Anti-DEI Updates: State Legislation and Honeyfund v. DeSantis

At a Glance

• Since January, Utah and Alabama have passed sweeping anti-DEI laws. Similar bills broadly targeting DEI are pending in at least 25 other state legislatures.
• In the Eleventh Circuit, Honeyfund v. DeSantis affirmed a district court’s preliminary injunction on Florida’s “Stop W.O.K.E. Act’s” prohibition on employers mandating workplace DEI training on the ground the prohibition was a content-based speech restriction in violation of the First Amendment. 
• Many outstanding questions remain, especially regarding more innocuous provisions that could have the same effect as outright prohibitions without running into the same First Amendment problems. 

Legal developments in the anti-DEI space continued at a rapid pace in the first quarter of 2024. Since January, two states (Utah and Alabama) have passed sweeping anti-DEI laws. At the same time, courts — notably the Eleventh Circuit in Honeyfund v. DeSantis — have pushed back on anti-DEI laws on First Amendment grounds, and a reconsideration of DEI-related law has lessened the chilling effect the Supreme Court’s decision in Students for Fair Admissions v. Harvard, 600 U.S. 181 (2023), has had on the DEI space. In the background lurk similar bills broadly targeting DEI which are pending in at least 25 other state legislatures with different provisions that raise other questions.

Existing anti-DEI laws in Alabama and Utah broadly define DEI to include programs that make distinctions based on race, color, sex, ethnicity and national origin. Utah also includes sexual orientation or gender identity in their definition of DEI while Alabama uniquely includes religion. Both laws broadly prohibit mandatory DEI statements and training, the use of “DEI characteristics” in employment or educational decisions, and the creation of DEI offices. The laws also create onerous reporting requirements about DEI activities. The Alabama law goes further and prohibits state educational institutions from sponsoring any DEI activities, requiring students or employees to “affirm” DEI concepts, or penalizing students or employees for refusal to affirm DEI concepts. 

At the same time, courts have been paring back aspects of different states’ earlier-implemented anti-DEI laws on First Amendment grounds. The most notable decision is Honeyfund.com Inc. v. DeSantis, 94 F.4th 1272, 1280, 1283 (11th Cir. 2024), which affirmed a district court’s preliminary injunction on Florida’s “Stop W.O.K.E. Act’s” prohibition on employers mandating workplace DEI training on the ground the prohibition was a content-based speech restriction in violation of the First Amendment. Honeyfund makes clear that “nothing in th[e court’s] opinion should be construed as addressing” the Florida law’s prohibitions on “public-school [DEI] instruction that aims to ‘indoctrinate or persuade students to a particular point of view’” and was similarly silent on the question of whether the ruling applied equally to employees in public institutions of higher education. Id. at 1275 n.1. 

Nevertheless, Honeyfund is still significantly relevant to provisions of existing legislation and pending bills. Both Utah and Alabama prohibit mandatory DEI instruction for public higher education employees and students. Once courts decide the remaining public/private distinction issue from Honeyfund, that provision could be found unconstitutional. This is especially salient to the Alabama law as Alabama is part of the Eleventh Circuit. Further, if other circuits adopt this interpretation of the First Amendment’s application, it could imperil the constitutionality of the Utah law as well as other pending bills with similar anti-mandatory training prohibitions in Arizona, Idaho, Kentucky, Mississippi, Missouri, Nebraska, Oklahoma, South Carolina and Tennessee. Beyond those direct applications to analogous provisions, the Honeyfund interpretation could also reach more broadly and invalidate the prohibitions on race-conscious scholarships that were considered in the past legislative sessions in Kentucky, Michigan and Wisconsin.

Honeyfund is part of a broader reconsideration of the limitations of DEI-related activity in the wake of Fair Admissions, which held race-conscious admissions policies violated the Equal Protection Clause of the Fourteenth Amendment. Recently, the vice chair of the Equal Employment Opportunity Commission (EEOC), Jocelyn Samuels, said employers should not view Fair Admissions as imperiling DEI efforts in the workplace because workplace efforts are governed by Title VII of the Civil Rights Act, which was not addressed in Fair Admissions. Samuels also noted Fair Admissions was limited to addressing explicit consideration of race in the admissions context, which implies it may have no bearing on other DEI-related initiatives at schools other than determining the quality of applicants.

Regardless, many outstanding questions remain, especially regarding more innocuous provisions that could have the same effect as outright prohibitions without running into the same First Amendment problems. Both the Utah and Alabama laws, as well as pending bills in many states, create broad state oversight and reporting requirements for DEI-related activities. Similarly, an Indiana law passed this spring, Senate Enrolled Act 202, creates a DEI-specific complaint process for employees and students alike to report perceived violations of “neutrality” across a variety of contexts, including admissions, hiring and tenure. That law has now been challenged on free speech grounds by the American Civil Liberties Union. Such provisions could have an effect on DEI activity similar to outright prohibitions by creating a chilling effect on activity without running into the First Amendment problems Honeyfund addresses.

Overall, while Honeyfund and EEOC Vice Chair Samuel’s statements show the anti-DEI movement has seemingly lost steam relative to the high-water mark of 2023 in the wake of Fair Admissions, significant issues and open questions remain. As current legislation and litigation trends illustrate, DEI-related legal battles do not seem to be abating anytime soon.