Utah’s Promising New Anti-DEI Law

Roughly a decade after the movement for diversity, equity, and inclusion, or DEI, began to spread in American higher education, a political backlash is here. The Chronicle of Higher Education has tallied 80 bills since 2023 that aim to restrict DEI in some way, by banning DEI offices, mandatory diversity training, faculty diversity statements, and more. Eight have already become law, including in Texas, Florida, North Carolina, Tennessee, North Dakota, and Utah. The worst of these laws violate academic independence and free speech by attempting to forbid certain ideas in the classroom.

Utah’s Equal Opportunities Initiatives, or H.B. 261, which was signed into law in January, is more promising. It attempts to end the excessive and at times coercive focus on identity in higher education while also trying to protect academic freedom with carve-outs for research and course teaching.

The law prohibits universities from giving individuals preferential treatment or discriminating against them based on race, color, ethnicity, sex, sexual orientation, national origin, religion, or gender identity. It forbids offices that help students from excluding anyone based on their identity. It bans mandatory campus training sessions that promote differential treatment. It prohibits “discriminatory practices,” such as ascribing “values, morals, or ethical codes, privileges, or beliefs to an individual” because of their identity.

[Conor Friedersdorf: The DEI industry needs to check its privilege]

Yet it makes real compromises with DEI supporters. Race-based cultural centers, like the Black Cultural Center at the University of Utah, will stay open. And Utah does not plan to fire all DEI staffers, as happened at the University of Florida––the law preserves the funding that DEI offices had while mandating that they refocus and rebrand as centers that attend to the needs of any student having trouble at college.  

Even so, the law’s mandate to disregard race, gender, and other traits, rather than treating people differently based on their identity, is polarizing. Many of its critics believe that education policy must elevate identity to be “equitable”––that the just response to systemic racism, disparities in graduation rates, and the culture of a state that is almost 80 percent white and socially conservative, is targeted initiatives for Black, brown, Indigenous, and LGBTQ+ students.

But that position forecloses the possibility of trying new approaches to discover whether they could be better. The DEI framework is often expensive to implement, dogmatic, and thin on evidence that it helps students thrive. Utah’s attempt to rein in DEI’s excesses while investing in plausible alternatives might just represent the best way forward.

Diversity, equity, and inclusion is a confounding trio of complex concepts, each of which has a positive connotation but no agreed-upon definition.

Like most Americans, I support many goals associated with DEI, such as admitting students of diverse backgrounds to college, ensuring their equal access to a good education, and eliminating any bigotry they are subject to because of their personal or group identity.

But among people who value diversity, not everyone agrees with the ways DEI advocates attempt to promote and manage it. For example, many DEI supporters urged doing away with the SATs, a move some institutions now regard as a mistake (the test, a good predictor of student success, is less vulnerable to being gamed by affluent applicants than essays or extracurricular activities). And many academic departments require DEI statements from prospective hires, even though some professors see such statements as ideological litmus tests. Put simply, some DEI work advances important goals that most Americans support. Other initiatives take unrigorous, intrusive, or unpopular stances, fueling liberal and conservative backlashes.

[Conor Friedersdorf: The hypocrisy of mandatory diversity statements]

I could hear this tension in the way the Utah bill’s supporters talked about diversity. Republican Katy Hall was a sponsor of the legislation. A nurse at Ogden Regional Medical Center who ran for a seat on Utah’s part-time legislature in 2022, she told me that she supports the values of diversity, equal opportunity, and inclusion. But she grew concerned about political litmus tests and viewpoint discrimination after speaking with friends whose children were applying to graduate programs in Utah. They were thrown by requests for essays articulating a commitment to DEI.

As Hall campaigned, she began looking into ideological coercion on campus and how to stop it. Once elected, she had meetings with faculty members to learn more. “At first, I thought I was going to be speaking to the last few conservatives on campus,” she told me. “Then I kept hearing variations on the same story: ‘I’m a Democrat, a lifelong liberal, I believe in social justice, but what’s gone on in the last four or five years has gone too far and created a toxic environment, where instead of viewpoint diversity, everyone is tiptoeing on eggshells.’”

