Brian Leiter on “diversity statements”

I’ve written several posts on the mandatory “diversity statements” now required by the University of California, which will soon be required on campuses elsewhere. These statements are used to weed out candidates for academic jobs before their academic credentials are even assessed, and they require candidates to do three things: they must express their philosophy of diversity, they must recount their past efforts to promote diversity, and they must describe their plans to increase diversity at the UC campus where they’re applying.

Just saying you’re in favor of diversity is not enough. You have to have that track record and you have to have a credible plan to promote diversity (“diversity” refers, of course, to gender and racial diversity, not socioeconomic, religious, or political diversity). Asserting that you’re in favor of diversity, and will treat all students as equals, is not sufficient—your application will get tossed. At Berkeley and Santa Cruz, for instance, the applications are scored by committees, not the relevant departments, and you’re given points for each of the three parts. If your points don’t exceed a specified threshhold, your candidacy is stopped in its tracks.

I’ve been opposed to these statements on several grounds, including the insupportable requirement that faculty adhere to a particular ideological position (you cannot, for example, be opposed to affirmative action, or even take Dr. King’s view that someone is to be judged by the content of their character rather than their pigmentation). Further, faculty who have done outreach in other ways besides promoting diversity (e.g., writing popular articles, lecturing on their field to secondary-school students, and so on) get no credit for that, and their applications are discarded. As I wrote in February, while I favor affirmative action, I oppose these ideological purity tests:

So I’ll reiterate that yes, I favor initiatives to increase faculty diversity given the lack of equal opportunity for many minorities. I just don’t think it’s right to mandate “diversity statements”—and, especially, using them as a way to prune out all candidates who aren’t sufficiently on board with the UC ideology (or have no track record of promoting diversity). That simply eliminates candidates, even minority ones, who have outstanding records but haven’t spent a lot of time promoting diversity. Or who have done other sorts of “outreach” activities not involved with diversity itself.

My U of C colleague Brian Leiter, a professor at the Law School and Director of Chicago’s Center for Law, Philosophy & Human Values, has pretty much agreed with me about all of this. He, too, favors affirmative action, but not on the grounds that diversity is an “inherent good”, which is the basis on which the Bakke decision allowing affirmative action was decided by the U.S. Supreme Court. Rather, Leiter favors diversity initiatives as a form of reparation—to help lift up those who were oppressed and thus lost ground in the past—and also to provide role models to buttress and inspire members of minority groups. And I’m pretty much with him on that as well.

About a month ago, Leiter wrote a clear and persuasive argument in the Chronicle of Higher Education that these diversity statement are not only invidious, but illegal. You can read the article for free by clicking on the screenshot below.

I’ll give a few quotes on Leiter’s legal grounds for opposing these statements:

. . . some universities and departments are using scores on the diversity statement to make the first cuts in faculty searches. That would not be objectionable if it were only a device for weeding out candidates unwilling to work with a diverse student body: The ability to do so obviously goes to the core of a faculty member’s professional duties. The problem is that the new diversity statements go well beyond that, requiring candidates to profess allegiance to a controversial set of moral and political views that have little or no relationship to a faculty member’s pedagogical and scholarly duties.

The University of California at Berkeley has made its criteria for evaluating diversity statements public, and they bear out Thompson’s analogy to loyalty oaths. A job candidate will get a disqualifying score if he or she “defines diversity only in terms of different areas of study or different nationalities, but doesn’t discuss gender or ethnicity/race” or if she or he discounts “the importance of diversity.”

Why these statements are illegal (I believe they are illegal, and also expect that they’ll be challenged in the courts):

Ought a state university ask candidates to sign on to a particular vision of diversity in higher education as a condition of employment? Everyone presumably agrees that a public university should not ask a faculty candidate to affirm allegiance to a particular political party, but why not? In a free and democratic society, citizens should not be penalized in the workplace for their lawful political opinions and expression. The private sector often violates this moral principle, but the courts have required the public sector to honor it, with only limited exceptions. Looking at the constitutional treatment of these issues sheds light on the ethical issues at stake in mandatory diversity statements.

American law has long disfavored speech compelled by the government. In 1943, the Supreme Court struck down compulsory pledge of allegiance to the flag in public schools. Writing for the majority in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson declared: “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”

The McCarthy-era loyalty oaths in California were finally held unconstitutional by the Supreme Court of California in 1967, not on compelled- speech grounds, but rather because they violated the right of citizens to “freedom of association” by proscribing “membership, past, present, or future, in any party or organization which advocates the overthrow of the government by force, violence, or other unlawful means,” even when a member does not share the organization’s aims or know of them. Earlier in 1967, the U.S. Supreme Court struck down New York’s similar “loyalty oath” as unconstitutionally vague and thus as posing a threat to freedom of expression in the classroom and outside it: “The First Amendment … does not tolerate laws that cast a pall of orthodoxy over the classroom” the Court declared.

