From Judge Matthew McFarland (S.D. Ohio) Thursday in Rice v. Schell; the analysis seems basically correct to me:
[T]he Advance Ohio Higher Education Act (“S.B. 1”) … touches upon, among other things, the discontinuation of offices and orientation programs related to diversity, equity, and inclusion (“DEI”) at public universities. Miami University is one such state university that has closed certain committees, entities, and programs related to DEI — both before and after S.B. 1 became effective.
A tenured professor now seeks judicial relief to reinstate these entities and programs on constitutional and statutory grounds. This request raises several questions, including the fundamental question of who decides which committees, entities, and programs a public university should maintain. As for the limited question presented here, the record does not demonstrate that Plaintiff—an individual professor unimpeded in his classroom teaching, scholarship, research, or publications—can proceed with his claims in federal court….
The Court starts by outlining what is at issue in this case 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 on institutional autonomy grounds or otherwise. 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 abridgment of a professor’s speech 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.
Two fundamental and intertwined questions set the stage. First, whose speech is truly at issue here? Second, as often embodied in various fields of the law, this case involves a quintessential question of “who decides?”—specifically, who decides which entities and programs a public university ought to maintain as a public university? …
[T]his case does not encompass a situation in which a university is stymieing a professor’s speech within one of its programs or entities. Defendants, by Plaintiff’s own admission, have not interfered with Plaintiff’s in-class teaching, scholarship, research, or publication of DEI-related topics.
Rather, Plaintiff seeks a judicial decree to dictate the maintenance of specific programs and entities themselves. Certainly, a line of precedent confirms that the government may not command—at the threat of punishment—the particular speech of professors engaged in their core academic functions…. [But] Plaintiff fails to offer authority for the notion that his First Amendment rights include the ability to dictate how Miami University ought to determine which programs and entities to maintain as a university.…
Miami University’s institutional discontinuation of the relevant programs and entities amounts to its own speech to “determine[ ] the content of the education it provides” in order to “promote its own policies” and mission…. “[W]hen the government speaks, … it is, in the end, accountable to the electorate and the political process for its advocacy.” Put another way, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination” in such circumstances….
Here’s a summary of the relevant provisions of S.B. 1:
[S.B. 1] 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:
- Any orientation or training course regarding diversity, equity, and inclusion [unless an exception applies];
- The continuation of existing diversity, equity, and inclusion offices or departments; and
- Establishing new diversity, equity, and inclusion offices or departments.
The statute further provides that each state university shall affirm and declare, inter alia, that:
- its primary function is to practice, or support the practice, discovery, improvement, transmission, and dissemination of knowledge and citizenship education by means of research, teaching, discussion, and debate;
- to fulfill the function described in [the preceding sentence], the state institution shall ensure the fullest degree of intellectual diversity;
- that faculty and staff shall allow and encourage students to reach their own conclusions about all controversial beliefs or policies and shall not seek to indoctrinate any social, political, or religious point of view;
- that it will not endorse or oppose, as an institution, any controversial belief or policy, except on matters that directly impact the institution’s funding or mission of discovery, improvement, and dissemination of knowledge;
- that the state institution will not encourage, discourage, require, or forbid students, faculty, or administrators to endorse, assent to, or publicly express a given ideology, political stance, or view of a social policy, nor will the institution require students to do any of those things to obtain an undergraduate or post-graduate degree; and
- that no process or decision regulating conditions of work or study, such as committee assignments, course scheduling, or workload adjustment policies, shall encourage, discourage, require, or forbid students, faculty, or administrators to endorse, assent to, or publicly express a given ideology or political stance.
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.” State universities that fail to comply with S.B. 1 may be subjected to loss or reduction of funding.
Elsewhere, the statute provides that “[n]o state institution of higher education shall provide or require training for any administrator, teacher, staff member, or employee that advocates or promotes any of the following concepts:”
- One race or sex is inherently superior to another race or sex.
- An individual, by virtue of his or her race or sex, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
- An individual should be discriminated against or receive adverse treatment solely or partly because of the individual’s race.
- Members of one race cannot nor should not attempt to treat others without respect to race.
- An individual’s moral standing or worth is necessarily determined by the individual’s race or sex.
- An individual, by virtue of the individual’s race or sex, bears responsibility for actions committed in the past by other members of the same race or sex.
- An individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race or sex.
- Meritocracy or traits such as hard work ethic are racist or sexist, or were created by members of a particular race to oppress members of another race.
- Fault, blame, or bias should be assigned to a race or sex, or to members of a race or sex because of their race or sex.
Here’s plaintiff’s connection to the matter:
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 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. Particularly relevant here, Plaintiff is expected to engage in service to his department and division….
The court likewise rejected plaintiff’s equal protection and due process claims, as well as various statutory and common-law claims.
Ann Yackshaw of the Ohio AG’s office represents defendants.
