How to Protect DEI Requirements From Legal Peril | #itsecurity | #infosec


More and more universities ask or require faculty to describe their contributions to diversity, equity, and inclusion when they apply for jobs, tenure, or advancement. All 10 campuses of the University of California, where I work, now ask for diversity statements, and the University of Illinois made headlines last month when it adopted a similar rule. As the mandates multiply, critics allege that they are a bad idea or, even worse, unconstitutional.

I’ll leave it to others to decide whether diversity statements are effective at promoting a more diverse faculty or a more equitable and inclusive learning environment. But as a law professor and former chair of the University of California’s systemwide academic freedom committee, I can say this: Mandatory diversity statements are constitutional — at least if they are done the right way.

To understand how to do it right, it helps to understand exactly what critics say universities are doing wrong. The most common criticisms are distinctly legal, even if they have been litigated here, on Twitter, and in faculty meetings rather than in court, as least so far. Critics claim that at public colleges, judging faculty and faculty applicants’ commitments to diversity constitutes unconstitutional viewpoint discrimination, in violation of the First Amendment. Mandating diversity-contribution statements, they say, violates academic freedom, protected both constitutionally and contractually at most schools. And basing jobs, tenure, and advancement on statements like these imposes a political litmus test akin to the loyalty oaths the Supreme Court struck down during the Cold War.

These are serious charges. As I describe at much greater length elsewhere, each involves its own complicated, surprisingly unsettled area of legal doctrine. But each charge also has something important to teach university faculty and administrators about how to frame and evaluate diversity statements in ways that don’t violate the law, or the academic freedom on which a university’s mission depends.

Viewpoint Discrimination

Critics often say that public universities, bound as they are by the First Amendment, can’t discriminate against students and employees based on their viewpoints. This just isn’t true. Like most professors, I engaged in rampant viewpoint discrimination when I graded my student’s exams this month. (For example, if a First Amendment student expressed the view that viewpoint discrimination is always unconstitutional at public universities, I would lower their grade.) Hiring and tenure review both require judgments by applicants’ disciplinary peers about the quality of the conclusions reached in their scholarly work. And surely when a university hires someone to run an asylum clinic, or to direct its program on entrepreneurship, it can reject an immigration restrictionist for the former search, but not the latter, and favor someone who is pro-capitalism for the latter search, though not the former.

Robert Post, the First Amendment scholar and former dean of Yale Law School, has explained what’s really going on here. Imagine, he says, a chemistry department that hands out research grants only to students who oppose abortion. “Although we might be tempted to say … that the department’s criteria for awarding grants are outrageously viewpoint discriminatory, what we would actually mean is that the criteria are completely irrelevant to any legitimate educational objective of the department.”

Post is right, and the implications for the debate over diversity statements are profound. Critics need to do more than point out that faculty are potentially getting judged on their viewpoints. What matters constitutionally is whether the views being judged are relevant to the position in question. One consequence: Prompts and rubrics that look for the same kinds of contributions to diversity no matter the job or discipline are less likely to be constitutional than those better tailored to the position at issue.

Once job-relevance rather than viewpoint neutrality is seen as the key to constitutionality, the real questions boil down to two. What counts as relevant? And who gets to decide?

All too often, critics of diversity statements just beg the first of these questions, assuming rather than arguing that DEI contributions are not part of the job description for most academics. When commentators say that diversity contributions have, as Brian Leiter has put it, “little or no relationship to a faculty member’s pedagogical and scholarly duties,” are not (in the words of Daniel Ortner from the Pacific Legal Foundation) part of academics’ “ability to contribute to their field,” or that they drag in considerations “other than merit” — the title of a recent American Enterprise Institute report on DEI statements — critics are simply stipulating that it’s not part of my job as a professor at a public university to ensure, for example, that a diverse set of students flourish in my classroom. And yet my university sees this as part of its “core mission” — something “integral to [its] achievement of excellence.” So who is to decide what my pedagogical and scholarly duties include, what counts as a contribution to my field, or what constitutes academic merit?

Academic Freedom

If you take academic freedom seriously, there can be just one answer to those questions: Academic excellence, both pedagogical and scholarly, within a given field can only be defined by experts within that discipline, not by administrators, donors, legislators, or the general public. This is the core meaning of academic freedom.

This insight complements the earlier point about viewpoint neutrality. Academics at state-run institutions don’t have the right to be free from having their viewpoints judged; what academic freedom gives is a right to be judged solely by their disciplinary peers, based on criteria experts within the discipline conscientiously judge to be relevant to the job.

So when critics call mandated diversity statements “an affront to academic freedom,” their accusations hit their target if and only if someone other than disciplinary experts are setting the terms by which faculty members are judged. For example, if the rubrics used to evaluate diversity statements are imposed by administrators top-down and university-wide, academic-freedom worries are going to compound the potential viewpoint discrimination concerns that arise when evaluative criteria aren’t tailored to the job at hand.

