Federal prosecutor threatens law school for teaching DEI in any way.

The Trump administration should not become the new speech police.

Edward Martin, the Trump administration’s Interim U.S. Attorney for the District of Columbia, has sent a letter to William Treanor, dean of Georgetown Law School. The letter asks whether Georgetown has eliminated “DEI” from the school and its curriculum. And it states that Martin’s office will not consider for employment any student who has attended a law school that teaches or promotes DEI.

Here is the relevant portion of Martin’s letter:

It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions:

First, have you eliminated all DEI from your school and curriculum"?

Second, if DEI is found in your courses or teaching in any way, will you move swiftly to remove it?

At this time, you should know 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.

Martin doesn’t bother to define “DEI” or to say what has come, reliably, to his attention that teaches or promotes it. It is clear, though, that Martin isn’t just concerned about the legally problematic portions of the DEI agenda — e.g., race-based admissions policies and racially discriminatory hiring practices. He’s trying to tell that law school what it can’t teach.

This raises obvious concerns about free expression. In my opinion, it also raises concerns about the quality of instruction.

I assume that a course on “race and the law” taught by anyone likely to teach such a course would amount to teaching or promoting DEI. Regardless of whether one likes the content of such a course — I’m not a fan — it provides a perspective on the law that’s interesting and (to some) enlightening.

Students should be able to hear that perspective, if they so choose. A decent regard for free inquiry, as well as free speech, should keep the federal government from forcing law school’s not to offer it.

In this connection, I think it’s relevant to note that, for years, Bill Otis and his wife Lee Liberman Otis taught a course at Georgetown about the conservative legal movement. I’m pretty sure the law school administration had little use for that movement, but it had enough respect for diverse thought to offer students a course about it.

Even so, Georgetown Law School is not a paragon of free expression. It’s a sad day when a Republican administration has less regard for that hallmark of American democracy than a left-liberal law school has.

Nor is Martin’s letter confined to threatening to punish the law school for course offerings that are explicitly about race. Suppose it offers a course or holds a symposium in which the Harvard decision on race-based admissions comes up. If a professor criticizes the majority opinion for finding that diversifying a student body isn’t a compelling interest sufficient to justify taking race into account, that professor has taught or promoted DEI.

The government should not deter law schools and their professors from expressing that point of view. Indeed, by expressing it, a professor serves an important educational interest — providing students with a particular point of view, embraced by a number of Supreme Court Justices past and present, on an important and controversial issue.

And what about a course on discrimination law? The doctrine of “disparate impact” discrimination is embedded in many aspects of that law. In the case of employment discrimination, it is embedded by statute — the Civil Rights Act of 1991.

But disparate impact theory is a cornerstone of the “E” in DEI — equity. It holds that a selection criterion that falls more harshly on blacks than whites (for example) is suspect and must therefore be justified by important business considerations. Thus, a professor who teaches disparate impact theory is teaching DEI. He is also teaching the law.

My reaction to Martin’s letter was that the Georgetown dean should politely tell him to go to hell. A friend suggested this language:

This is a free country and we can say and do what we want to say and do within the bounds of the law and the very broad protections of the United States Constitution. We comply fully with the law and we take great pride in fostering freedom of speech as protected by the First Amendment. Thank you for your letter and your service to our country.

Here, in relevant part, is how Dean Treanor responded (with my comments interspersed):

As a Catholic and Jesuit institution, Georgetown University was founded on the principle that serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical, and spiritual understanding. For us at Georgetown, this principle is a moral and educational imperative. It is a principle that defines our mission as a Catholic and Jesuit institution. Georgetown University also prohibits discrimination and harassment in its programs and activities and takes seriously its obligation to comply with all federal and local laws.

It was probably wise for the dean to lead by talking about religion because the conservative majority on the Supreme Court is very protective of religious liberty — and rightly so.

Your letter challenges Georgetown’s ability to define our mission as an educational institution. It inquires about Georgetown Law’s curriculum, and asserts that your office will not hire individuals from schools where you find the curriculum “unacceptable.” The First Amendment, however, guarantees that the government cannot direct what Georgetown and its faculty teach and how we teach it. The Supreme Court has continually affirmed that among the freedoms central to a university’s First Amendment rights are its abilities to determine, on academic grounds, who may teach, what to teach, and how to teach it.

Right.

This is a bedrock principle of constitutional law — recognized not only by the courts, but by the administration in which you serve. The Department of Education confirmed law week that it cannot restrict First Amendment rights and that it is statutorily prohibited from “exercising control over the content of school curricula.”

Good point. I should note, however, that there’s a big difference between offering law students a course that teaches critical race theory and forcing high school students to take a U.S. history course that promotes the tenets of that theory. I think the Department of Education (or its successor) should be concerned about the latter, but not the former.

Your letter informs me that your office will deny our students and graduates government employment opportunities until you, as Interim United States Attorney for the District of Columbia, approve our curriculum. Given the First Amendment’s protection of a university’s freedom to determine its own curriculum and how to deliver it, the constitutional violation behind this threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.

The reference to Interim U.S. Attorney is the “go to hell” bit.

. . . .We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.

It would have been so much better if Martin had written a letter inquiring about Georgetown’s compliance with the Harvard decision on race-based preferences, instead of wading into the First Amendment thicket, on the wrong side.

It was Donald Trump who said in 2015 that “political correctness is just absolutely killing us as a country.”  It would be most unfortunate if, ten years later, the Trump administration were to become the new speech police.