The Non Sequiturs in a Suit Challenging Illinois’ Nonprofit DEI Disclosure Requirement
The folks who, very belatedly, claim fidelity to a color blind, merit-based society have filed another lawsuit in their self-described effort to eliminate the vestiges of racial discrimination “root and branch.” American Alliance for Equal Rights claims that mandating nonprofit DEI disclosure is the same as mandating DEI. The logic articulated in the suit has me baffled. Here is a summary from the Courthouse News Service:
In a federal lawsuit filed in Chicago on Tuesday, a nonprofit group argues that a new Illinois diversity-affirmation law violates the First Amendment. The American Alliance for Equal Rights, a nonprofit group led by conservative legal activist Edward Blum, claims the law pushes nonprofits to “discriminate” when selecting their board members. “That discrimination is by design: The law’s sponsors drafted SB 2930 to ‘encourage more diversity’ in the nonprofit sector, and Illinois’ governor signed it for that very reason,” the alliance writes in its 17-page complaint. The law, Senate Bill 2930 — which Democratic Illinois Governor J.B. Pritzker approved at the end of last June — requires certain nonprofits to publicly list the aggregated demographic information of their directors and officers online. This includes information on the directors’ and officers’ “race, ethnicity, gender, disability status, veteran status, sexual orientation and gender identity.” “The aggregated demographic information shall be accessible on the corporation’s publicly available website for at least three years after it is posted,” the law states.
I blogged about SB 2930 last year. I didn’t have much use for it then and I don’t now. It’s window-dressing around a cracked window. But AAER’s suit is still worth fighting. I have not quite worked out the logic but here is where it stands so far in my mind.
There is a pretty good argument that states may no longer mandate diversity, equity, and inclusion. Let’s just be honest about it. But Students for Fair Admissions doesn’t mean the state may not mandate disclosures and even advocate for DEI. Government may mandate disclosures for public consumption and government may advocate for things it cannot mandate. Theoretically, at least, government speech is the voice of the center and the center is allowed to participate in public debate just like anybody else under the admittedly problematic government speech doctrine. One supposes that Blum and his American Alliance for Equal Rights might agree. In this case they assert that government may not require others to make government’s argument. And that by forcing nonprofits to make DEI disclosures, government is forcing nonprofits to endorse a viewpoint. That seems to be AAER’s best argument. But it’s a weak one that requires a logical leap from disclosure to mandate. AAER makes the leap blindly and without a safety net if you ask me. It asserts that Illinois is, by mandating disclosures, “compels” nonprofits to adopt DEI policies government may not mandate. Here are excerpts from the complaint:
II. SB 2930 was designed to discriminate.
19. One of the reasons SB 2930 compels speech is to promote discrimination. According to the law’s main sponsor, SB 2930’s “goal is to nudge foundations and big nonprofits to diversify their boards.” Illinois Playbook, supra (remarks of Sen. Johnson). Other legislators echoed that claim, explaining that SB 2930 ensures that a “diverse range of communit[y] nonprofits [are] handled by a diverse range of people.” Indeed, that pressure to hire minorities based on their demographics (including race) was the law’s central “aim.”
20. Governor Pritzker signed the bill for the same reason. By “requir[ing] nonprofits to publicly report the aggregated demographic information about their boards,” the Governor explained, SB 2930 “encourage[s] nonprofits to reflect the diversity of the communities they support.” And by encouraging nonprofits to hire with an eye towards race, SB 2930 “will help ensure that nonprofit boards better reflect the populations they serve.”
21. To the law’s proponents, the law achieves its demographic goals through coercion. By requiring nonprofits to publicly divulge their demographic data, a proponent of SB 2930 explained, the public can “assess the diversity of foundation boards.” And if a board isn’t sufficiently “diverse,” the public can pressure those nonprofits “to ensure that their leadership aligns with community demographics.” Governor Pritzker made the same point when he signed SB 2930: By publicizing a nonprofit’s racial “statistics,” community leaders can “assess each nonprofit’s” racial breakdown and “implement strategies” to change them. That pressure campaign wasn’t lost on observers either.*
Disclosure requirements are typically adopted so the public can assess, decide and even “pressure,” by withholding patronage. Government hopes the public will “do the right thing” with the information, but it doesn’t require one choice or another. AAER just doesn’t want the public to know. It fears that people will engage in market-place pressure to achieve an outcome AAER thinks is anathema to a merit based society. But AAER can’t have it both ways. It can’t insist on freedom from government mandate and at the same time insist on prohibitions against informed individual choice. Something like that, anyway. I need to think it through a little bit more.
The bigger leap, of course, is the one made by the Supreme Court in Students for Fair Admission. AAER’s implicit assertion is that permitting (though not mandating) private parties to adopt DEI as a matter of good business or even social justice is just like government permitting private parties to refuse to hire a protected class. That will always be an obvious logical fallacy.
darryll k. jones