Attack of the DEI exterminators

It has become apparent to attorneys in our law firm that the new anti-DEI provisions in state and federal laws are attacking our clients.

Private not-for-profit clients, public schools, churches, private businesses with certain contract provisions in their agreements, and private colleges all had been the targets.

DEI — diversity, equity and inclusion — has been the subject of personnel policies ever since affirmative action fell into disfavor after a U.S. Supreme Court decision.

Recently, Congress, at the behest of President Trump, included a ban on DEI policies and contract provisions in the comprehensive budget bill it adopted

During negotiations on a state budget, and long after public hearings and floor debate were done, the NH Legislature slipped an anti-DEI provision into the state budget that Gov. Ayotte signed.  It prohibited DEI policies in any New Hampshire governmental entities, including public schools.

Weeks later, the attacks came.  First, a prominent not-for-profit client with governmental funding contacted the firm to have us conduct a thorough review of all of its policies and contracts to be sure it could certify to the federal government that it complied with the law.

This involved great expense to the client.  Next, a church, the first of many from several denominations, contacted us since it had received a letter from the federal government asking it to certify to the agency that had funded a grant assisting it in upgrading its security system, that it had no DEI policies or contracts.

The government traditionally does not subsidize churches, but a provision of the Biden infrastructure bill had provisions providing aid to churches’ security systems.

Churches have become concerned about what the government may view as DEI advocacy in sermons from the pulpit, and whether by accepting aid and agreeing to certify agreement with policies, the church is becoming subservient to the government, or an instrument of it, which is what the First Amendment’s religion clause was designed to prevent.

In one of the strangest examples of the anti-DEI state efforts, private college clients received letters from outgoing Education Commissioner Frank Edelblut, telling them they were deemed “public schools” covered by the state legislation, and required, along with other clearly public schools, to certify compliance by Sept. 5.

There were a number of questionable issues raised by the letter. First, the statute required certification by a later date. Second, the connection claimed to make private colleges “public” was claimed to be the scholarship aid given to students at the colleges by a state program funded by earnings on the “Unique Scholarship Plan,” which is the New Hampshire 529 Plan allowing parents and others to put private money away for children.

How private money given to students, not colleges, could turn the schools the students attend into public colleges was not explained. Finally, the provision seemed to be at odds with several statutory provisions in state law which state clearly that private colleges are not “public.”

The Civil Liberties Union, National Education Association and a number of other plaintiffs, on behalf of public school teachers and schools, brought an action in federal court to enjoin the state law on a number of bases.  In a temporary restraining order dated Sept. 4, the court enjoined enforcement of the law.

In her decision, Judge Landya McCafferty said the requirement for certification by Sept. 5 had no basis in the law, which called for compliance by Sept. 30.  She cited the draconian penalties for noncompliance, which were complete withholding of state aid to the schools. The order was temporary, and the judge will revisit the underlying issues later.

The basic issue with the state law is that the definition of DEI is so amorphous as to defy understanding about what it does and does not cover.  It therefore would be unconstitutional under both state and federal constitutions as “void for vagueness.”  Although rules are supposed to be promulgated to define it, no rules have been proposed.  Finally, as written, the statutory provision appears to violate the First Amendment rights of schools and other entities covered.

Judge McCafferty, in an earlier case this year, found other anti-DEI efforts illegal and enjoined them in the case National Education Association v. US Department of Education, which was decided in April after the federal department sent a letter instructing educators to “end DEI.”

Should not the basic question be why the undebated provision was allowed to pass in the first place?

Brad Cook is a Manchester attorney. The views expressed in this column are his own. He can be reached at bradfordcook01@gmail.com.