Mississippi’s ban on diversity, equity and inclusion programs in public schools remains blocked after a federal judge granted the plaintiffs’ request for a preliminary injunction in an Aug. 18 decision.
The U.S. District Court for the Southern District of Mississippi also denied the defendants’ requests to dismiss the case, calling the defendants’ points “moot.”
“This Court generally agrees with Plaintiffs’ view of the challenged portions of (House Bill 1193).
It is unconstitutionally vague, fails to treat speech in a viewpoint-neutral manner, and carries with it serious risks of terrible consequences with respect to the chilling of expression and academic freedom,” U.S. District Court Judge Henry Wingate wrote in the Court’s decision.
The law, which the Mississippi Legislature approved and Gov. Tate Reeves signed in April, prohibits Mississippi public schools and institutions of higher learning from teaching, creating or promoting diversity, equity and inclusion programs. The Republican-backed law also bans schools from requiring diversity statements or training during hiring, admission and employment processes in educational institutions.
Public institutions are also not allowed to teach or “endorse divisive concepts or concepts promoting transgender ideology, gender-neutral pronouns, deconstruction of heteronormativity, gender theory (or) sexual privilege,” the law says.
H.B. 1193 would prohibit public schools from requiring diversity statements or training in hiring, admission and employment processes at educational institutions.
Preliminary injunctions are dependent upon four qualities: “a substantial likelihood of success on the merits; the irreparable injury to the movants if the injunction is denied; whether the threatened injury outweighs any damage that the injunction might cause the defendant; and the public interest.”
Wingate Highlights Threat to Academic Freedom
Judge Wingate also granted the plaintiffs’ request to add class action claims to the lawsuit, meaning the injunction will apply to teachers, professors and students across the state. The plaintiffs’ lawyers sought the addition after a U.S. Supreme Court ruling in June limited the ability of federal judges to grant sweeping injunctions.
The case will remain preliminarily enjoined until the Court can hold a trial based on the case’s merits and conduct a final review of the case, which the Mississippi Center for Justice said in a press release could take several months. The preliminary injunction does not block other portions of the law, including those that prevent schools from giving preferential treatment based on race, sex, color or national origin and that penalize students or staff for their refusal to embrace DEI concepts.
In his ruling, Wingate wrote that H.B. 1193 is “at odds” with “the public interest of this State.”
“Although Defendants wish this Court to narrow its gaze to the roles of affected persons—whether the speech is public versus private—this Court has delved deeper and looked at the contours of speech prohibition, causing this Court to visit the concept of academic freedom,” the judge wrote.
The defendants are “loudly noncommittal” regarding the matter of academic freedom, and their testimony did not “quiet” any fears the plaintiffs shared regarding the fate of educators’ future careers and employment, Wingate wrote. He said the defendants’ uncertainty about whether the 5th Circuit U.S. Court of Appeals would allow H.B. 1193 to go into effect on appeal under the First Amendment also led to the Court’s decision to block enforcement for now.
During this year’s legislative session, the bill’s author, Mississippi House Rep. Joey Hood, R-Ackerman, claimed it did not pose a threat to free speech.
“We’re not going to restrict anyone’s freedom of speech because that’s guaranteed by the Constitution of the United States of America. … That’s not what it’s about,” he said on Feb. 5. “What it’s about is these institutions that are requiring these kinds of divisive concepts as part of an admissions process or being part of that school. Basically, we’re outlining what the divisive concepts are. We’re not going to mistreat anybody on the basis of race, sex, color, gender—any of those things that I outlined. So students are free to do what students want to do.”
‘The Fight Is Not Over’
The Mississippi Center for Justice wrote in an Aug. 19 press release that the language in H.B. 1193 could mean that public schools are no longer allowed to teach about the Civil War, the Civil Rights Movement, the women’s rights movement, discrimination and similar topics.
“It is an enormous relief that the court has sided with academic freedom, free speech, and due
process in its recent decision,” Deanna Kreisel, an associate English professor at the
University of Mississippi and a member of the United Campus Workers, one of the plaintiffs in the case, said in the press release. “The fight is not over, but at least for the time being, the students of Mississippi can continue to learn in an environment free of ideological constraints and partisan censorship.”
The plaintiffs filed the lawsuit against the legislation in June ahead of the upcoming school year. The legislation became law on July 1. The Court first put its initial temporary restraining order in place on July 20.
Jarvis Dortch, the executive director of the ACLU of Mississippi, which is helping litigate the case, said he was thankful for Wingate’s stance.
“The Court sees the law for what it plainly is—an attempt to stop the proper exchange of ideas within the classroom,” Dortch said in a statement.
Cliff Johnson, a professor at the University of Mississippi Law School and Mississippi director of the MacArthur Justice Center, testified that he and his students often discuss what could be considered “divisive topics.”
Johnson said he did not believe the law would allow him to teach about the First, Fourteenth and Fifteenth Amendments; the court case that paved the way for the internment of Japanese citizens during WWII; portions of the Civil Rights Act; or the murders of Emmett Till and the Rev. Martin Luther King Jr.
“I think I’m in a very difficult position. I can teach my class as usual and run the serious risk of being disciplined, or I could abandon something that’s very important to me,” Johnson testified. “I feel a bit paralyzed.”
Mississippi Attorney General Lynn Fitch’s office argued that public employees do not have First Amendment rights.
“They are speaking for the government and the government has every right to tell them what they need to say on its behalf,” said Lisa Reppeto, an attorney at the state attorney general’s office.
The plaintiffs in the lawsuit are Barbara Phillips; James Thomas; Dawn Zimmerer; L.E. Jibol; United Campus Workers Southeast Local 3821; Madisyn Donley; Alexis Cobbs; Karen Aderer; Women in Science and Engineering; and Fostering LGBTQ+ Advocacy, Resources and Environments. In his ruling, Judge Wingate granted the Mississippi Association of Educators’ request to withdraw from the lawsuit.
The defendants are the Board of Trustees of State Institutions of Higher Learning, the Mississippi Community College Board, the Mississippi State Board of Education and the Mississippi Charter School Authorizer Board.
Associated Press reporter Sophie Bates contributed to this report.