In Heterodox Academy’s ongoing review of state legislation, we have found that, as legislatures are grappling with Diversity, Equity, and Inclusion (DEI), they are using approaches that are diametrically opposed, along predictable partisan lines. Even at the basic point of defining what constitutes DEI, legislatures are not on the same page. For example, in South Carolina, DEI has been framed by the legislature as a threat to civil rights, whereas in Illinois, DEI is left undefined by the legislature but presented as protecting civil rights.

The South Carolina legislation, House Bill 3927, (which recently died in committee) is representative of how many Republican-led legislatures are tackling DEI. The bill explicitly defined DEI as “any preferences, mandates, policies, programs, activities, guidance, regulations, enforcement actions, consent orders, or requirements implemented by a public entity that constitutes illegal discrimination on the basis of race, color, religion, sex, or national origin” (emphasis added).

The bill’s articulation of DEI as illegal discrimination is bolstered by its finding section, which states:

…the General Assembly finds that roughly sixty years after the passage of the Civil Rights Act of 1964…institutions of higher education have adopted and actively used dangerous, demeaning, and immoral discriminatory preferences under the guise of so-called ‘diversity, equity, and inclusion’ (DEI) that can violate the civil rights laws of this State and Nation.

Unsurprisingly, given that framing, House Bill 3927 would have prohibited a broad list of DEI practices, such as requiring DEI statements in the hiring of faculty and student admissions, the establishment of DEI offices, and mandatory DEI training for students, faculty, or staff.

In contrast, the State of Illinois’ legislature was considering taking a step to protect DEI practices. Illinois House Bill 3057, which failed to get out of committee, clearly articulated the view that DEI can be a viable form of protecting civil rights and enforcing anti-discrimination law – effectively the opposite of the South Carolina definition:

…State-supported institutions of higher learning may establish, maintain, and implement policies, practices, and requirements for the conduct of the students, faculty, and staff on the campus of the State-supported institution of higher learning that are designed to safeguard students, faculty, and staff from discrimination based on race, creed, color, religion, sex, age, national origin, sexual orientation, or gender identity. The policies, practices, and requirements described in this Section may be developed and administered through an office of diversity, equity, and inclusion… (emphasis added)

If it had passed, Illinois’ bill would not have required state universities to establish DEI programs, but it would clearly have provided some form of legal protection to those that choose to implement them. This is a softer approach than what is proposed in South Carolina HB 3927, because it does not mandate a change in academic policy; rather, it affirms DEI programs as legitimate tools to combat discrimination and foster inclusive environments.

Nevertheless, the Illinois bill represents a stark contrast to how conservative lawmakers view these issues. Both sides of the aisle claim the mantle of protecting civil rights and enforcing anti-discrimination law, yet their policy prescriptions are diametrically opposed. Neither side is consistently doing the harder work of separating lawful methods of promoting diversity from those that are counterproductive and even unlawful threats to open inquiry.

The fact that some institutions engage in questionable DEI tactics like the requiring of diversity statements for hiring or admissions demonstrates that some institutional leadership has been similarly disinterested in sorting the appropriate from the inappropriate. If institutional leaders don’t want lawmakers intervening—even with overly broad bans—a good place to start would be eliminating the most questionable practices on their own.

So where does HxA stand on this? We applaud legislatures that ban the use of DEI statements in the process of hiring and reviewing faculty, recognizing that they are really just a contemporary form of political litmus tests. However, rather than taking all or nothing approaches to DEI, HxA hopes to see legislatures in blue, red, and purple states evaluate each so-called DEI activity individually, and honestly assess whether they are consistent with open inquiry.