I, too, found faculty members who felt that way about DEI and were eager for a new way to advance diversity on campus. Maximillian Werner, a longtime University of Utah professor, told me that helping marginalized students is a perennial goal of his, but that he has never been certain of the best means to do it, and he doesn’t think anyone else is either. More recently, however, he has felt pressure to adopt the DEI framework in full, as if its superiority is now a settled question.

He worries that faculty and students have over time become less willing to engage rigorously with complex subjects. After 18 years at the institution, “I have never seen anything like this,” he said. “If you do not adopt a particular viewpoint that you haven’t even had time to think about, you’re a pariah. I’ve never been so put off by anything as this way of looking at the world. I hope proponents of DEI take some responsibility for the backlash.” He supported the legislation, publishing an op-ed defending it in The Salt Lake Tribune. He told me he hopes the new law will free faculty and students “to shed the activist mentality and get back to an academic mentality, where you’re cooperating to study hard problems with nuance.”

Opponents of the bill think DEI’s emphasis on identity is worth keeping. Karen Kwan, a Democrat in the Utah Senate, holds a doctorate in education from the University of Utah. While citing various provisions in the law that she dislikes, she mentioned one that prohibits asserting in an administrative program or mandatory training that “meritocracy is inherently racist or sexist” or that “socio-political structures are inherently a series of power relationships and struggles among racial groups.”

Decades of research “show that meritocracy is a myth, especially for people of color” and that “we have systems that have institutional racism and sexism,” she argued. “I don’t know how we can legislate against facts.” She appreciated that Utah’s professors will remain free to teach students about meritocracy and power relationships. But she fretted that students will now feel a disconnect between facts that they learn in the classroom and what their institution communicates to the world.

Kwan also worries the law might stop vital instruction. She favors mandatory diversity training for medical students, citing racial disparities in health outcomes and conditions like sickle cell anemia that disproportionately affect Black Americans.

The bill’s critics also debate the intentions of its supporters. A University of Utah professor who believes that identity should factor into college administration likened skeptics of DEI in higher education to skeptics of the Black Lives Matter movement who reacted with the rejoinder “All lives matter.” That counter-slogan was an effort to “reorient the conversation around this fantasy where we’re all equal and we all have equal opportunity,” argued the professor, who asked to be kept anonymous for fear of retaliation against himself or his department. He understands efforts to replace DEI as similarly motivated. “I think of it as the ‘all students matter’ charade,” he said. “Students with different abilities or sexual orientations and colored skin have different experiences, and they’re not all equal. Some of our students face biases and microaggressions that other students don’t face.”

He added that, in Utah, “we’ve got a whole office for students with disabilities. We’ve got programs for veterans. I see DEI offices as just another one of these many programs around a university that are trying to find, ‘Where are our vulnerable students and what can we do to make the environment more friendly for them?’”

Some Democratic officials in Utah were even more harsh.

The legislation is “extreme, divisive, and unnecessary,” State Representative Brian King, a Democrat from Salt Lake City, declared after Utah Governor Spencer Cox signed it. “Is this who we are?”

That reaction would strike me as more appropriate if it were aimed at a figure like Florida Governor Ron DeSantis, who demonizes DEI advocates. His legislative efforts don’t just prevent state bureaucrats from using DEI; they infringe on the First Amendment rights of faculty and students. In contrast, Cox is much less inclined to vilify others––he emphasized to me that most DEI advocates are good people who are trying to help. And the legislation that he signed respects free speech.

[Conor Friedersdorf: Ron Desantis’s speech policing could hurt the right too]

Cox argues that there is no contradiction in supporting diversity, opposing bigotry, and opposing DEI. However well intentioned DEI advocates might be, he told me, years in politics have taught him that emphasizing immutable characteristics ultimately helps extremists to stoke tribalism. He worries that DEI empowers such bad actors.

