DEI statements for hiring: can they be made legal?

May 30, 2022 • 1:30 pm

As you know, DEI (Diversity, Equity, and Inclusion) statements are increasingly required by colleges and universities for both hiring and promotion of faculty. And for a long time my law-school colleague Brian Leiter has argued that they should not be used, as hiring or promotion based on them constitutes illegal “viewpoint discrimination” by deep-sixing candidates that don’t have the “right ideological views.”

Leiter’s most prominent argument against the use of these statements, and one that is cited often, is his piece from the Chronicle of Higher Education (CHE) two years ago, “The Legal Problem with Diversity Statements.” His objection is this:

. . . 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.

I agree with him; it’s a form of sneaking ideology into the hiring and promotion process. To succeed we all know what we have to say, and it certainly isn’t “I have and will treat all undergraduates equally, regardless of who they are.” Nevertheless, the requirements for these statements are not only proliferating, but the weeding-out process, used most prominently by the University of California, is being used to cull those who don’t agree with the progressive view of DEI. Even here I’ve heard dark rumors that such statements are being used to cull those with unacceptable ideological views, but I don’t know for sure.

At any rate, there’s a new article in the CHE by Brian Soucek, a law professor at the University of California at Davis, that argues the feasibility of using DEI statements legally. (By so arguing this he admits that there are legal problems with these statements from the get-go, problems like those raised by Leiter.) The problem is that by rendering the statements legal, Soucek also removes the rationale for why many academics really want them: to assure that faculty conform to “a controversial set of moral and political views.”

Click to read:

You can see how the DEI statements must, according to Soucek, be “made legal”: by showing that they don’t violate academic freedom or constitute compelled speech because they do indeed require criteria necessary for a specific academic job. Further requirements for “legalization” mean ensuring that those judgments be made by the relevant scholars, not by administrators or diversity experts. Soucek:

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.

And indeed, for most academic jobs, specific commitments to forms of diversity are not relevant. Anything in science, and in most humanities jobs, are off the table; no specific views on diversity are crucial for performing those jobs well.

So who makes the requirements? Soucek:

. . . .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.

But of course nearly all such requirements come from the University, and must adhere to University standards and wording, futher rendering the statements irrelevant.

Soucek adds that there’s nothing wrong with compelled speech, and supports that by giving some ludicrous examples that are irrelevant to Leiter’s Constitutional concerns. Soucek:

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.

Soucek is a law professor, for crying out loud, and should know the difference between judging someone based on whether they’ve met the criteria for the job (or gotten decent grades) or whether extraneous political views are being tacked on for ideological reasons.

Leiter takes apart Soucek’s article in a short post on his philosophy website Leiter Reports. An excerpt from Leiter’s rebuttal:

Soucek  complains that critics “assum[e] rather than argu[e] that DEI contributions are not part of the job description for most academics,” quoting my observation that diversity has “little or no relationship to a faculty member’s pedagogical and scholarly duties.”  Soucek omits, however, that I was explicitly criticizing Berkeley’s diversity requirement, according to which a job applicant’s diversity statement would get a low score if s/he “describes only activities that are already the expectation of Berkeley faculty (mentoring, treating all students the same regardless of background, etc.).” In other words, Berkeley’s diversity requirement explicitly distinguished a commitment to the diversity ideology from a faculty member’s other pedagogical duties.

Soucek suggests Berkeley and other UC campuses can avoid legal problems as long as diversity requirements represent “criteria experts within the discipline conscientiously judge to be relevant to the job.”  That point would rule out most university requirements of diversity statements, which are administratively imposed.  If different departments can genuinely decide on their own if actions in support of “diversity” (as distinct from the usual pedagogical duties of faculty, such as “treating all students the same regardless of background” as Berkeley put it) are relevant to the job, and if their disciplinary peers at other universities concur, then Soucek may be right that academic freedom protects such a decision.

