From Judge Matthew McFarland (S.D. Ohio) Thursday in Rice v. Schell; the analysis seems basically correct to me:
[T]he Advance Ohio Higher Education Act ("S.B. 1") … touches upon, among other things, the discontinuation of offices and orientation programs related to diversity, equity, and inclusion ("DEI") at public universities. Miami University is one such state university that has closed certain committees, entities, and programs related to DEI — both before and after S.B. 1 became effective.
A tenured professor now seeks judicial relief to reinstate these entities and programs on constitutional and statutory grounds. This request raises several questions, including the fundamental question of who decides which committees, entities, and programs a public university should maintain. As for the limited question presented here, the record does not demonstrate that Plaintiff—an individual professor unimpeded in his classroom teaching, scholarship, research, or publications—can proceed with his claims in federal court….
The Court starts by outlining what is at issue in this case and—perhaps just as importantly—what is not at issue. This is not a case involving allegations that the government is compelling particular speech. This is not a case in which a university itself brings suit to enjoin a law on institutional autonomy grounds or otherwise. This is not a case in which students allege constitutional violations. This is not a case in which a plaintiff has been threatened with disciplinary action for certain speech. This is not a case involving abridgment of a professor's speech in the classroom or on the campus green. Rather, this dispute centers around a professor who brings suit to enjoin a university to reestablish certain committees, programming, and events.
Two fundamental and intertwined questions set the stage. First, whose speech is truly at issue here? Second, as often embodied in various fields of the law, this case involves a quintessential question of "who decides?"—specifically, who decides which entities and programs a public university ought to maintain as a public university? …
[T]his case does not encompass a situation in which a university is stymieing a professor's speech within one of its programs or entities. Defendants, by Plaintiff's own admission, have not interfered with Plaintiff's in-class teaching, scholarship, research, or publication of DEI-related topics.
Rather, Plaintiff seeks a judicial decree to dictate the maintenance of specific programs and entities themselves. Certainly, a line of precedent confirms that the government may not command—at the threat of punishment—the particular speech of professors engaged in their core academic functions…. [But] Plaintiff fails to offer authority for the notion that his First Amendment rights include the ability to dictate how Miami University ought to determine which programs and entities to maintain as a university.…
Miami University's institutional discontinuation of the relevant programs and entities amounts to its own speech to "determine[ ] the content of the education it provides" in order to "promote its own policies" and mission…. "[W]hen the government speaks, … it is, in the end, accountable to the electorate and the political process for its advocacy." Put another way, the Constitution "relies first and foremost on the ballot box, not on rules against viewpoint discrimination" in such circumstances….
