After two days of spirited courtroom testimony and arguments earlier this week, U.S. District Judge Henry Wingate said he expects to issue his ruling before August 17, when a temporary restraining order pausing enforcement of the law is set to expire.
House Bill 1193 prohibits state funds from being used to maintain DEI offices or programs. It also prohibits schools from engaging with or promoting a list of “divisive concepts.”
The plaintiffs are asking for a classwide preliminary injunction that would apply to all students and educators in the state’s public education system.
Plaintiffs argue law will chill speech, hurt students
Attorneys for the plaintiffs argue HB1193 amounts to a viewpoint-based restriction on speech in violation of the First Amendment and that multiple provisions are unconstitutionally vague and overbroad.
A major point of contention is the law’s ban of “diversity training” which is defined as educational efforts “that focus on increasing awareness or understanding of issues related to race, sex, color, gender identity, sexual orientation or national origin." Those challenging the law argue that provision could apply to basic, course-relevant classroom instruction, like covering the Civil Rights Movement in a U.S. History class.
“You can't say it's okay to talk about religion, it's ok to talk economics, but you can't talk about race or sex, even though they've played their own roles in how things get shaped in the history of our state and our country,” said Rob McDuff, an attorney with the Mississippi Center for Justice.
During an evidentiary hearing Tuesday, witness testimony was used to substantiate their argument that HB1193 is already causing educators and students to self-censor, cancel events, and avoid discussions on social issues.
Cliff Johnson, Director of the MacArthur Justice Center at the University of Mississippi School of Law, told the court he would be uncomfortable teaching the 13th-15th Amendments of the U.S. Constitution under the law because they involve race.
Johnson also thinks the law would prevent classroom conversations that prepare students for the real world. He used one example where two of his law students had a robust debate over whether or not certain policing practices are racist.
“What happens in those spirited classroom discussions is far more important than some lecture I give on a Supreme Court opinion,” Johnson said. “I mean, that's where learning happens.”
Also testifying was L.E. Jibol, a parent with two young children in Jackson public schools. Her children are biracial, and Jibol says they regularly have to navigate questions about their racial identity.
“I've really appreciated how the school and their teachers have made them feel very safe and helped them when questions come up in the classroom,” Jibol said. … “And I'm really concerned that their teachers may not be able to offer that support that they've offered them.
Jibol says she and her husband are considering leaving Mississippi if HB1193 is allowed to stand. She fears her children would receive a substandard education under the law and that would cost them job opportunities later in life. Johnson shares that same fear for his students.
“If you're upset about DEI, the notion that the remedy for that is to put students at a competitive disadvantage and deny them a robust education, it's just lost on me as to why anyone would think that's a good move for Mississippi and for our students,” Johnson said.
Amy Coronado, a graduate student at the University of Southern Mississippi, was the only student voice heard in Wingate’s courtroom Tuesday. She testified as an officer of the student group Women in Science and Engineering (WISE), and says the law threatens the group’s existence and its mission to help members of underrepresented groups who want to work in STEM fields.
“I want to provide resources and help people, and the anxiety and stress of planning events is usually made up for by the joy of seeing that help come to fruition,” Coronado said. “The additional burden of the anxiety caused by this law makes it much more difficult to bring those events into fruition and feel that joy.”
State argues fears are overblown, First Amendment doesn’t apply
Lisa Reppeto, an attorney with the Mississippi Attorney General’s Office, argued that the view shared by Johnson and others is not a reasonable interpretation of the law because it contains an exemption for course content and scholarly research tied to academic accreditation standards.
Citing the Supreme Court's ruling in Garcetti v. Ceballos, the state is also arguing that Mississippi educators, as public employees, do not enjoy First Amendment protections when acting in their official roles.
“If you don’t want to be subject to those rules, you should probably find another job,” Reppeto said.
In the majority opinion for the Garcetti case, Justice Anthony Kennedy wrote that they were not deciding if the ruling would apply to a case involving speech related to scholarship or teaching.
In addition, the state is pushing back on the scope of the proposed injunction. They argue it should apply only to the named plaintiffs, not to educators and students statewide. McDuff said that would be an unworkable solution, as it would necessitate separate classes to be held for the few students in that group.
“Whether you're a student in K-12 or you're a student at college or university, you have a right to continue to learn the things that have consistently been taught up until the passage of this unconstitutional law,” McDuff said.
If Judge Wingate grants a preliminary injunction, the state will likely appeal that ruling to the U.S. Fifth Circuit Court of Appeals and the DEI law will remain on hold throughout that process.
