Diversity Statements Are Still in Legal Peril

Brian Soucek, a law professor at the University of California at Davis, assures readers that diversity statements “are constitutional — at least if they are done the right way” and reveals that the University of California is changing its approach to their utilization accordingly. In so doing, he effectively admits that earlier criticisms of the legality of diversity statements, including mine, were in fact correct, which is why changes were needed. Alas, Professor Soucek does not openly acknowledge that the critics were right, even as he misleads readers about our views and offers false assurance to proponents of diversity statements at public universities.

Referring to my argument that Berkeley’s use of diversity statements was unconstitutional “viewpoint discrimination,” Soucek attacks a strawman: “Critics often say that public universities, bound as they are by the First Amendment, can’t discriminate against students and employees based on their viewpoint.” I said nothing of the kind. I said, correctly, that “Government cannot, excluding a few exceptions such as political appointments, base a hiring decision on the speaker’s political viewpoint.” That Soucek “engaged in rampant viewpoint discrimination,” as he puts it, when he graded students’ exams, is irrelevant: As Soucek admits, you cannot mark down a chemistry exam because the student opposes abortion. So, too, you cannot decline to hire a faculty job candidate who believes in affirmative action for African Americans as a remedial measure, but not in the “diversity” rationale that the Supreme Court invented in 1978.

Soucek complains that critics “assum[e] rather than argu[e] that DEI contributions are not part of the job description for most academics,” and he quotes my observation that diversity has “little or no relationship to a faculty member’s pedagogical and scholarly duties.” He 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 he or she “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. If Berkeley and other campuses are abandoning this requirement, so much the better.

The key to lawful diversity statements, Soucek suggests, is that they be imposed under the umbrella of academic freedom: “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.” Berkeley and other UC campuses can avoid legal problems, in other words, as long as diversity requirements represent “criteria experts within the discipline conscientiously judge to be relevant to the job.”

University leaders should take note: This rationale would rule out almost all existing university diversity-statement requirements, which are administratively imposed. (Soucek concedes as much.) To meet Soucek’s proposed standard, departments must be able to decide on their own if actions in support of “diversity” (as distinct from the usual pedagogical duties of faculty) are relevant to the job. And it must further be the case that peers in that department’s discipline at other universities concur such actions are relevant to successful pedagogy in that discipline.

Those are demanding standards that no existing diversity-statement schemes meet. I am skeptical that many will. Under these standards, it must be genuinely optional for departments to require diversity statements: They must be free to exercise their academic judgment to the effect that such statements serve no purpose in their discipline. Second, it is not enough that a particular department claims that “diversity” statements are relevant; it must really be the case that disciplinary peers concur. That is how tenure decisions work, after all: Departments seek the expert opinion of disciplinary peers elsewhere in evaluating whether the candidate’s work meets the relevant standards of excellence. Absent evidence that a particular discipline views diversity as relevant to the job, a rogue department could simply appeal to academic freedom as a mere pretext for unlawful viewpoint discrimination.

This suggests a final problem. Suppose 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 courts would approach with skepticism such an imposition of ideological conformity under the pretext of academic freedom.