Henry Wingate, a US district judge, has temporarily paused the enforcement of Mississippi’s new law prohibiting diversity, equity and inclusion (DEI) programs from the state’s public schools and universities. On Sunday, he approved a request for a temporary order sought by the Mississippi Association of Educators (MAE) and on behalf of students, educators, student organizations and parents in the state. The plaintiffs, represented by the ACLU of Mississippi and the Mississippi Center for Justice, argue that certain provisions of the law violate the first and 14th amendments.
House Bill 1193, which passed in April, prohibits establishing or maintaining DEI offices, programs, trainings or activities. The law also outlines “divisive concepts”, and prohibits “promoting transgender ideology, gender-neutral pronouns, deconstruction of heteronormativity, gender theory, sexual privilege or any related formulation of these concepts”.
The temporary restraining order will remain in effect until the court rules on the plaintiffs’ motion for a preliminary injunction. If the preliminary injunction is successful, the law would not be enforced while litigation occurs.
Some in the state have already begun working to comply with the law, something Wingate cited in his order.
The Mississippi Institutions of Higher Learning (IHL) voted unanimously in a closed-door executive session on 18 July to approve one new policy and advance another that work to enforce the law, according to the Clarion-Ledger. The IHL and state board of education had previously voted to approve policies to create a complaint and investigation process for violations. Local school boards also have to create their own policies.
“Institutions have spent the intervening months attempting to interpret and implement the statute, often erring on the side of caution by canceling or defunding programming that arguably falls within its prohibitions,” he wrote. “This prolonged period of uncertainty has deepened the chilling effect. As the statute’s enforcement provisions – particularly the threat of funding withdrawal after two violations – have become more imminent, the pace and breadth of programmatic shutdowns have accelerated.”
The law, plaintiffs argue, is broad and vaguely defined, something Wingate noted in his ruling.
“For example, the law forbids the promotion of ‘divisive concepts’ without clearly identifying what constitutes ‘promotion,’ or which views are considered ‘divisive,’” the ruling reads. “It bans programming that ‘increases awareness or understanding of race, sex, color, gender identity, sexual orientation, or national origin,’ which, say Plaintiffs, could encompass virtually all educational material in subjects such as history, sociology, gender studies, or literature. This, continue Plaintiffs, leaves institutional actors with no objective standards, fostering arbitrary enforcement and pervasive self-censorship.”
The law has already had a chilling effect.
One affidavit cited in the ruling was from the president of an LGBTQ+ group at Mississippi State University, which said that administrators removed the organization from its diversity center home, cut its funding and restructured the organization – all to comply with the bill. The president of the organization said that members had begun to censor their own speech.
The director of student development at Tougaloo College, an HBCU, said that she had suspended longstanding programs that support LGBTQ+ students and faculty to ensure that the institution does not violate HB 1193 and lose funding.
The former director of the Fannie Lou Hamer National Institute on Citizenship and Democracy at Jackson State University said that the institute was defunded and effectively ended, despite its success, because, according to the ruling, of “the vague prohibitions under HB 1193 and institutional fear of non-compliance”.
“The public benefits from robust academic freedom and the cross-pollination of diverse viewpoints,” Wingate wrote. “Suppressing constitutional speech through vague prohibitions and the specter of financial retribution does not serve the public good – it undermines it. An over-broad, constitutionally borderless law should be the target of a well-aimed injunction to promote, rather than impair, the interests of Mississippi citizens, the integrity of its institutions, and the constitutional principles on which this republic stands.”
