State Legislators Target Diversity Statements In Latest Effort To Dismantle DEI Initiatives

• Jurisdiction: United States,Federal
• Law Firm: Jenner & Block
• Subject Matter: Corporate/Commercial Law, Diversity, Equity & Inclusion
• Author: Mr Ishan K. Bhabha, Lauren J. Hartz, Kathryn Wynbrandt and Andrew C. Elliott
• Published date: 12 May 2023

As a growing number of state legislatures across the country advance anti-DEI initiatives before the end of their respective legislative sessions, diversity statements are in the crosshairs. Diversity statements began expanding in popularity a decade ago as a way of inviting job applicants to provide information about their contributions to DEI work. ¹ At present, these statements can take different forms - some prompt applicants (whether for employment or admission to an academic program) to provide details about their work to promote diversity, others invite the sharing of personal experiences - and organizations that request them have different approaches for considering these statements in their review and selection processes. ²

Critics have likened diversity statements to "loyalty oaths," and more than a dozen states have considered or are considering bills that would restrain the use of these statements. In addition, two conservative think tanks have published model legislation that would bar universities from soliciting or requiring diversity statements in hiring and admissions processes. ³ While some state government and federal actors have taken steps in response to strengthen diversity initiatives, the intensifying attacks against diversity statements in particular mean that organizations of all kinds should be tracking legislative developments and considering the potential impact of these proposals on their existing DEI efforts.

How and Why States Are Restricting Diversity Statements

Thirteen states have proposed legislation this year that directly or indirectly restricts the use of diversity statements by colleges and universities. The proposals are varied, but some key patterns have emerged. For instance:

• Race/Ethnicity. While some of the proposals restrict statements from applicants about the general concepts of "diversity, equity, and inclusion," ⁴ many proposals specifically restrict statements reflecting beliefs opinions, or experiences as to various individual identity characteristics. Of the proposals falling into this latter category, all of them specifically impose limitations on statements regarding race and ethnicity. ⁵
• Additional Characteristics. Many of the proposals impose restrictions on statements concerning a broad range of individual identity characteristics, such as national origin, ⁶ sex, ⁷ gender identity ⁸ sexual orientation, ⁹ and religion ¹⁰
• Reporting Requirements. Some of the bills include requirements that the institutions report their compliance with the provisions to their state. ¹¹
• Private Right of Action. A number of the proposals explicitly provide for a private right of action ¹² This would allow applicants who believe an institution is violating the legislation - such as by soliciting a prohibited diversity statement - to bring a legal claim against the organization themselves, rather than needing to rely on government enforcement.

Earlier this week, North Dakota became the first state to enact a restriction on diversity statements. The provision, which the State Governor signed into law on Monday, prevents state higher education institutions from requiring students or employees "to endorse or oppose a specific ideology or political viewpoint" and bars adverse treatment if they refuse to "support" or "assent to" numerous concepts, including that individuals are "inherently privileged, racist, sexist or oppressive, whether conscious or subconsciously" due to their race or sex. ¹³ In addition, Kansas'...