Mandatory diversity statements do not affect freedom of association, but they arguably “cast a pall of orthodoxy over the classroom,” at least those classrooms where professors might want to scrutinize justifications for affirmative action, for example. Even though there is nothing in the Berkeley policies to suggest the university would restrict a faculty member’s teaching, by mandating a particular vision of diversity and its value as a condition of employment, the policy does claim this is the “orthodox” view in the California system.

The latter concern comes closer to the real moral and legal problem: In the language of First Amendment jurisprudence, these diversity statements constitute “viewpoint discrimination.” Government cannot, excluding a few exceptions such as political appointments, base a hiring decision on the speaker’s political viewpoint. Wagner v. Jones (2011) offers a good illustration. Wagner, a conservative who opposes abortion, claimed she was passed over for a job teaching legal research and writing at the University of Iowa because of her political views. The trial court initially granted Iowa’s motion to dismiss, but the U.S. Court of Appeals for the Eighth Circuit correctly reversed that decision. As the court put it, “The state can neither directly nor indirectly interfere with an employee’s or potential employee’s rights to association and belief.”

Again, Leiter is an advocate of racial justice, but doesn’t think that whether you get hired at a state university requires that you adhere to specified views about diversity, nor have engaged in the past in efforts to increase it. Leiter is also a Marxist, and as far as I understand his views, he sees socioeconomic factors as more important than “racialism” as a cause of inequities. Nevertheless, because racism, which I think Leiter sees as an outcome of slavery—a post facto justification—rather than its cause, has palpably harmed people, he favors a form of affirmative action. So do I.

 

h/t: Greg Mayer

 

18 Comments

  1. Posted April 15, 2020 at 10:40 am | Permalink

    And I think it is safe to say that anyone who posts a remark favorable to Leiter’s article
    in the Chronicle comment section will have that remark used against them in their next diversity screening. I cannot imagine a young academic reading the Chronicle failing to take this into consideration. That’s the real “teeth”, the chilling effect.

  2. Jon Gallant
    Posted April 15, 2020 at 11:07 am | Permalink

    As an analogy to the Diversity Statement vogue, the late-lamented loyalty oaths of the 1950s are much too modern. The Diversity Statements remind me more of the Catechism of the Catholic Church. Subscription to the Catechism was of course required of all academics in Medieval times, when faculty
    members were ordained priests or monks. So,
    U. Cal. is simply returning to the historical roots of the University in Bologna, Oxford, and Paris. After the Diversity Statement period, we may expect U. Cal. to outlaw lay subjects like math, physics, and engineering, and limit all subject matter to the Trivium:
    Grammar, Logic, and Rhetoric, as taught in
    the blessed texts of Diversity, Equity, and Inclusion, and interpreted by postmodernism.

  3. DrBrydon
    Posted April 15, 2020 at 11:19 am | Permalink

    I think the most damning thing about the diversity statements is that they appear to be the first thing considered in the employment process. How is that better than saying someone must be a party member in order to hold a university post?

  4. Posted April 15, 2020 at 11:26 am | Permalink

    I’d be interested to know how Leiter thinks that diversity statements will be legally challenged. Who would sue and what is their likelihood of success? My fear would be that those who might benefit from challenging the law typically don’t have deep pockets. It also seem like it is something that universities could avoid by simply claiming that the candidate was refused on other grounds. Is a candidate told that they didn’t succeed because of their diversity statement? I suspect not.

    • Posted April 15, 2020 at 11:31 am | Permalink

      Well, it will be a matter of written record. Applicants will be stopped at this first committee, with commentary by the committee recorded in the minutes of their meetings. It will be an even paper trail than what one has when college applicants are rejected b/c they are white or Asian.

    • Brian Leiter
      Posted April 16, 2020 at 11:56 am | Permalink

      The Pacific Legal Foundation, a public interest legal group, is offering pro bono legal representation to potential plaintiffs and has been reaching out to candidates rejected from job searches involving the unlawful diversity statements. In California, taxpayers have standing to sue, so it is also possible they may file a lawsuit on behalf of the many taxpayers, including UC academics, concerned about these political loyalty oaths.

      • Posted April 16, 2020 at 11:59 am | Permalink

        Thanks! Good to hear. I enjoy your blog posts, by the way, especially your “Great moments in obscure rock ‘n’ roll.”

  5. Posted April 15, 2020 at 11:26 am | Permalink

    Once again, time to be irritated by the fact that we must look to the ultra-conservative Supreme Court to straighten things out. If it goes that far.

