Anti-DEI Attacks on Georgetown Law Violate the First Amendment

(Bloomberg Opinion) — I wasn’t sure whether to laugh or cry when I heard about the letter to Georgetown Law School Dean William Treanor from Ed Martin Jr., interim US attorney for the District of Columbia. In the letter, dated Feb. 17 and emailed to Treanor on March 3, Martin declared that he wouldn’t hire any of the private school’s students unless it dismantled its DEI programs and — more ominously — stopped teaching DEI in the classroom.

Here’s an administration that roared into the White House in part on a promise to sweep away a heavy-handed bureaucracy that was said to be imposing ideological requirements on campuses, showing the world that its own bureaucrats have the same objective.

Dean Treanor responded that Martin was violating the First Amendment by pressuring the school over what was taught. This is true, but it is insufficient. The secret sauce that gives academic freedom its savor is the absolute conviction that neither school administrators nor outside regulators nor anyone in between, should purport to control what happens in the classroom.

@Georgetown Law School threatening to investigate the school if it did not scrub its policies and curriculum of diversity and inclusion initiatives.Here is the Dean’s response.… pic.twitter.com/RIDXDftncZ— James Martin, SJ (@JamesMartinSJ) March 7, 2025

Martin’s diktat has a distinct flavor of McCarthyism: “It has come to my attention that Georgetown Law School continues to teach and promote DEI. This is unacceptable.” The passive voice does nothing to mask the meaning. The entity to whom teaching and promoting DEI is unacceptable is the government.

I recognize that some readers worry that DEI, as practiced, involves racial discrimination. I’ve previously responded to that concern in this space. So, let’s focus instead on Martin’s concern about what the Georgetown faculty is teaching.

The threat is explicit: “No applicant” for a job or internship in his office will be considered if the applicant is affiliated with “a law school or university that continues to teach or utilize DEI.”

I’ve long argued that it’s antithetical to the academic ideal when university administrators purport to interfere with the operation of the classroom by telling professors which opinions they are allowed to voice and which they are required to avoid. I’ve said before and will say again that campus officials who believe that’s their job shouldn’t be campus officials.

And yet similar commands from government officials are in many ways worse. It’s true that we live in an unfortunate era of what we might call epistolary regulation, what with left and right, depending on the party in power, alternating in friendly but menacing “Dear Colleague” letters from the Department of Education. (Because why go through legally required rulemaking rigamarole when you can just correspond collegially with colleagues?)

To make matters worse, Martin’s letter to Georgetown is no masterpiece of legal craftsmanship. In particular, it’s fuzzy about exactly what it purports to forbid. I have no idea what it means to “teach … DEI” — and I wonder whether Martin does. Suppose I tell my students one day, “A lot of people are against DEI these days, but I’m mostly for it.” Suppose I say, “Diversity, properly understood, is crucial to democracy.” Am I outside the bounds of what Martin thinks I should be teaching? The letter provides no clue.

Yet one of the many reasons to cherish academic freedom is precisely so that classroom teachers need not worry about such questions. Even the current leadership of the Education Department has been at pains, through two iterations of its most recent “Dear Colleague” letter on DEI, to make clear that it has no intention of restricting the freedom to teach.

Yes, recent years have seen frequent and indefensible efforts by campus administrators to chill academic speech, often by enforcement of rules involving language every bit as fuzzy. Indeed, 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. However, neither Georgetown’s past mistakes nor the wider campus tilt against the free exchange of ideas justifies Martin’s heavy-handed efforts to punish the institution for what happens in the classroom.

I’m second to no one in my objections to the ideological stultification of higher education. But my concern for freedom isn’t limited to narrow-minded, left-leaning campus bureaucrats. Narrow-minded right-leaning government bureaucrats are at least as bad and, given their powers of office, potentially worse.

And there’s a broader lesson here. We live in an era when too many people of every political persuasion seem to believe that the reason for holding positions of authority is to tell other people what they may and may not do … or say. In public power and private power, we see the same constantly: more rules, more orders and more narrowing of liberty.

As for Martin’s unfortunate missive, maybe it’s all just grandstanding, the clever product of an ambitious executive branch functionary trying to impress an Oval Office occupant said to be susceptible to flattery. True, that motive would hardly excuse the letter’s recklessness. But I prefer it to the alternative. Because if the US attorney for DC genuinely believes that public servants possess the authority to order universities to stop teaching certain subjects on pain of seeing their students blacklisted from government employment, maybe it’s time he went back to law school.

I hear Georgetown has a great one.

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Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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