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My Right or My Liberty?: The Constitutionality of DEI

IRAC Activity

IRAC stands for *Issue, Rule, Analysis/Application, Conclusion*

Read the Case History, Issue, Rule, and Analysis. Applying Strict Scrutiny, you will be asked to apply the Rule to your Conclusion as you craft your Opinion of this case. As the Supreme Court, you have three directions for your holding:

  • Affirm (uphold previous court ruling(s)

  • Reverse (Overturn previous court ruling(s)

  • Remand (Send back to a previous Court for retrial on the basis of new evidence or examination)

Case History

Plaintiff (institution) sued Defendant (State) because the Defendant passed a law/statute (SB5432) that banned the training of, funding for, education in, and overall creating of DEI initiatives that “juxtapose privileged and non-privileged identities as a way to highlight oppression” in spaces that adhere to title VII of the Civil Rights Act (1964) as they were believed to be discriminatory. The Plaintiff argued that the law was a violation of their constitutional right to diversity, equity, & inclusion, implied by the Fourteenth Amendment to the U.S. Constitution, and that engaging in content around privilege and identity was not discriminatory nor unconstitutional. The Plaintiff argued that inherent in the work of DEI education is the fundamental right to equal protection, which the installation of this new law violates. The Defense argued that DEI was not a substantive right by which the U.S. Constitution is bound to protect under the 14th Amendment and, therefore, becomes a matter of the State, which is not in violation of the Constitution. In addition, the Defense argued that it was the DEI initiatives that were, in fact, unconstitutional because “the segregation inherent in identity-based language and initiatives will always discriminate against another group.” Similarly, matters of education are State matters, the operations of which not subject to Federal provisions, guidelines, and policies. The Trial Court ruled in favor of the Defendant and the Circuit court affirmed. Plaintiff appealed. The Supreme Court granted Cirt.

Issue(s)

  1. Whether diversity, equity, & inclusion (DEI) initiatives violate the Equal protection Clause of the U.S. Constitution.

  2. Whether diversity, equity, & inclusion (DEI) is a substantive right inferred by the 14th Amendment to the U.S. Constitution.

 

Rule

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws" (US Amend. 14)

  • Plain Language: No State agency (or government agency) may enforce a law that interrupts a U.S. citizen (of any identity) from enjoying the benefits of being American, granted to them under the Constitution, which they were previously enjoying (i.e., As a U.S .citizen, I have a right to free speech and the State cannot enforce a law that says I no longer have that right). The support for this amendment is to be enforced equally among all social identities.

 

Analysis

Plaintiff: The Plaintiff would argue that, because laws must not be arbitrary (Judge Wood, 2003), all persons must enjoy a reasonable application of the law that is applied predictably and uniformly (ABA.org). The Fourteenth Amendment prevents any State or set of unity of States from enforcing any law which abridges the privileges or immunities of United States citizens. Where SB5432 prohibits DEI initiatives that “juxtapose privileged and non-privileged identities as a way to highlight oppression,” it is unclear and, therefore, unpredictable to discern exactly what content would fit that bill. Prohibiting “non-privileged” racial and other marginalized identities from understanding their circumstances in society, both past and present, while allowing their White and otherwise privileged counterparts to do so is a clear violation of equal protection under the laws.

Additionally, in United Steelworkers v. Weber (1979), the Supreme Court found that the adoption of an affirmative-action plan designed to “eliminate traditional patterns of racial segregation” did not violate Title VII of the Civil Rights Act, and that “the prohibition against racial discrimination must be read against the background of the legislative history of Title VII and the historical context from which the Act arose.” This is because SEC. 311 of Executive Order 10925 (Affirmative Action) states that institutions “shall encourage the furtherance of an educational program by employer, labor, civic, educational, religious, and other nongovernmental groups in order to eliminate or reduce the basic causes of discrimination in employment on the ground of race, creed, color, or national origin.”

 

Given the historical nature of racial justice in the United States, the Plaintiff would argue that a fundamental part of DEI work is to remedy racial animus and injustice and the banning of DEI initiatives would do the opposite of that. Therefore, the courts would find the statute, SB5432, unconstitutional.

 

Defense: The Defense would argue that “The State is committed to ending discrimination in all its forms; critical to this commitment is the obligation to treat citizens as individuals, not simply as components of a racial, religious, sexual, or national class. As part of this obligation, the State is dedicated to providing higher education to all on equal terms.

 

Across American academia, a discriminatory ideology antithetical to the state’s commitment to nondiscrimination, has grown popular under the guise of “diversity, equity, and inclusion,” or DEI. Although DEI sounds innocuous and even salutary, it’s an Orwellian phrase that in reality prevents intellectual diversity, impedes equal opportunity, and excludes those who don’t conform to progressive orthodoxy. Students and employees have the constitutional right to adopt such a discriminatory ideology on their own, but the State will not make adherence to any ideology, let alone a discriminatory one, a prerequisite to equal access to public institutions of higher education as a student or as an employee.

 

Public institutions of higher education are strengthened, not weakened, by diversity of thought, ideas, and expression. Furthermore, since the speech made by employees of public institutions of higher education while conducting mandatory training sessions is speech made in the performance of their duties as employees of the State, the legislature must ensure that this speech is not discriminatory.” (Manhattan Institute, 2023). Therefore, the courts would not find the statute, SB5432, unconstitutional.

 

Applying your understanding of the above, please deliberate and provide for the court your Conclusion

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