Curbing DEI Excesses By Limiting Free Speech Is Dangerous—And Dumb
Georgetown Law Dean Bill Treanor stands up for the First Amendment.
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A version of this article originally appeared on Bloomberg Law, part of Bloomberg Industry Group, Inc. (800-372-1033), and is reproduced here with permission. The footnotes contain material that did not appear in the Bloomberg Law version of the piece. You can think of the footnotes as “bonus content” for Original Jurisdiction subscribers.
Efforts to promote diversity, equity, and inclusion (DEI), even if well-intentioned, can threaten academic freedom and freedom of speech if taken too far. What I’d call “the spirit of DEI” arguably spurred disruptive protests over conservative speakers at Yale Law School in 2022 and Stanford Law School in 2023 that many of us found deeply disturbing.
But there are proper and improper ways of dealing with DEI overreach in legal academia. And Ed Martin, interim U.S. attorney for the District of Columbia, has himself overreached by attempting to squelch free speech in the classroom. He’s taken an approach he would almost certainly find objectionable if it were aimed at the academic expression of viewpoints he agrees with.
On March 3, Martin sent a letter to William Treanor, dean of Georgetown University Law Center since 2010. Martin wrote, “It has come to my attention reliably that Georgetown Law School continues to teach and promote DEI. This is unacceptable.”
Martin didn’t bother explaining what exactly he meant by “DEI.” Despite this lack of clarity, he posed two questions to Treanor: “First, have you eliminated all DEI from your school and its curriculum? Second, if DEI is found in your courses or teaching in anyway, will you move swiftly to remove it?”
Martin then declared 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.”
Bill Treanor, who happens to be a scholar of constitutional law as well as a long-serving dean, responded to Martin with a forceful letter of his own—a vigorous defense of free speech and academic freedom.
The First Amendment “guarantees that the government cannot direct what Georgetown and its faculty teach and how to teach it,” Treanor explained. In light of this “bedrock principle of constitutional law,” Treanor wrote to Martin, “the constitutional violation behind [your] threat is clear, as is the attack on the University’s mission as a Jesuit and Catholic institution.”1
Treanor concluded his letter as follows: “We look forward to your confirming that any Georgetown-affiliated candidates for employment with your office will receive full and fair consideration.”
Kudos to Dean Treanor. He stood up for the First Amendment, in the face of a bully’s effort to weaponize the federal government against disfavored viewpoints.
Yes, there are legitimate concerns over DEI excesses in law schools—including Georgetown. As Yale law professor Stephen L. Carter acknowledged, in a column highly critical of Ed Martin, “Georgetown Law hardly covered itself with glory back in 2022, with its shameful treatment of Professor Ilya Shapiro, who quit after a lengthy and, to be frank, anti-academic investigation of… a tweet.”
But sending a letter like Martin’s isn’t the right response. “Federal prosecutors don’t control the classroom,” explained Adam Steinbaugh of the Foundation for Individual Rights and Expression. “This is a dark abdication of the First Amendment.”2
Those of us concerned about “wokeness run amok” must remember: DEI won’t always be the target of government efforts to police speech. In the future, the government could crack down against opinions we might find more sympathetic.
If you’re a social conservative, imagine a future Democratic administration with a strong commitment to abortion rights. Would it be appropriate for government officials to send letters to religiously affiliated universities, asking them to confirm that they aren’t teaching pro-life views? If you’d be troubled by that, then you should be troubled by Martin’s letter.
And the Martin letter isn’t the only action of the Trump administration that raises First Amendment concerns for the world of higher education. Last weekend, Immigration and Customs Enforcement officials entered a Manhattan building owned by Columbia University and arrested Mahmoud Khalil, a Palestinian student activist who led protests at Columbia last spring about the high civilian casualties in Gaza. As a green card holder, Khalil enjoys First Amendment free-speech rights that protect his right to engage in peaceful, lawful protest.
ICE officials told Khalil’s lawyer that the government would be revoking his green card, with a Department of Homeland Security spokesperson claiming that he “led activities aligned to Hamas,” a designated terrorist organization. But at least as of now, there appears to be no legal basis, such as a conviction or even an indictment, for concluding or even suspecting that Khalil has lent material support to Hamas or committed any similarly serious crime.3
President Donald Trump won’t be in office forever, but the norms he either establishes or eviscerates will likely endure long after he has left the White House. That’s why we must all stand up for the First Amendment, even—and especially—when it protects speech we might not like.
