The Volokh Conspiracy
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May Government Refuse to Hire Notre Dame Students, Because Notre Dame Teaches and Promotes Anti-Abortion Ideology?
No? Then how can government refuse to hire Georgetown alumni, so long as Georgetown "teach[es] and promote[s] DEI"?
Edward R. Martin Jr., the acting head federal prosecutor in D.C., wrote this letter to the dean of Georgetown law school Feb. 17 (though it apparently was re-sent Monday, and the Georgetown dean responded yesterday):
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 its 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.
Now let's imagine, as a thought experiment that, a California high-level government official (there are plenty of deep Blue officials in the country as well as deep Red ones)—call him Drawde Nitram—wrote a similar letter to the President of Notre Dame:
It has come to my attention reliably that Notre Dame continues to teach and promote anti-abortion views. This is unacceptable. I have begun an inquiry into this and would welcome your response to the following questions:
First, have you eliminated all anti-abortion teaching from your school and its curriculum?
Second, if anti-abortion teaching is found in your courses or teaching in anyway, 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 anti-abortion views will be considered.
Such government action, it seems to me, would clearly violate the First Amendment, either as to the fictional Nitram or the very real Martin.
[1.] To begin with, the government's "refusing to hire" employees because of their constitutionally protected speech generally violates the First Amendment, at least unless that speech is likely to be sufficiently disruptive to workplace functioning. See, e.g., Monteiro v. City of Yonkers (2d Cir. 2018); Juarez v. Aguilar (5th Cir. 2011); Thaddeus-X v. Blatter (6th Cir. 1999) (en banc). Line prosecutors, like other government employees, are generally protected by the First Amendment. See, e.g., Chrzanowski v. Bianchi (7th Cir. 2013). (Indeed, in Garcetti v. Ceballos (2006), the Court upheld the demotion of a prosecutor for his speech, but only because that particular speech was part of his job; if Ceballos' speech had been said in his capacity as citizen rather than as employee, it would have been protected, again unless it was sufficiently disruptive.) And of course the First Amendment protects adhering to ideological positions as well as speaking about them.
[2.] The D.C. Circuit has endorsed the view that the First Amendment employment rules also apply to volunteers. Thus, even if the fellows and interns are unpaid, they are still protected by the First Amendment against retaliation based on First-Amendment-protected activity. And Martin's/Nitram's letter of course covers "employment" and not just internships or fellowships.
[3.] Thus, to take it one step at a time,
- The U.S. Attorney's office, or a California government department, can't categorically refuse to hire even people who personally adhere to "DEI" views (whatever exactly that means in Martin's letter) or to "anti-abortion views."
- Nor can the government refuse to hire people who have taken courses in which those views are taught, since listening to speech is protected by the First Amendment.
- Nor can the government refuse to hire people who have joined groups that express those views, since expressive association is protected by the First Amendment.
- Nor can the government refuse to hire people who are going to or have gone to universities in which those subjects are taught; such actions as a student would be protected by the right to listen and by the right to engage in expressive association.
The Martin/Nitram policies would therefore violate the First Amendment rights of the job candidates who are discriminated against because of the candidates' association with Georgetown/Notre Dame.
[4.] And the policies would also violate the First Amendment rights of Georgetown/Notre Dame as well. Universities are themselves speakers. The Martin/Nitram letters would tend to reduce the universities' audiences, by threatening retaliation against people if they become or continue to be their students (or otherwise "affiliated" with the universities).
The most relevant recent case on this is NRA v. Vullo (2024), where NRA alleged that New York financial regulators threatened banks and insurance companies with retaliation unless they reduced or cut off their financial ties to the NRA. The Supreme Court held that, if those allegations were proved, this would mean that the New York authorities violated the NRA's rights (even though the threatened retaliation would have directly operated on the NRA's business partners, and only indirectly affected the NRA):
[The Director of the Department of Financial Services] was free to criticize the NRA …. She could not wield her power, however, to threaten enforcement actions against [Department]-regulated entities in order to punish or suppress the NRA's gun-promotion advocacy.
The same would apply when government authorities threaten to retaliate against a university's students because of the university's viewpoint. Martin/Nitram are free to criticize universities that teach DEI or anti-abortion views. They could not wield their power, however, to threaten not to hire the universities' students or other affiliates in order to punish or suppress the universities' advocacy.
[5.] To be sure, the government has a great deal of authority to punish or suppress universities' constitutionally unprotected discriminatory conduct. If the letter only asked Georgetown whether, for instance, it was violating Title VI under Students for Fair Admissions by discriminating based on race in admitting students, and threatened retaliation against the university if it continued to violate Title VI, that would have been fine.
Indeed, Title VI itself involves a threat of retaliation (withdrawal of federal funds, and authorizing of private lawsuits enforced through federal courts) for universities' illegal race discrimination. I wouldn't support a government employer punishing students for discriminatory action by their universities. But I tentatively doubt that such refusal to hire students who are going to schools that illegally discriminate would be unconstitutional.
But here it's clear that the letter is focusing not on possibly discriminatory admission decisions, but on what Georgetown "teach[es]" and "promote[s]" (presumably in the speech sense of "promote"), and what is included in "its curriculum" and "courses or teaching." That's targeting First-Amendment-protected speech, not Title-VI-prohibited conduct.
[6.] Finally, note that President Trump's Executive Order related to DEI in education doesn't go this far. That order aims at preventing "discrimination based on race, color, religion, sex, or national origin," and thus apparently at "DEI" in the sense of preferences in admission, contracting, or hiring.
It expressly targets "dangerous, demeaning, and immoral race- and sex-based preferences under the guise of so-called 'diversity, equity, and inclusion' (DEI) … that can violate the civil-rights laws of this Nation." It "order[s] all agencies to enforce our longstanding civil-rights laws and to combat illegal private-sector DEI preferences, mandates, policies, programs, and activities." It orders "the Attorney General and the Secretary of Education" to "issue guidance to … all institutions of higher education that receive Federal grants or participate in the Federal student loan assistance program … regarding the measures and practices required to comply with Students for Fair Admissions, Inc." And it expressly adds,
This order does not prevent State or local governments, Federal contractors, or Federally-funded State and local educational agencies or institutions of higher education from engaging in First Amendment-protected speech.
This order does not prohibit persons teaching at a Federally funded institution of higher education as part of a larger course of academic instruction from advocating for, endorsing, or promoting the unlawful employment or contracting practices prohibited by this order.
The Martin/Nitram letters don't target discriminatory actions; they target the teaching of certain viewpoints. It's hard to see how they could possibly be consistent with the First Amendment.
