Executive order on DEI is too broad and risks costly litigation, ACLU-WV says – WV MetroNews

The American Civil Liberties Union of West Virginia contends Gov. Patrick Morrisey’s executive order on diversity, equity and inclusion is overly broad and will have a chilling effect on speech.

ACLU-WV is calling on Morrisey to rescind the executive order that he issued last week, his first week in office, contending that keeping it would open the state to costly litigation over its constitutionality.

An underpinning of ACLU-WV’s position is that the executive order could impede classroom discussions of societal issues like race, sex and class. The national free speech organization FIRE has made the same point.

“Today is Martin Luther King, Jr. Day, a federal holiday, and it’s important to remember that this order could silence classroom instruction about the life and views of the holiday’s namesake,” ACLU-WV Executive Director Eli Baumwell said.

As written, the order could also prohibit professors from discussing or presenting arguments both for and against a wide range of topics, from the role of women in military combat to race reparations, said ACLU-WV Legal Director Aubrey Sparks.

“This hastily written executive order represents a potential violation of educators’ free speech rights enshrined in the Constitution and upheld by the U.S. Supreme Court,” Sparks said.

“Not only do we believe this order to be unconstitutional, we also can’t overstate the degree to which it is meant to create a state government hostile to people from marginalized communities.”

One of several orders the new governor issued last week is titled “ordering the cessation of DEI.” The acronym stands for diversity, equity and inclusion. It’s a set of policies in business, government and academia aimed at creating a more inclusive and equitable environment.

Social conservatives have taken aim at the policies as a kind of reverse discrimination. That’s the position that Morrisey has taken.

“We’re expressly sending a letter to all of our cabinet officials and agency heads and indicating there should be a review of any potential DEI that may exist within state government,” Morrisey said last week. 

“We want to have a review of recruiting, of retention, of programs, of policies or any issue which might express an inappropriate preference for race, for sex, for national origin, some of these classes that have been used and manipulated in the past.”

Ninety-two percent of West Virginia’s population is White and almost 4% of residents are Black, according to the U.S. Census.

David Fryson, a former vice president for diversity, equity and inclusion at West Virginia University, said the new governor has gotten the matter wrong.

Fryson, appearing on MetroNews’ “Talkline,” said the concept is about providing equitable opportunities for success.

“Equity just means that we give people what they need in order to be successful, and this idea of inclusion means that we are all involved,” said Fryson, who most recently has served as interim vice president for inclusive excellence at Quinnipiac University in Hamden Connecticut.

“Now it is interesting and important to me, in the least diverse state in the nation that the initial focus of this administration is to go after diversity, equity and inclusion programs. I think it’s a travesty.”

Fryson said the movement toward diversity, equity and inclusion policies began in the 1990s after a turn away from affirmative action programs.

“And so DEI was a fallback position to say, ‘Hey, look, we we know that we’re getting to the point where the law is not necessarily going to provide quotas, the law is not going to provide affirmative acts. So DEI is a way that within the bounds of the law that we can allow people to be a part of our society.’

“So you think about it, diversity is not going anywhere. We will continue to be a diverse nation and really even be a diverse state. And diversity truly can be a strength if we manage it, if we are open to one another.”