No First Amendment Violation in Ohio Closing DEI-Related Offices and Committees

From Rice v. Schell, decided two weeks ago by Judge Matthew McFarland (S.D. Ohio), but just posted on Westlaw a few days ago:

Plaintiff Darryl Rice serves as a tenured and endowed associate professor of management for the Farmer School of Business at Miami University in Oxford, Ohio. For over a decade, Plaintiff has taught courses such as Diversity and Cross-Cultural Management, participated in Diversity, Equity, and Inclusion ("DEI") programming, and contributed to entities like DEI-based committees at Miami University. In April 2025, Miami University began to wind down certain programs and entities related to DEI. Specifically, the following entities were eventually discontinued: (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's Across-the-Divide Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations. For purposes of Miami University's Tenure Track Guidelines, "service" obligations include "activities which contribute to the University's and/or the campus's mission," serving on committees, and providing continuing education programs if they are not already incorporated within the "teaching" category.

Miami University explained to Plaintiff that these closures were mandated by the Advance Ohio Higher Education Act ("S.B. 1"). That being said, Miami University began the process of closures and reorganization before S.B. 1 officially took effect. The Court pauses here to highlight particularly relevant portions of S.B. 1. This legislation commands that "the board of trustees of each state institution of higher education shall adopt and the institution shall enforce a policy" prohibiting, among other things, the following:

(1) Any orientation or training course regarding diversity, equity, and inclusion [unless an exception applies];

(2) The continuation of existing diversity, equity, and inclusion offices or departments; and

(3) Establishing new diversity, equity, and inclusion offices or departments….

Moreover, the statute reads: "Nothing in this section prohibits faculty or students from classroom instruction, discussion, or debate, so long as faculty members allow students to express intellectual diversity." …

Plaintiff sued, claiming that the law violated, among other things, the First Amendment, but the court disagreed:

It … proves helpful to contextualize this matter by emphasizing what is at issue and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the Government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving allegations of a professor's speech being stymied in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events….

In the watershed case of Garcetti v. Ceballos (2006), the Supreme Court held "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The majority in Garcetti, however, left open whether this analysis "would apply in the same manner to a case involving speech related to scholarship or teaching." The Sixth Circuit spoke on this precise question years later in Meriwether v. Hartop (6th Cir. 2021), by holding that "professors at public universities retain First Amendment protections at least when engaged in core academic functions, such as teaching and scholarship." The term "core academic functions" has since been extended to encompass—at least as to the facts in one particular case—a professor's panel remarks that stemmed from his scholarship and subject of expertise.

On the one hand, Defendants assert that Plaintiff's participation in the DEI-related activities does not constitute teaching, scholarship, or "core academic functions" as contemplated in Meriwether. It is worth noting that Plaintiff confirmed during the hearing that his allegations do not address his teaching, scholarship, or research. Instead, Plaintiff contends that his participation in the DEI-related entities amounted to core academic functions because Miami University's policy lists "professional and institutional service and committee assignments" as among the "primary duties" of tenured faculty. This line of reasoning might suggest that "professional and institutional service and committee assignments" are part of Plaintiff's official duties as a tenured professor. However, without more, it does not necessarily follow that such official duties are "core academic functions, such as teaching and scholarship." …

Plaintiff relies on Meriwether. The facts of that case are quite distinct, however. The professor in Meriwether brought suit because the university compelled him to use certain in-classroom speech (i.e., the preferred pronouns of a student) at the threat of discipline. Accordingly, Meriwether involved "a professor's in-class speech to his students" and thus implicated the quintessentially core academic function of teaching students within the classroom. Here, Plaintiff does not contend that his in-class speech has been restricted in any way…. And, even beyond the classroom, Plaintiff does not allege that he has been compelled or barred from speaking. Rather, Plaintiff argues that Defendants have violated his First Amendment rights by discontinuing certain committees, university-created entities, and programs….

Here, Miami University created certain programs, committees, and entities but recently decided to discontinue them. Plaintiff specifically names (1) the Office of Transformational and Inclusive Excellence, (2) the Farmer School of Business DEI Service Committee, (3) the Center for Student Diversity and Inclusion, (4) Miami Regional's Center for DEI, (5) the Department of Management DEI Service Committee, (6) Miami University's DEI Conference, (7) the Office of Transformational and Inclusive Excellence Newsletter, (8) the Inclusive Excellence Faculty Fellows Program, (9) the DEI Mastermind Program, (10) the Diversity and Inclusion Networking Event, (11) DEI Professional Development Day, as well as other activities that Plaintiff had used to fulfill his service obligations….

[T]he record remains undeveloped as to the precise nature of these entities and the extent of Plaintiff's participation. Nuance in this realm deserves attention because "the First Amendment must always be applied in light of the special characteristics of the environment in the particular case." Since Plaintiff has not provided sufficient allegations and legal reasoning to demonstrate how discontinuation of his preferred university programs and entities amounts to a violation of his First Amendment rights, he has not shown a strong likelihood of success…..

Ann Yackshaw (Ohio AG's office) and Heather Van Hull, Richard L. Creighton Jr., and Christo Valantou Fosse (Keating Muething & Klekamp) represent the defendants.