I’m not a lawyer. At some point in life, I wanted to become one; personal circumstances took me on a different path, for the better. But if I were a lawyer, I would argue that government bans on Diversity, Equity, and Inclusion (DEI) programs are unconstitutional and also an attack on the very values of free speech and equal opportunity that we are supposed to uphold. The federal government’s decision to shut down DEI initiatives under the assumption that they are ilegal is nothing more than prior restraint—a well-known and heavily frowned-upon form of censorship. Some states have already done something similar and others are following suit. But as history has shown us, prior restraint is not just a direct violation of the First Amendment, but one of the biggest threats to a democratic society.
In cases like Near v. Minnesota (1931) and New York Times Co. v. United States (1971) the Supreme Court has determined that the government cannot simply preemptively silence speech it dislikes. Yet, DEI bans do precisely that—they stifle conversations about diversity and inclusion before they can even take place. It forces universities, businesses, and individuals to self-censor, fearful of repercussions for discussing topics that are essential to ensuring fairness and equal opportunities in our society.
Some have argued that Students for Fair Admissions v. Harvard (2023) gives the government justification for this sweeping prohibition. That’s just wrong. That decision dealt only with affirmative action in college admissions, not with DEI programs whose goals are to support and provide opportunities to well deserving individuals. The SCOTUS decision didn’t struck down diversity as a state compelling interest. Under this ruling, diversity programs are still legal as long as they don’t provide racial –or other kind of–preferences to one individual over another. DEI is not affirmative action, and banning it under the pretense of that ruling is nothing more than censorship, a way to silence necessary discourse while depriving deserving individuals of access and opportunities for upward mobility.
Beyond the First Amendment, the government is leveraging its power of the purse to punish institutions that continue DEI efforts. But here’s the problem as I see it—this tactic looks unconstitutional, too. The Supreme Court has ruled that the government cannot condition funding on the surrender of constitutional rights (Agency for International Development v. Alliance for Open Society International, Inc., 2013). What’s happening here is coercion—forcing institutions to abandon DEI efforts not because they are unlawful, but because they go against the ideological preferences of those in power.
The ruling in Citizens United v. FEC (2010) also provides an interesting perspective here, in my opinion. Citizens United reinforced that corporate speech—and that includes speech about diversity and inclusion—cannot be restricted based on the government’s disagreement with its message. If corporations can spend unlimited amounts on political speech because it is protected by the First Amendment, then surely those same corporations should be allowed to continue DEI efforts without fear of losing funding and/or federal contracts.
As I have commented before, this isn’t just about the law. It’s about people. If I were a lawyer, I wouldn’t just argue the legal principles—I would talk about the individuals whose futures are being jeopardized by this ban. The students who may never feel welcomed in their own classrooms. The young and talented employees, whom without DEI programs, may not have advocates fighting for their merit to be seen and for real fair treatment. The young girl who dreams of becoming a doctor or an engineer but now lacks role models and access programs because initiatives supporting diversity in STEM have been dismantled.
I recognize the fears of some who feel that DEI programs give advantages to others that they themselves do not receive. We cannot ignore the concerns of individuals who see DEI efforts as exclusionary rather than inclusive; they shouldn’t be. The solution, however, is not to eliminate nor to simply rename DEI, but to ensure that the purpose of equity-minded programs is clear—to level the playing field for everyone, not to tilt it. Equity-driven programing is about removing barriers, not erecting new ones. It’s about ensuring that opportunity is truly available to all, regardless of origin or background.
This is not just an abstract legal debate. This is about real people, real lives, and the kind of society we want to build. If the government succeeds in this ban, it’s not just DEI that will suffer—it’s the fabric of our democracy, our sense of fairness, and the belief that everyone, regardless of race, sex, gender, beliefs, or background, deserves a chance to thrive. And that, Your Honors, is why these bans cannot stand.