The legality of diversity statements

June 1, 2023 • 12:00 pm

This piece in the Chronicle of Higher Education discusses an issue we’ve taken up here before: is it legal to require applicants for university jobs to submit DEI statements? The piece gives both sides of the argument, although I’ve long thought that such statements should be always be illegal on two grounds: they are irrelevant for nearly all academic jobs, and they violate the First Amendment because they’re a form of compelled speech.

When I first wrote about this, I thought that someone with standing should bring a lawsuit against a public university (such schools must adhere to the First Amendment), as diversity statements are a form of compelled speech as well as viewpoint discrimination, forcing applicants to voice certain approved political beliefs.

Now that lawsuit has been brought. As the article notes:

John D. Haltigan, the plaintiff, is being represented pro bono by the nonprofit Pacific Legal Foundation. He is arguing that the University of California system’s use of diversity statements in hiring violates the First Amendment and represents unconstitutional viewpoint discrimination. Haltigan wants to apply for a tenure-track position in the psychology department at the University of California at Santa Cruz and is asking the court, among other things, for an injunction that would allow him to apply without submitting a diversity statement. The university system has required diversity statements in applications for tenure-track positions and promotions since 2018.

As I wrote in a previous post, Haltigan didn’t actually apply for the job, because he realized that his own statement would never pass muster with the faculty. But he did write and publish the statement that he would have used had he applied. It wouldn’t have passed muster, though, because it included stuff like this:

I believe that the use of diversity, equity, and inclusion (DEI) statements in evaluating candidates for positions in higher education and academia are anathema to the ideals and principles of rigorous scholarship, and the sound practice of science and teaching.

Haltigan’s own “colorblind” statement would of course have led to his being rejected for the UCSC job, but he published it on a blog, and it was on those grounds that the Pacific Legal Foundation is representing him in a lawsuit.  Whether this gives him “standing” is not clear, but what is clear is that it will be hard to find somebody who can convince a court that they didn’t get a job because their diversity statement didn’t pass muster. That is what’s required to win such a suit.

Click to read: it’s free:

The Chronicle is fair in giving the pros and cons of requiring diversity statements.  First-Amendment arguments can be used for jobs in government, which include academic jobs in public universities, but it’s not clear whether private universities can require DEI statements if they still take federal funds. And even if they can require those statements, in my view they shouldn’t, for every college, public or private, should have policies that adhere to the First Amendment.

Three professors make the argument that diversity statements aren’t legal; one (Leiter) is my colleague at the U of C law school:

Public universities have a First Amendment right to have their own values and mission statements, said Zach Greenberg, a senior program officer with the Foundation for Individual Rights and Expression, which has warned that diversity statements could be used as political litmus tests. But colleges may not force students or faculty members to adhere to values and mission statements, Greenberg said, “if they’re in political terms.”

“So, a university may say that we are antiracist, we believe in DEI, but we also welcome those with opposing views,” Greenberg said. A university can even encourage faculty to share those views, as long as it doesn’t cross the line into compelling them, he said.

While private employers are generally allowed to practice viewpoint discrimination, public universities, like other public employers, typically cannot discriminate based on political beliefs. “A public university can’t require its faculty to have certain beliefs,” said Brian Leiter, a professor of jurisprudence and director of the Center for Law, Philosophy, and Human Values at the University of Chicago, who has been a vocal critic of diversity statements. “No matter how laudable one thinks the beliefs are, it’s not allowed. And that’s just true of any public employer. There are very narrow exceptions.” Courts have ruled that government can base hiring decisions on political viewpoints only in very limited cases, such as political appointments, Leiter added.

But do diversity statements require a particular political viewpoint? Keith E. Whittington, a professor of politics at Princeton University, said that diversity statements, as they are commonly used in academe, “definitely run afoul of these kinds of viewpoint discrimination concerns.” For example, Whittington pointed to evaluation rubrics from the University of California system that downgrade applicants who say they treat every student equally. The rubric used by the University of California at Santa Cruz, for example, gives applicants less credit if they describe “only activities that are already the expectation of our faculty such as mentoring, treating all students the same regardless of background, etc.”

But giving less credit to “color blind” applicants violates the First Amendment by privileging political statements that promise a form of affirmative action in academia. While schools can have policies for mentoring ill-prepared applicants, they cannot refuse to give jobs to professors who simply promise to afford everyone equal opportunities to learn.

There’s really only one one viewpoint given that touts the legality of diversity statements, and I don’t find this very convincing:

Brian Soucek, a professor of law at the University of California at Davis, has argued that diversity statements can be constitutional, if used correctly. He previously served as chair of a systemwide committee on academic freedom for the University of California that provided input for the university system’s latest recommendations on the use of DEI statements.

Soucek recommends that in order to avoid infringing on academic freedom, faculty members, rather than administrators, should determine how to judge applicants. In order to avoid comparisons to loyalty oaths, he recommends that colleges ask what applicants “have done or plan to do, not what they believe, when it comes to advancing diversity, equity, and inclusion in their field.”

