Curbing DEI Excesses by Limiting Free Speech Is Shortsighted

Efforts to promote diversity, equity, and inclusion, even if well-intentioned, can threaten academic freedom and freedom of speech if taken too far. What I’d call “the spirit of DEI” arguably spurred disruptive protests over conservative speakers at Yale Law School in 2022 and Stanford Law School in 2023 that many of us found deeply disturbing.

But there are proper and improper ways of dealing with DEI overreach in legal academia. And Ed Martin, interim US attorney for the District of Columbia, has himself overreached by attempting to squelch free speech in the classroom. He’s taken an approach he would almost certainly find objectionable if it were aimed at the academic expression of viewpoints he agrees with.

On March 3, Martin sent a letter to William Treanor, dean of Georgetown University Law Center since 2010. Martin wrote, “It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable.”

Martin didn’t bother explaining what exactly he meant by “DEI.” Despite this lack of clarity, he posed two questions to Treanor: “First, have you eliminated all DEI from your school and its curriculum? Second, if DEI is found in your courses or teaching in anyway, will you move swiftly to remove it?”

Martin then declared that “no applicant for our fellows program, our summer internship, or employment in our office who is a student or affiliated with a law school or university that continues to teach and utilize DEI will be considered.”

Treanor, who happens to be a scholar of constitutional law as well as a long-serving dean, responded to Martin with a forceful letter of his own—a vigorous defense of free speech and academic freedom.

The First Amendment “guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it,” Treanor explained. In light of this “bedrock principle of constitutional law,” Treanor wrote to Martin, “the constitutional violation behind [your] threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.”

Treanor concluded his letter as follows: “We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.”

Kudos to Dean Treanor. He stood up for the First Amendment, in the face of a bully’s effort to weaponize the federal government against disfavored viewpoints.

Yes, there are legitimate concerns over DEI excesses in law schools—including Georgetown. As Yale law professor Stephen L. Carter acknowledged, in a column highly critical of Martin, “Georgetown Law hardly covered itself with glory back in 2022, with its shameful treatment of Professor Ilya Shapiro, who quit after a lengthy and, to be frank, anti-academic investigation of… a tweet.”

But sending a letter like Martin’s isn’t the right response. “Federal prosecutors don’t control the classroom,” explained Adam Steinbaugh of the Foundation for Individual Rights and Expression. “This is a dark abdication of the First Amendment.”

Those of us concerned about “wokeness run amok” must remember: DEI won’t always be the target of government efforts to police speech. In the future, the government could crack down against opinions we might find more sympathetic.

If you’re a social conservative, imagine a future Democratic administration with a strong commitment to abortion rights. Would it be appropriate for government officials to send letters to religiously affiliated universities, asking them to confirm that they aren’t teaching pro-life views? If you’d be troubled by that, then you should be troubled by Martin’s letter.

And the Martin letter isn’t the only action of the Trump administration that raises First Amendment concerns for the world of higher education. Over the weekend, Immigration and Customs Enforcement officials entered a Manhattan building owned by Columbia University and arrested Mahmoud Khalil, a Palestinian student activist who led protests at Columbia last spring about the high civilian casualties in Gaza. As a green card holder, Khalil enjoys First Amendment free-speech rights that protect his right to engage in peaceful, lawful protest.

ICE officials told Khalil’s lawyer that the government would be revoking his green card, with a Department of Homeland Security spokesperson claiming that he “led activities aligned to Hamas,” a designated terrorist organization. But at least as of now, there appears to be no legal basis, such as a conviction or even an indictment, for concluding or even suspecting that Khalil has lent material support to Hamas or committed any similarly serious crime.

President Donald Trump won’t be in office forever, but the norms he either establishes or eviscerates will likely endure long after he has left the White House. That’s why we must all stand up for the First Amendment, even—and especially—when it protects speech we might not like.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.”

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