Georgetown Law says acting U.S. attorney’s campaign against DEI violates Jesuit values, First Amendment

By William H. Freivogel

Edward R. Martin Jr., known for decades in Missouri for his fervid devotion to Catholic values, was rebuked this month by the dean of Georgetown Law School for violating the Catholic principles in pressuring the university to eliminate diversity, equity and inclusion from its curriculum.

Dean William M. Treanor sent a tartly worded letter to Martin, the acting U.S. attorney for the District of Columbia, that his interference with the university curriculum violated both the First Amendment and the Catholic principle that “serious and sustained discourse among people of different faiths, cultures, and beliefs promotes intellectual, ethical and spiritual understanding.”

Martin’s demand that the Jesuit university alter its curriculum, is part a series of sweeping Trump administration actions that have chilled free speech on campus. The president maintained, however, in his speech to Congress last week that,“I’ve stopped all government censorship and brought back free speech in America. It’s back.”

The actions that the administration has taken against free speech are:

• Taking away $400 million in federal funding from Columbia University for not adequately protecting Jewish students from pro-Palestinian protests and harassment. The action came only four days after the administration said it had opened an investigation, an extremely short time for such an investigation.

• Sending 60 universities a letter stating they are under investigation by the Department of Education’s Office for Civil Rights for not protecting Jewish students from anti-Semitism. Illinois universities among the recipients of the letter included Northwestern and Illinois Wesleyan.

• Detaining Mahmoud Khalil, a green card holder and leader of the Columbia protests, as well as threatening detention of other noncitizen students.

• Trump posting last week on his Truth Social platform the threat: “All Federal Funding will STOP for any College, School, or University that allows illegal protests. Agitators will be imprisoned/or permanently sent back to the country from which they came. American students will be permanently expelled or, depending on on the crime, arrested. NO MASKS!”

• Sending a Dear Colleague letter Feb. 14 to universities threatening consequences for covert discrimination it said was involved in DEI. The letter stated: “Educational institutions have toxically indoctrinated students with the false premise that the United States is built upon ‘systemic and structural racism’ and advanced discriminatory policies and practices” – citing DEI as an example of unlawful discrimination. 

These actions by the administration are violations of the First Amendment, said Greg Magarian, the Thomas and Karole Green Professor of Law at Washington University. 

He wrote in an email to GJR: “Threatening to defund colleges and universities over DEI or a supposed failure to suppress disfavored speech is an obvious First Amendment violation.  …we should understand these attacks on colleges and universities in their broader political context.  Trump is also trying to block research grants to universities, and congressional Republicans are threatening to heavily tax universities’ endowments.  Those measures, together with the First Amendment violations, represent a Republican effort to weaken universities as centers of political opposition, much like Republicans’ efforts over the past half century to weaken unions.

“His Truth Social post about illegal protests should chill and enrage anyone who cares about the First Amendment,” Magarian said. “There is no such thing as an ‘illegal protest.’  A ‘protest’ is a public assembly that seeks to send a message about some political issue.  A public assembly of any kind may become unlawful if law enforcement determines that the assembly threatens public order. However, the First Amendment explicitly protects the right of peaceable assembly.”

Magarian also criticized the deportation action against Khalil: “People we welcome into the United States should have the same speech protections as citizens, with only limited exceptions for speech rights directly tied to citizenship (such as the right to contribute money to political candidates).  Citizens should have full access to noncitizens’ insights.  We should never empower the government to punish ideas it opposes, no matter the source of those ideas.”

FIRE, the libertarian group that often protects conservative campus speech, also criticized the action against Khalil, writing, “There are millions of people lawfully present in the United States without citizenship. The administration’s actions will cause them to self-censor rather than risk government retaliation. Lawful permanent residents and students on visas will fear a knock on the door simply for speaking their minds.”

The job of attorney general for the District of Columbia, a position Martin has held since Trump was sworn in, entails prosecuting people suspected of violating federal criminal law. But he wrote Georgetown Law School that he also takes seriously requests for clarification and information and he had begun an inquiry based on reliable information that “Georgetown Law School continues to teach and promote DEI.”

“This is unacceptable,” he added. He demanded that the law school tell him by the end of February if DEI “has been removed from the curriculum.” Martin went on to say his office wouldn’t hire graduates of Georgetown if the school did not remove DEI from its curriculum.

Dean Treanor replied March 6 that Martin’s letter “challenges Georgetown’s ability to define our mission as an educational institution. He wrote that the “First Amendment guarantees that the government cannot direct what Georgetown or its faculty teach and how to teach it.”

Because the First Amendment does not allow the government to interfere with the university’s curriculum, Martin’s threat not to hire its graduates because of that curriculum is also a violation of the First Amendment, Treanor said. He added that it was also “an attack on the university’s mission as a Jesuit and Catholic institution.”

Martin graduated from Saint Louis University Law School, a Jesuit institution, after having attended Holy Cross and the Pontifical Gregorian University in Rome.

Separate from the Georgetown dispute, Martin faces a professional misconduct complaint filed by Sen. Richard J. Durbin, D-Il, and other congressional Democrats. It accuses Martin of having dismissed criminal charges against Jan. 6 defendants even though he represented some of them and raised money for their defense as part of his active role in denying that Trump lost the 2020 election.

The complaint to the Office of Disciplinary Counsel of the D.C. Court of Appeals accuses Martin of “dismissing charges against his own client and using the threat of prosecution to intimidate government employees and chill the speech of private citizens.” 

William H. Freivogel is the publisher of GJR. He was deputy Washington bureau chief of the Post-Dispatch in the 1980s and 90s.