And regarding viewpoint discrimination, Soucek argues that the central question is not whether applicants are being judged on their viewpoints, but whether those perspectives are relevant to the position in question. An immigration-asylum clinic, for example, could legitimately ask about an applicant’s views on immigration, Soucek said, but it would appear to be constitutionally problematic if a law school asked an applicant for a bankruptcy professor position about immigration.

In Haltigan’s case, Soucek said, the University of California at Santa Cruz is hiring for an assistant professor of developmental psychology to enhance the program’s “long-established strengths in studying the lived experiences of children and youth from diverse backgrounds.” According to the job posting, the department seeks candidates whose research explores areas such as “cultural assets that promote healthy development in the contexts of inequities related to gender, ethnicity/race, social class, and/or sexuality” and “conditions and practices that leverage the psychological strengths of children from historically underserved backgrounds in the U.S. or other countries.”

For that particular position, Soucek said, “it would seem especially strange for somebody to come in and say, ‘I believe in colorblindness and refuse to see people’s race or ethnicity.’”

But I think Souchek is stretching it, for he’s giving an example that has been confected so that only those with a politically correct view of DEI could even apply for the job.  The immigration-asylum clinic isn’t as relevant simply because if the hired person does the job expected, there is no reason to deny him the job because he privately holds the “wrong” views about immigration.  There are plenty of people who can keep their political views out of their jobs.  The one requirement that holds for all job is simply is that people should be treated equally and fairly regardless of immutable characteristics like race, gender, disability status, and so on.   That’s simple adherence to civil rights law.  And even in the case of the “developmental psychology” job, what they should be looking for is people who can best deal with a variety of children. Do they really need to quiz applicants about their private views on race, gender, and sexuality?

But the worst part of this “pro-statement” argument is this. If people adopted Soucek’s rationale, it would result in job descriptions being tailored to those people holding the “proper” DEI views, or, indeed, views on any political or ideological issue that the school likes. I can imagine even biology jobs being tailored this way. But that would tilt all of academia towards the currently dominant ideology—exactly what we don’t want to do in a university, where free and open discussion is the order of the day.

7 thoughts on “The legality of diversity statements

  1. I’m currently going through the immigration process, and I’d feel uneasy about hiring a lawyer to represent me if that lawyer had a personal political belief that people in my position should not be able to immigrate. Doesn’t matter if the lawyer has sworn an oath to represent me to the utmost of their abilities; I’d be worried about what they’d be willing to do for me, unless they had, like, an *exceptionally* good track record. I’m with Souchek on that example.

    1. This is about hiring a faculty member, not hiring a lawyer. You’re allowed to ask your lawyer anything you want, though of course the lawyer may lie. My experience with public defenders, and I’ve had lots as an expert witness, is that they think that their clients are guilty about 85% of the time, but they do their damndest to represent them in court. This is why a defendant never asks their lawyer, “Do you think I’m guilty?”

  2. We shall see about this case. But I would be surprised if there is even a ruling on this one since I don’t think that this person has real standing on narrowly technical grounds. What is needed is someone who did apply, did not get interviewed, and could prove that their application got dinged at the first stage which is where a committee rates applicants solely on their DEI statement. That result might be a matter of public record (but I don’t know for sure).

  3. If departments ask applicants what they “have done or plan to do, not what they believe,” I think it would side-step the free speech issue because the department could claim that they aren’t testing fealty, but simply asking what applicants would do to further the department’s DEI mission. Whether departments should have such a mission is another matter…

  4. ”Brian Soucek, a professor of law at the University of California at Davis, has argued that diversity statements can be constitutional, if used correctly. . . . In order to avoid comparisons to loyalty oaths, he recommends that colleges ask what applicants ‘have done or plan to do, not what they believe, . . .’”

    Translation: we aren’t interested in what you believe, but please give us as many details as you can about your “free exercise” of DEI. You are free to believe whatever you want in the confines of your head, but we simply want to ensure that your practices—or lack thereof—are consonant with our values.

  5. I’d say I’m all for encouraging those from every background to join in and will support them all I could.
    But that is it, I won’t favor over anyone else or force standards or limits.

    The process is very screwed up any way you look at it. Making sure all have the option and making it known is one thing, forcing it is another.

  6. Nobody answered this question last time our Professor posted about this issue, so I’m going to ask again: why didn’t the plaintiff actually apply with that DEI statement? Wouldn’t that make the standing issue way less of a problem? What could possibly be the thinking here?

    And, assuming someone in the future applies to a public university with a DEI statement saying something similar to the plaintiff’s blog post above, or simply one that reads “I do not believe public schools should generally be allowed to compel applicants to make political statements,” wouldn’t that provide far stronger standing? Ideally, this would be done in a state like California, where DEI statements (if I’ve been properly informed) are a sort of “first round cut.”

    Finally, Is there another way to get around this possible standing issue? If it turns out that nobody is allowed to bring a case without applying and then having a school reject them with a message that explicitly says they were rejected for their (poor or lack of) a DEI statement, then how can anyone ever get to discovery to see the emails sent between administrators stating that this was the reason for their rejection? I assume schools are savvy enough to not tell rejected applicants that their required DEI statement did not reflect proper fealty to the political philosophy, so it seems impossible to get such evidence if nobody can get standing.

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