Penn State forces faculty to become DEI zealots to get promoted, wine scientist's lawsuit says

Want a promotion in a Pennsylvania State University agricultural program? Be prepared to wax poetic on going above and beyond to advance Diversity, Equity and Inclusion (DEI).

That's the narrative in a First and 14th Amendment lawsuit by a wine-science educator against Penn State Extension, which "empowers farmers, agribusinesses, youth, and communities with science-based education and innovative solutions to advance agriculture."

Molly Kelly, a former "biodefense team microbiologist" for the state of New York with a doctorate in enology, "has secured significant grant funding, developed innovative educational programs, and made substantial contributions to Pennsylvania’s wine industry," yet got rejected twice for promotions because reviewers said she met rather than exceeded DEI requirements, the suit says.

"Public universities are not allowed to condition employment decisions on the parroting of a preferred viewpoint," said Reilly Stephens, senior counsel at the Liberty Justice Center, which is representing Kelly. "DEI requirements operate as tools of coercion, demanding that all scholarship serve ideological ends."

It's at least the second ongoing case against Penn State by a professor related to DEI. 

The 3rd U.S. Circuit Court of Appeals will hear oral argument March 19 in Zack De Piero's case against Penn State Abingdon after a CNN reporter-turned-judge said the repeated white-shaming he endured for challenging DEI dogma did not create a hostile work environment. The Mountain State Legal Foundation is representing him.

Kelly's allegations come at a precarious time for research universities, whose heavy reliance on federal funding makes them vulnerable to Trump administration attacks on DEI mandates and programming.

The 4th U.S. Circuit Court of Appeals, which oversees Pennsylvania's neighbors to the south, last week vacated an injunction on President Trump's executive orders to end DEI programs in federal grant and contract processes, in a crushing blow to plaintiffs including the National Association of Diversity Officers in Higher Education.

Noting it was joining "a trio of district courts that have evaluated nearly identical claims in the same procedural posture," the three-judge panel – two nominated by President Obama – said the plaintiffs didn't have legal standing to challenge an enforcement provision of the order titled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity."

The plaintiffs are also unlikely to succeed in their challenges to the certification provision in that order, and to the termination provision in the order titled, “Ending Radical and Wasteful Government DEI Programs and Preferencing," the panel found. 

The case is a "facial challenge" to orders that concern "certain DEI programming, not the legality or termination of any particular DEI program," Chief Judge Albert Diaz wrote "reluctantly" in a concurrence. "That makes all the difference."

Arizona State University and the University of Kentucky are also feeling the heat following undercover video by conservative watchdog Accuracy in Media that suggests their academic departments are still advocating for DEI concepts by using different wording and programs, counting on the fact that "people are dumb," as a UK administrator said.

Protect the Public's Trust has filed two federal complaints against ASU based on AIM's video for discrimination based on race and sex under Title VI and Title IX, respectively. The fact that two administrators made similar statements suggests these actions "may be orchestrated, endorsed, or sanctioned by higher-ranking officials within this institution," one complaint reads.

'Policing her thoughts' for 'evidence of genuine ideological conversion'

"This case presents a stark choice: whether public university faculty retain the freedom of mind that is the lifeblood of American education, or whether state institutions may condition career advancement on ideological fealty to government-approved viewpoints on diversity, equity, and inclusion," Kelly's lawsuit against Penn State Extension says.

The Promotion Dossier Review Committee was not coy about why Kelly's applications for "Extension Educator Level 5" were rejected the past two years.

The co-leader of the "Grape and Wine Team" showed "no evidence of efforts to reach underserved audiences” and completed only "minimum diversity training hours" with "nothing specific to show growth in this area," the committee wrote in March 2024. 

A year later, it questioned "how doing site visits and providing technical expertise to LGBTQ and Greek Orthodox-owned businesses is receiving diversity training" or showing an "effort to learn" rather than Kelly having "checked the box."

Penn State Extension was not "neutrally assessing Dr. Kelly’s professional competence" but "policing her thoughts" for "evidence of genuine ideological conversion" that goes beyond "attendance" in DEI requirements, the suit says.

The mandatory competencies for promotion include "Community, Civil Rights, and Diversity Excellence," which require "robust evidence of program impact with underrepresented audiences" for the Level 5 rank Kelly was seeking.

But the promotion criteria are "vague and subjective," such as describing "what they learned" from DEI-related professional development, demonstrating "self-awareness" and being "culturally sensitive," giving the review committee "standardless discretion to evaluate – and penalize" faculty based on its view of their "ideological beliefs," the suit says.

Denying her the promotion based on ideology has cost Kelly two years of associated wages and benefits, humiliated and harmed her reputation with colleagues, and chilled her speech and "academic inquiry" given she's now expected to "conform" to the university's "ideological demands or risk further adverse employment actions."

It penalized her "approach to diversity," a matter of "profound public concern" and hence subject to the most stringent judicial review, by deeming outreach to Greek Orthodox and LGBTQ-owned businesses not diverse enough, the suit says.

Requiring Kelly to describe "what she learned" and how she's "grown" from DEI training is also "not viewpoint-neutral documentation of professional development," exceeding any legitimate requirement that she simply document completion of training by requiring Kelly to demonstrate "the 'right' ideological transformation."

Compelling her to affirm the university's view of diversity is at odds with the Supreme Court's 2018 precedent prohibiting public sector unions from collecting "agency fees" against the will of non-members, the suit says. If that's unconstitutional, "compelling an employee to personally author and express that speech is an even more direct violation."

SCOTUS has also preemptively knocked down any argument Penn State Extension might make that its DEI criteria are legitimate regulation "professional speech," in another 2018 precedent against forcing pro-life groups to promote abortion, and reaffirmed in 2023 the "First Amendment protects the right to choose the content of one’s own message."