Note, though, that the academic-freedom threat here comes from administrators imposing rubrics for judging diversity statements — not from diversity statement requirements themselves. The distinction between mandated and voluntary diversity statements is largely a distraction if contributions to diversity are treated as a positive factor in an application regardless. What difference is there between a faculty member who declines to submit an optional DEI statement and one who writes “No contributions to diversity during this review period” on their mandatory statement? In either case, the faculty member won’t get whatever recognition or reward their contributions to diversity would have received.

But what about the potential for hiring and tenure committees to reward only those who think like them, locking in their favored viewpoints and creating echo chambers? Even the fear of such judgments might inhibit faculty members from challenging prevailing beliefs in their departments. Surely academic freedom would then suffer.

I grant all of that. But these are dangers endemic to any system that relies on peer review, where bias or laziness or self-interest can cloud evaluators’ judgments and lead to unjust exclusions and stifling orthodoxy. As female and minority faculty members, and those with boundary-shifting research agendas can tell you, this isn’t anything unique to diversity statements. These are dangers that have long corrupted the evaluation of teaching and scholarship as well. They are the potential downsides of academic freedom’s reliance on peer review — the worst of systems, except for all the others.

The point here is that the dangers raised by critics of diversity statements are really the dangers and downsides of academic freedom. Diversity statements are no different than teaching and research statements in this regard. The latter, too, are mandated from above, yet we seldom hear complaints about compelled speech. Teaching and research reports get judged, yet viewpoint discrimination is seldom alleged, aside from cases where clearly irrelevant considerations were brought to bear. And these mandated reports lead to greater rewards for some faculty rather than others, yet academic freedom is rarely said to be violated — or when it is, we have protections in place to deal with those cases.

Political Tests and Loyalty Oaths

Some will resist this analogy between diversity statements and statements reporting research or teaching achievements. For nowhere in the latter are faculty expected to swear allegiance to a particular political creed, as critics believe they must do when universities ask about faculty’s commitment to diversity.

Treating mandated diversity statements as something akin to the anti-communist loyalty oaths of the Cold War era stings — especially at a place like the University of California, where nearly half of the midcentury firings of communist professors occurred. Loyalty oaths were eventually struck down for imposing guilt by association, judging people by the company they keep — their party membership — rather than their individual actions.

Instead of debating whether mandated diversity statements require something akin to a loyalty oath, we can simply ensure that they don’t. This is fairly easily done: Universities just need to ask faculty and faculty candidates about what they have done or plan to do, not what they believe, when it comes to advancing diversity, equity, and inclusion in their field.

Focusing on actions rather than beliefs has several advantages. First, it’s harder to fake. Anyone can write about their commitment to diversity in the abstract, and job candidates from better resourced schools will get better support about how to do so. Less coachable are statements about what someone has done to reach a diverse set of students through their teaching or mentorship; to make their reading lists or class examples and assignments more inclusive; or to take on research projects or service commitments that make their school, field, or community more equitable.

Second, demanding a report about actions helps prevent diversity statements from becoming backhanded ways of taking racial or other proscribed identity characteristics into account in hiring. To be sure, faculty from underrepresented groups may have much to say about how their experiences have informed the work they have taken to promote DEI, but their group membership in itself is not what gets rewarded — something that would often be illegal under nondiscrimination laws.

Third and finally, focusing on actions rather than beliefs allows faculty the space to express dissenting views about their school’s DEI commitments somewhere outside the diversity statements. Whether in faculty meetings, shared university governance, or in op-eds or on social media, faculty can dissent without hypocrisy, as their diversity statements will not have required them to express any contradictory views.

Here diversity statements once again prove analogous to research and teaching statements. After all, faculty can and often do report their stellar teaching evaluations, curricular innovations, and other teaching achievements even if they happen to believe that their university places too much emphasis on teaching, perhaps at the expense of research. Nothing in an action-focused teaching statement precludes a faculty member from arguing elsewhere that teaching loads should be reduced, or that student evaluations of teaching are an affront to academic freedom. Similarly, when diversity statements focus on actions and plans rather than beliefs, nothing prevents faculty from arguing that those actions and plans are a distraction from (what should be) their real job.

The more diversity statements are like the kinds of teaching and research statements faculty are already accustomed to providing, the less controversial they should be. But this means that universities need to frame and evaluate diversity statements in ways that parallel their framing and evaluation of teaching and research statements.

Just this month, the faculty senate at the University of California released revised systemwide recommendations on the use of DEI statements, which advise exactly this. (I was on the committee that began the re-drafting process.) Hopefully UC’s many critics will take note. The revised recommendations were produced by three faculty committees along with a group of administrators. So at UC, not only are diversity-statement mandates coming from faculty members (contrary to what most critics assume), the new recommendations also make clear that it is the faculty’s responsibility to develop the criteria for judging those statements, to tailor them by field, and to ensure that they focus on actions rather than beliefs.

If colleagues follow these recommendations, our use of diversity statements should be on constitutionally solid ground.





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