UPDATE (10:25 p.m.): The original title of this post was “Curbing DEI Excesses by Limiting Free Speech Is Shortsighted,” carried over from the Bloomberg Law version of the column. But at the suggestion of a reader, I changed it to something more pointed.
Invoking Georgetown “mission as a Jesuit and Catholic institution” was a shrewd move on Treanor’s part. As Kathryn Rubino noted at Above the Law, “the letter is constructed in a way to be unique Kryptonite to conservatives, by leaning into the religious institution’s First Amendment protections…. Treanor goes hard for all the things that make Jesuit Catholicism good. Jesuits’ beliefs include global justice, peace, and dialogue, and the order has a storied tradition of educational excellence.” (Allow me to include a shoutout to my own Jesuit alma mater, Regis High School, in New York City.)
Yes, I realize that some observers feel that Georgetown Law could do a better job of advancing its mission as a Catholic law school. It didn’t make the list of top 10 law schools for devout Catholics, which one prominent Catholic legal academic, Professor Stephen Bainbridge, found unsurprising.
That’s a debate for another day. For present purposes, imagine how negatively conservatives would react if a future Democratic administration devoted to advancing LGBTQ rights tried to pressure a more devoutly Catholic law school into renouncing, say, Catholic Church teachings on homosexuality (perhaps by accusing the school of violating anti-discrimination laws).
For additional commentary on the Martin letter, see this New York Times column by David French and this Slate piece by Dahlia Lithwick and Mark Joseph Stern.
Note my reference to what we know “as of now.” At a court hearing yesterday in an unrelated matter (Perkins Coie’s legal challenge to Donald Trump’s executive order targeting the firm), Chad Mizelle, chief of staff at the U.S. Department of Justice, stated that “there are a lot of facts in [the Mahmoud Khalil] case that are tricky and not all public” (as reported by Kyle Cheney of Politico).
But let’s say new evidence does emerge tying Khalil to Hamas (a possibility I don’t rule out). As noted by the conservative Wall Street Journal editorial board, “Mr. Khalil may deserve deportation, but he also deserves due process”—i.e., he should be given the opportunity to defend himself before he loses his green card or gets deported.
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As an Alum of Georgetown Law, I am glad Dean Treanor pushed back forcefully to this gross overstep by the government.
That said, Georgetown Law has been quite uniquely (as an administration/faculty, not a student body) horrible on freedom of expression. It would be wonderful for them to reembrace any values around diversity of thought that has been so lacking.
Thank you, David! It is especially necessary and proper at this time to again illuminate and emphasize the first words of our Constitution. We are now plagued with actions of federal (purported) public servants attacking people for exercising the rights and freedoms secured by the First Amendment. Their open and notorious attacks evidence a huge collective blind spot in our view of our Constitution.
For about a year, federal judges have been attacking students and universities for exercising their freedom of speech and press and freedom of association (in clear and flagrant violation of the First Amendment). Now, the president and U.S. Department of Justice attorneys are attacking students, universities, judges, individual attorneys, entire law firms, and many federal employees for the same reasons. Our purported public servants are making a sham and a shambles of our Constitution.
If SCOTUS ever even considers the first words of our Constitution, it almost always is to essentially (and clearly erroneously) dismiss them as a mere “preamble.” SCOTUS justices very seldom have acknowledged that the so-called Preamble has profound fundamental substantive significance. But that has been changing.
Every current SCOTUS justice (with the possible exception of Justice Kavanaugh) and many recent past justices authored or joined in opinions (majority, plurality, concurring or dissenting) emphasizing the profound principle underlying our entire Constitution, which was evidenced most strikingly by the first words of our Constitution--the sovereignty of the people. SCOTUS justices’ occasional honorable mentions of the first words of our Constitution are important but egregiously inadequate.
Coincidentally, in 2026 we will celebrate the 250th anniversary of our Declaration of Independence and its crucial second paragraph (one people declaring our independence from all tyranny and abuses of power by people in power).1 But right now, America needs a national dialogue that truly does as Chief Justice Marshall admonished speaking for a unanimous SCOTUS in 1819 in McCulloch v. Maryland: “we must never forget, that it is a constitution we are expounding.”
We have, collectively, too often forgotten that our Constitution is the written elaboration of how one people formed one nation. We have forgotten that our Constitution is a written elaboration on and establishment of the legal and political principles and precautions stated in our Declaration of Independence. We have forgotten how We the People established and asserted our sovereignty (generally, the personal sovereignty of each person over himself or herself, and also the political sovereignty of the people collectively over all public servants).