“Utah is trying to chart a better course,” he said. “Those efforts will disproportionately help minority students,” but without excluding, dividing, or stoking backlash, “which is worse for everyone.”

Supporters and opponents of the new law are still debating it, but many at Utah’s colleges aren’t partisans in that debate––they are intent on making the best of its outcome. Their perspectives struck me as especially constructive, perhaps because focusing on how to serve students and faculty of all identities and political perspectives spurred them to wrestle with competing ideas and arrive at original insights.

As dean of the College of Humanities at the University of Utah, Hollis Robbins has been working with department heads and search-committee chairs to comply with provisions that forbid DEI statements in hiring. She has found that although some faculty members oppose the law, and others have questions or concerns, it “has not caused a lot of alarm” overall. She said that many “old-school liberals” who want to treat everyone equally “felt monitored rather than supported by the DEI bureaucracy, and feel the law will be freeing.”

She believes that DEI arose in response to real shortcomings, like the exclusion of worthy job candidates by faculty who overrelied on established peer networks. She also compares DEI guidelines on diversity in hiring to “training wheels” that offered needed help when introduced but that have become less necessary. The framework’s most valuable insights are now uncontroversial parts of the process and here to stay. “After 10 years of discussing diversity, equity, inclusion,” she said, “we don’t need a bureaucratic structure to tell us to keep our minds open.”

And she wonders whether the new law will give Utah students more leeway to reimagine what identity means absent a bureaucracy that dictates which identity characteristics are most significant.

“There are so many ways in which students have been ahead of DEI offices, whether you’re talking about gender identities or neurodivergence,” she mused. “Students are always challenging bureaucratic apparatuses––lately some are even changing their names from semester to semester, leaving registrars saying, Wait, how can I keep track of you? If DEI and its categories are removed, I wonder if they will have more freedom to express themselves in ways we haven’t yet imagined.”

Danya Rumore is a professor at the University of Utah’s law school who researches and practices conflict resolution. She sees her vocation as being “an impartial third party who focuses on problem solving” and does not support or oppose the law. She’d rather help supporters and opponents alike to solve problems across their differences. In our interview, she described some of the DEI framework’s benefits and shortcomings. Maintaining diverse campuses where no one feels excluded is important, she observed, and people on both sides of the DEI debate agree, but lose sight of their shared goals amid disputes about how best to achieve them.

[Conor Friedersdorf: The hypocrisy of mandatory diversity statements]

In her telling, concepts like “privilege” are too frequently invoked in ways that encourage students to step back rather than to step up. “I encounter students who’ve gotten the message that privilege means ‘I should feel guilty and refrain from taking up space,’” she said, “rather than use my privilege to help create a more just world.”

Disentangling DEI could prove useful as Utah’s public institutions chart a new course, she told me: “We’ve created a lot of issues for ourselves by bundling equity with diversity and inclusion.” Diversity and inclusion is about creating institutions where people of diverse backgrounds and experiences “can come together and be included.” A different question is how to respond “to the fact that not all people begin life at the same place on the playing field.” Although she believes both questions are important, and even related, clarity about how they are distinct from each other can lead to better discussions and policies.

Ultimately, Utah’s law is best understood as a worthy experiment. Efforts to rein in DEI bureaucracies on campus are overdue, given how often counterproductive methods are deployed in their name. And Utah’s law isn’t just reining in DEI’s excesses. It is trying out new ways to help students from diverse backgrounds thrive.

Of course, worthy experiments can fail, and people on all sides of the debate should pay attention to the effects the law has on the state’s college campuses. Will ending DEI affect undergraduate applications, enrollment, graduation rates, racial disparities, student satisfaction, and more? Utah will generate quantitative data on such questions. Studying the answers could tell us whether an identitarian approach like DEI is worth conserving or whether universalism can perform as well or better—exactly the kind of knowledge that universities ought to generate.