First Page
377
Abstract
No one would have thought that a Supreme Court ruling striking down affirmative action in higher education would affect private employment. However, the ruling in Students for Fair Admissions v. Harvard did exactly that. Corporate employers’ efforts to foster diversity, equity, and inclusion (DEI) were immediately pushed to the forefront of the political battlefield. In the eyes of Republican lawmakers and politicians, DEI efforts were akin to affirmative action, and therefore unconstitutional in the wake of Harvard. Their solution to this problem involved passing anti-DEI legislation and policies which restricted or eliminated employer’s DEI efforts under the guise of upholding the United States Constitution. This Note argues that the solution in and of itself was unconstitutional. In the world of corporate employment, DEI initiatives are expressive speech protected by the First Amendment. Legislation or policies which restrict discussion of topics involving DEI or Critical Race Theory restrict speech of a particular viewpoint. Viewpoint based discrimination is subject to strict scrutiny. This Note suggests a broad First Amendment framework which is applicable to anti-DEI legislation or policies to guarantee the speech deserves the proper Constitutional protection.
Recommended Citation
W. M. Blee,
Corporate Employment and the First Amendment Shield Against Anti-DEI Legislation,
20 Brook. J. Corp. Fin. & Com. L.
377
(2026).
Available at:
https://brooklynworks.brooklaw.edu/bjcfcl/vol20/iss2/4
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