments.
- A history professor would have to think twice before presenting materials relating to historic immigration policies that limited immigrants by national origin, as that might “promote” preferences based on national origin.
- A political science professor cannot present materials arguing in favor of continuing to limit Selective Service (i.e., the military draft) registration requirements to men, or limiting combat roles to men, as those arguments would “promote” preferences based on sex.
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Worse still, it is impossible for an educator to know what might “promote or encourage the granting of preferences” with regard to a particular student. For instance, since students reading the Supreme Court decisions in Bakke and Grutter may find their arguments convincing, even teaching about these landmark cases would risk violating the executive order. This cannot be reconciled with the First Amendment and academic freedom rights of West Virginia students and professors.
The plain language of the provision clearly conflicts with West Virginians’ constitutional rights. Governor Morrisey should rescind or amend the Executive Order to make clear that it does not affect higher education classroom instruction. If you are a faculty member whose teaching may be impacted by Executive Order 3-25, please contact FIRE: https://thefire.org/alarm.