  6. Mike
    Posted April 15, 2020 at 11:27 am | Permalink

    “That [screening candidates] simply eliminates candidates, even minority ones, who have outstanding records but haven’t spent a lot of time promoting diversity.” This seems like the really telling feature of the whole process: it is not really about helping the brown or gay people. Imagine a gay person or a black person applying for one of these jobs who has been focused on overcoming real discrimination by excelling at her scholarship, and has not been an advocate or maybe couldn’t even afford to be out to her colleagues. Instead of hiring her, the university using this process will end up hiring some straight white person who used her privilege to engage in allyship as well as scholarship (I am doing my best to hit all the buzzwords here). Rather than helping a person like that, this process seems to be all about signalling the virtues of the straight white people who are running the show.

    • Posted April 15, 2020 at 11:34 am | Permalink

      Also, in academia it is pretty common to have excellent candidates from overseas, from the Middle East, or parts of Asia, where there really is no system to build a track record of this sort.
      I keep thinking of the amazing professors in my department — a department that is exemplary in its racial diversity, with over 30% women (which is very high, really!). I can’t think of a single one who would have made it to an interview with this system.

      • Mike
        Posted April 15, 2020 at 11:41 am | Permalink

        Yes exactly.

  7. Stephen Mynett
    Posted April 15, 2020 at 12:26 pm | Permalink

    We have stuff like this in the UK, usually coming from the overly politically correct.

    After a job interview I was given feedback on why I did not get it and one reason was my suspected racism. Questioning this the woman replied that as I did not categorically state I was not a racist they felt I may have racist tendencies.

    My response was that I deplored racism and it would simply not occur to many people to say they were not but she was adamant her system was correct. Sh then slammed the phone down when I asked whether she thought I may be a rapist,paedophile or arsonist as I could not recall denying any of those.

    • Dave
      Posted April 15, 2020 at 12:40 pm | Permalink

      The other absurd aspect of this charade is that a genuine racist with even a modicum of intelligence would be savvy enough to mouth the buzzwords, tick the required boxes and proceed to the next stage of the interview.

      I wonder if the end result of this will be that candidates get hooked up to a machine like the Voigt-Kamppf device in “Blade Runner”, the only thing capable of detecting a crypto-racist (or a Replicant)

  8. Posted April 15, 2020 at 12:34 pm | Permalink

    “Leiter favors diversity initiatives as a form of reparation—to help lift up those who were oppressed and thus lost ground in the past …”

    Except that generally it does not help those who were oppressed. It helps those who are in some group, some of whose past members were oppressed.

  9. Charles A Sawicki
    Posted April 15, 2020 at 2:01 pm | Permalink

    At Berkeley and Santa Cruz, for instance, the applications are scored by committees, not the relevant departments, and you’re given points for each of the three parts. If your points don’t exceed a specified threshold, your candidacy is stopped in its tracks.
    I hope they get sued on these policies, since they are a path to degradation of US universities.
    This might be the one case where a conservative SCOTUS is a good thing.

  10. Jon Gallant
    Posted April 15, 2020 at 3:55 pm | Permalink

    Te Diversity Catechisms are the sort of thing that used to be challenged by the AAUP. Not any more.

    I think members of FIRE or the Heterodox Academy ought to look into the origin of the
    U. Cal. Catechism system. It was undoubtedly slipped into the hiring process by members of the D,E,I clergy in Administration. The world of Academe signed its own death warrant when it empowered grievance study departments to produce a cohort of bureaucrats trained to do nothing in the world except institute things like the Diversity Catechism system.

  11. pablo
    Posted April 15, 2020 at 8:35 pm | Permalink

    At least China seems immune from this insanity. We’ll be depending on their universities for breakthroughs in science and technology soon.

  12. Posted April 17, 2020 at 11:45 am | Permalink

    I generally agree with the blog and the comments. As a former employment law attorney for 34 years I wrote and helped instruct on affirmative action plans and diversity plans for corporations (not academia). I think both have legitimate roles. At least in the private sector, absent a court finding of discrimination and an order setting them, affirmative action plans are not quotas. The rationale is simply to increase the pool of minority/female applicants and thereby increase the chances of a more diverse workforce, which with demographic changes (if for no other reason) makes good corporate sense. But like the writer and comments I don’t agree with the 3 part approach of the diversity statement as a litmus test. I am curious about the legal arguments that would be marshaled by the Pacific Legal group. California has the most wide ranging protections so there may be something in state law to rely on (I was not a California lawyer) but on the federal level I am wondering which protected class the plaintiffs would allege they fit into. Does it qualify as reverse discrimination if the exclusion can be applied against anyone of any race or gender? It wouldn’t seem so but as a state university there might be a 1981 type action. Just don’t know. It will be interesting to hear the arguments.


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