Suppose, however, members of the economics discipline decided that actions in support of “capitalism” were “relevant to the job.”   Does that mean economics departments at public universities could exclude candidates who do not demonstrate in practice their commitment to capitalism?  One hopes that the courts would see through this pretextual form of viewpoint discrimination.

If you’re in academia, and able to see how these statements are being used, it’s clear that they are aimed at weeding out candidates who don’t conform to progressive Leftist ideology on race or gender (adherence to “structural racism/sexism” and so on).  Needless to say, I agree with Leiter: it only weakens academics when departments in which adherence to a specific DEI requirements are irrelevant are still forced to adhere to those requirements. I’m surprised that the University of California has gotten away with these shenanigans, and I smell a lawsuit approaching from the wings.

9 thoughts on “DEI statements for hiring: can they be made legal?

  1. “Soucek is a law professor, for crying out loud, and should know the difference between judging someone based on whether they’ve met the criteria for the job (or gotten decent grades) or whether extraneous political views are being tacked on for ideological reasons.”

    You have a lot of faith in lawyers. The Ontario Law Society, a self-governed body, recently tried to push and impose a similar mandatory “Statement of Principles” upon its members. That proposal was rejected, but not without acrimonious debate.

    https://nationalpost.com/news/ontarios-law-society-ditches-controversial-statement-on-diversity-but-loses-none-of-its-acrimony

  2. Is their empirical evidence that DEI statements improve outcomes for the major projected classes when the student performance is measured objectively?

    1. The promoters of DEI – conformant views don’t do “white empirical evidence”. Western science is one of the prime bogies.

  3. The emphasis on viewpoint discrimination/first amendment grounds seems misplaced. Surely the stronger objection is the “no religious test” clause of Article VI, which the SC and lower courts have repeatedly viewed as applying to all forms of opinion and conscience, not just religion? By applying DEI statements as initial filters in job applications, the University of California is applying a religious test as surely as, three centuries ago, the requirement for students at Oxford and Cambridge to accept the 39 Articles of the Church of England (which, incidentally, is precisely the kind of example the authors of the US Constitution would have been familiar with and had in mind when that clause was written).

  4. Soucek’s reliance on DEI’s being ok if applied by academic peers rather than administrators is also an incredibly weak argument — really just a form of credentialism, i.e. if you can get a person with the right credentials to insist on the requirement, that’s enough for the requirement to be acceptable (without having to argue in any detail as to why the particular requirement is needed). All that’s needed, in this view, is for the same list of requirements to come from the department chair or search committee rather than central HR — a pure figleaf disguising an unchanged problem.

  5. It is a point that I’ve made before. Whilst free speech is important the actual discrimination being made is one of discrimination against someone for a state of being. Not having the right political views is at last partly due to biological differences in the brain. It is something innate in that person akin to innate differences in racial features such as skin colour or sexual orientation.

    The fundamental problem is not that they discriminate against people for what they say. They don’t get that far, they inherently discriminate against people for what they are.

  6. “Are you now, or have you ever been a member of the Communist Party of the USA?” Is an offensive question even when the only acceptable answer is yes.
    Besides which, once the precedent is set that loyalty oaths and the like to ensure that only people with approved political views are hired, it will stay in place when the political tides switch, and the other team is in charge.
    It seems strange to me that woke people never seem to consider that their tactics might some day be used against them. These are the new rules, but I expect you to keep playing by the old ones.

  7. > woke people never seem to consider that their tactics might some day be used against them

    Both from within and from without. It’s well understood by now that they eat their own, attacking members of their ingroup for not being ideologically pure enough. Eating their own and the inability to anticipate tactic turnaround are two more things we see from both the New Right and the New Left today.

  8. ” Soucek suggests Berkeley and other UC campuses can avoid legal problems as long as diversity requirements represent ‘criteria experts within the discipline conscientiously judge to be relevant to the job.’ ”

    And these “criteria experts’ would be…who exactly? Unless stopped and ended root and branch, this will only end one way. And it’s not gonna be pretty.

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