Many university faculty and staff have taken mandatory training in human resources during their tenure. For example, not long ago I took a required module in sexual harassment training, even as an emeritus professor (well, I do interact with other faculty, students, and staff). These modules proceed by giving a didactic overview about how to proceed in various situations, followed by a number of questions to determine if you understood the procedures. I didn’t think anything of it, nor did I think the training was out of line, as sexual harassment is illegal and creates a bad environment on campus for the harassed and everyone else.
But training in diversity issues is different, as you’ll see below. So far, the University of Chicago hasn’t instituted required diversity training, and I wouldn’t be happy if they did—not if it was like what the University of Oklahoma’s (UO’s) mandatory training involves. For, according to the Foundation for Individual Rights in Education (FIRE), OU’s training does not let you pass the required modules unless you give certain approved answers. These answers don’t seem to involve obeying the law, but rather force you to agree with the University’s views on diversity. Click on the screenshot below to see a summary of the issue from the FIRE site:
It came to FIRE’s attention that in these modules, UO was forcing the trainees to agree with certain viewpoints—a form of “compelled speech” which, according to the Supreme Court, is illegal in public universities (these must obey the First Amendment). That’s because it may “compel students, faculty, and staff to agree with concepts that may violate their freedom of conscience”. FIRE notes the Supreme Court precedent that prohibits compelled speech:
Famously, in ruling that schoolchildren cannot be compelled to salute the American flag, the Supreme Court held in West Virginia State Board of Education v. Barnette (1943) that it’s unconstitutional for the government to require a person “to declare a belief [and . . . ] to utter what is not in his mind.” The Court, correctly, held that compelled speech “would strangle the free mind at its sources.”
How did FIRE know that compelled speech was likely taking place in UO’s training? A letter from FIRE to UO last November (pdf of letter here), reports the experiences of Elizabeth Owen, a (brave!) graduate student and staff member who had access to the diversity training materials. Owen was required to take three commercial diversity-training modules, which presented several hypothetical situations and then asked trainees to provide their “best choice”. Here are two examples of how Owen’s “best choice” was not the University’s. This one is from the FIRE article:
In one of these hypothetical situations, Owen was required to communicate with a fictional colleague named Michael. It showed a video of Michael saying he was “tired of all this transgender stuff” and gave Owen options to select in response. When Owen selected the response that she felt was most similar to her feelings (“I agree. Political correctness can be so tiring”), she was told that her opinion was not the “best choice.”
Had the video simply proceeded, there would arguably be no abridgment of Owen’s rights: She had chosen the answer she thought was best, the university disagreed, and the training would continue. That is similar to how an in-person training would likely work. (Assuming, of course, that the university did not find some other way to take adverse action against those giving “wrong” answers.)
Instead, however, the video automatically rewound, forcing Owen to select the answer choice that OU preferred — “You seem upset. What’s the matter?” — in order to continue. Owen was required to select the preferred answer in order to complete the mandatory training. In doing so, the university, an agency of the state, compelled Owen (and who knows how many others) to express a viewpoint with which she did not agree.
The modules are required, remember, so you have to agree with the University’s views to pass them.
And this example is from the letter that FIRE sent to OU.
Another example was a question about accommodations for an employee with fibromyalgia. The question states:
Anya has fibromyalgia and feels drained and in immense pain by the end of a workday. She sneaks in a few breaks when she can, but her work responsibilities can keep her from getting the rest she needs, and sometimes her efficiency suffers. What should Anya do?
Although Owen originally selected the response that most closely reflects what she would do were she Anya (“Nothing. She takes multiple breaks when she can to help with her disability, which is already more than her peers”), the training program required her to repeat the process, giving her an explanation about why OU did not select this as the proper answer. When Owen selected a second response that she believes would also be appropriate (“Talk to her supervisor about switching to part-time, or a less demanding position”), she was again required to repeat the process. Finally, when Owen selected the response that OU has marked as the correct choice (“Talk to her supervisor about what reasonable accommodations can be made for her”), she was permitted to move on.
On these and other questions, Owen disagreed with the mandatory OU-selected answer but was forced to affirm OU’s preferred response rather than the response that reflects her own conscience. Failing to do so would render her unable to complete the mandatory training and thereby subject her to adverse action by the university.
FIRE concluded its November letter this way, drawing an analogy between being forced to salute the flag—at the time a West Virginia law, which violated the conscience of Jehovah’s Witnesses—and to adhere to the University’s views about what is “appropriate” behavior. (Legal behavior is a separate issue.):
OU’s diversity trainings—however well-intended—require students, faculty, and staff to express the “correct” response and profess their agreement with the ideas that the university disseminates. While, as in Barnette, there would be no constitutional issue or burden on the freedom of conscience if the university’s administration simply shared its own views on the correct response to hypothetical situations, the requirement that students and faculty affirm the “correct” view is similar to the requirement in Barnette that students salute the flag.
If forcing schoolchildren to salute the flag with the goal of building national unity amidst the destruction of World War II did not make the cut for an exception, then neither does diversity training, however well-meaning, permit such an exception now. FIRE again calls on OU — and any other public college or university that uses similar training materials — to immediately remove any requirement that faculty or students agree with the university’s viewpoints and to commit to protecting its students’ and faculty’s rights.
Before FIRE can go further, like instituting a lawsuit against OU (which would probably succeed), it needs access to the modules themselves. After asking for them under the Freedom of Information Act, OU said, well, yes, FIRE could see them, but they’d have to travel to the University itself to see them in person!:
The university’s March 23 response — more than four months after our request — said that FIRE would be permitted to view the training materials, but only in person on OU’s campus in Norman, Oklahoma. In other words, in order to view public records, the University of Oklahoma would require a FIRE staff member to fly across the country (FIRE is based in Philadelphia) during a global pandemic. That’s not exactly a transparency-friendly approach to public records, and it all but ensures that public records remain private.
This is ridiculous, for these models could be made available to FIRE online. That is, in fact, how we take them: we register and then are given a code to access the test. OU is trying to prevent FIRE from coming down on the University for violating the First Amendment.
And it is this which made many of us worried earlier when our Provost suggested that the University of Chicago might also institute mandatory diversity training. The objection is that such training, as at OU, is not to determine if you understand your legal obligations, but if your own opinions conform to a preferred point of view—probably the tenets of Critical Race Theory. That would never fly at this school—at least I don’t think it would. At any rate, the University of Chicago seems to have dropped that suggestion.
But the University of Oklahoma, a public university, is digging in its heels. It really should do what FIRE suggested: stop using forms of training that require the trainees to agree with the University’s own views.