In McCulloch, Chief Justice Marshall speaking for a unanimous SCOTUS also elaborated on the most important principles of “the people” that made us a nation:
“The government of the Union” is “emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and [exclusively] for their benefit. This [national] government is acknowledged by all to be one of enumerated [limited] powers. [ I]t can exercise only the powers granted to it . . . . . That principle is now universally admitted.”
As Justice Alito (joined by Justices Scalia and Thomas) put it in a dissenting opinion in Obergefell v. Hodges in 2015: “In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny.”
The vital words that the Founders and Framers chose to introduce our Constitution were designed to introduce the American sovereign. Justice James Wilson (the Founder and Framer who is perhaps most responsible for the fact that our Constitution begins with the words “We the People”) explained the profound significance of what many public servants (including many SCOTUS justices for hundreds of years) routinely dismissed as a mere "preamble."
Justice Wilson in 1793 in Chisholm v. Georgia emphasized that the first and foremost separation of powers in our Constitution is between the sovereign people and our public servants: “ ‘The PEOPLE of the United States’ are the first personages introduced” by our Constitution. “To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. . . . [T]hose, who ordained and established that Constitution" rightfully could "have announced themselves ‘SOVEREIGN’ people of the United States."
The first words of our Constitution introduce American sovereigns and emphasize that “We the People” did “ordain and establish” our “Constitution” and our “Union” to “establish Justice” and “secure the Blessings of Liberty to ourselves.” Thinking about the sequence of introducing personages, a clear pattern emerges. Even the structure of Articles I, II and III emphasize the sovereignty and supremacy of the people. Our Constitution introduced, first, the People, second, our directly-elected representatives (Congress), third, our indirectly-elected representative (the president), and, last, the unelected judges of SCOTUS and lower courts.
Article VI emphasized that our “Constitution” and federal “Laws” that were “made in Pursuance thereof” (by our representatives who may be held accountable to us in elections) and “Treaties” are “the supreme Law of the Land; and the Judges in every State” (all judges throughout our nation) are “bound thereby.” It also emphasized that the first, foremost and constant duty (and loyalty) of all legislators and “all executive and judicial Officers, both of the United States and of the several States” is “to support this Constitution.”
The words of every article in the Constitution further emphasized the sovereignty and supremacy of the people over our public servants. In Article I, the sovereign people emphasized that nobody in federal government could exercise any power that was not “necessary and proper for carrying into Execution” the “Powers vested by this Constitution in the Government of the United States” (for the purposes stated in the Preamble). In Section 1 of Articles I, II and III, the sovereign people “vested in” (delegated only limited powers to) our public servants in “Congress,” in and under the office of the “President,” and on the “one supreme Court” and “inferior Courts” that “Congress” was delegated the power to “ordain and establish.”
The Ninth Amendment expressly emphasized a principle that was implicit in the original Constitution: all “rights” are “retained by the people” regardless of whether any right (ever) is included in any “enumeration in the Constitution.” The Tenth Amendment did the same. It expressly re-emphasized that We the People “by the Constitution” merely “delegated to the United States” certain limited “powers” and “prohibited by it [our Constitution] to the States” certain “powers” (e.g., in Article I, Section 10 and Amendments XIII, XIV, XV, XIX, XXIV and XXVI) and we “reserved to the States” certain powers and “reserved” to “the people” all residual “powers.”
All the foregoing established and confirmed (repeatedly) that We the People clearly did not vest any power in any federal public servant to abridge any right or freedom in the First Amendment. Many times, the Founders and Framers emphasized that our Constitution vested no such power.
In emphasizing that our original Constitution established that We the People did not even need to reserve any right that is now secured by our Bill of Rights, Alexander Hamilton in The Federalist No. 84 asked: “why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
The First Amendment emphasizes rights and powers that the people necessarily exercised to create, empower and restrain state, as well as federal, governments. So the First Amendment emphasizes rights and powers that the people necessarily retained when We the People created our nation, e.g., freedom of thought, expression, association and assembly. No public servant was delegated in the U.S. Constitution or could possess under any state constitution any power to injure any of us for exercising our First Amendment rights or freedoms.
We the People need to be more clear and more emphatic in reminding our public servants of their proper place (as Article III emphasizes) “under this Constitution” and “the Laws of the United States.”