By Joshua Arnold

Diversity, Equity, and Inclusion (DEI) is a blight on higher education, but it has a simple and effective kryptonite: state legislatures with the courage to stand up and say, “Not with our money!” Florida cracked this code last year, and now they’ve lent the weapon to their northern neighbor. The Alabama legislature on Tuesday passed a bill (SB 129) that could slash up to $16.2 million annually in DEI spending from university budgets, enough to give about 1,350 underprivileged Alabamans a free ride in Tuscaloosa.

SB 129 passed the Alabama Senate (26-7) on February 22 before passing the Alabama House (75-28) on Tuesday.

Alabama Governor Kay Ivey (R) then signed the bill Tuesday, declaring she would not “allow a few bad actors on college campuses … to go under the acronym of DEI, using taxpayer funds, to push their liberal political movement counter to what the majority of Alabamians believe.”

Under SB 129, no “state agency, local board of education, or public institution of higher education” may sponsor a DEI program, maintain a DEI office or department, or authorize or expend any funding for a “divisive concept.” They may not require students, employees, or contractors to “affirm, adopt, or adhere to a divisive concept,” voice their private opinions or lobby divisive concepts, or even attend a DEI training. They may not penalize anyone for refusing to “support, believe, endorse, embrace, confess, or otherwise assent to a divisive concept or diversity statement.”

One term’s repeated use may cause you to wonder, what is a “divisive concept”? The Alabama legislature devoted a ninth of the bill to answering that very question, or more specifically to listing eight examples. Divisive concepts, they defined, are “any of the following”:

• “That any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior.
• "That individuals should be discriminated against or adversely treated because of their race, color, religion, sex, ethnicity, or national origin.
• "That the moral character of an individual is determined by his or her race, color, religion, sex, ethnicity, or national origin.
• "That, by virtue of an individual’s race, color, religion, sex, ethnicity, or national origin, the individual is inherently racist, sexist, or oppressive, whether consciously or subconsciously.
• "That individuals, by virtue of race, color, religion, sex, ethnicity, or national origin, are inherently responsible for actions committed in the past by other members of the same race, color, religion, sex, ethnicity, or national origin.
• "That fault, blame, or bias should be assigned to members of a race, color, religion, sex, ethnicity, or national origin, on the basis of race, color, religion, sex, ethnicity, or national origin.
• "That any individual should accept, acknowledge, affirm, or assent to a sense of guilt, complicity, or a need to apologize on the basis of his or her race, color, religion, sex, ethnicity, or national origin.
• "That meritocracy or traits such as a hard work ethic are racist or sexist.”

These concepts, of course, are undeniably divisive — both because people’s opinions are divided over whether they are true and because the concepts themselves erect divisions where none should exist. Because of their divisive nature, these concepts are inconsistent with America’s pluralistic, melting-pot society. Therefore, it is inappropriate for public schools and universities, creatures of that society, to endorse and promote these concepts on the taxpayers’ dime.

The divisive nature of these concepts was further displayed in the partisan rancor the bill provoked. “If supporting inclusion becomes illegal in this state,” declared Birmingham Mayor Randall Woodfin (D), “you might as well stand in front of the school door like Gov. Wallace.” This remark obscured the bill’s main issue, namely preventing Alabama schools from teaching “that any race … is inherently superior or inferior,” a concept with which Wallace would have agreed.

Despite its goal of preventing racism, Alabama House Minority Leader Anthony Daniels (D) called the bill “super racist” and lamented that, in enacting it, “the state of Alabama committed a sin.” Daniels argued that SB 129 “targets speech based upon the content.” In the terminology of federal courts, this is called viewpoint discrimination, which is a constitutionally impermissible infringement on free speech.

In August 2022, a federal district court blocked Florida from implementing a similar provision in the Stop WOKE Act on the grounds that it infringed on the free speech rights of students and faculty. (Florida’s countermove was to simply zero-out all DEI funding for universities, which the same judge allowed them to do.)

Despite the passing similarities to Florida’s case, the Alabama bill simply does not infringe on speech. “Free speech in post-secondary education is absolutely a must,” Alabama state Representative Ed Oliver (R) told The Washington Stand. “The only thing we’re trying to prevent is compelled speech — and not just for students, it protects faculty too.” As it relates to K-12 education, the bill’s aim is “to prevent proselytizing little kids, to put up guardrails that protects both the left and the right,” said Oliver, who has been working on this bill for four years. “There’s no place for divisive concepts below 7th grade.”

Skeptics don’t have to take Oliver’s word for it. “Simply read the things the bill does not do,” he protested. A quarter of the bill’s length spells out 11 different things the bill does not do. For instance, the bill does not prevent DEI-focused student groups or privately-funded DEI programs, nor does it require anything that would place Alabama schools in violation of federal law or accreditation standards — some potentially major loopholes. It also does not interfere with sex-segregated housing, athletics, or social organizations; in fact, the bill requires colleges and universities to ensure that restrooms are distinguished according to biological sex.

Of relevance to the free speech issue, the bill does not “inhibit or violate the First Amendment rights of any student or employee.” This language provides prosecutors and courts with a guide to interpreting the law, consistent with the author’s intent, so that it would not be abused to discriminate against speech and so that it would not fail a legal challenge.

Despite this clear recognition of free speech protections, unnamed Democrats still thought it could have a “chilling effect” upon speech — another legal phrase courts have used to find laws unconstitutional. A “chilling effect” occurs when a veiled or vague threat forces people to self-censor rather than risk possible punishment.

For instance, one conservative professor at a public university in Alabama declined to comment for this article due to possible retaliation by the university. It’s ironic that the proponents of woke authoritarianism are fearmongering about a “chilling effect” when universities have already created one for conservatives.

“I can’t see how it would have any chilling effect at all,” Oliver responded. “It’s fairly straightforward. We tried to write at 3rd grade level. I don’t see any chilling effect.”

Perhaps the biggest argument for the bill was that DEI programs don’t work based on their own stated goals, Oliver asserted. Black students comprise less than 12% of the student body at the University of Alabama and less than 5% of the student body at Auburn University. Meanwhile, at Troy University, which has no DEI program, black students comprise roughly a third of the student body.

Nevertheless, “We still think it was a bad bill,” Alabama state Senator Bobby Singleton (D) reiterated. “It’s an unnecessary bill, a bill based on concepts that are really not happening in Alabama.” Ah yes, that inconsistent duo of arguments made only by those who know they are losing the public debate: it’s not happening, and banning it would be devastating.

For those willing to listen to the bill’s proponents, the whole motivation for its passage was to reduce division, not create more. “We worked with everybody who wanted to participate,” said Oliver. “We tried to make a bill that everybody could agree on.”

“We are all made in God’s image, and our unique qualities should be celebrated,” affirmed Alabama State Senator Greg Reed (R). “However, while we are each unique, we have more that unites us than divides us. … Opportunities for togetherness is what this legislation tries to achieve.”

Joshua Arnold is a senior writer at The Washington Stand.