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That’s generally the way things work with bullies and hostage takers. Appeasement leads to more bullying and more hostage-taking. But there’s an additional reason why appeasement by universities will not work in the current moment. The anti-intellectual ideologues (no, that’s not an oxymoron) running education policy within and adjacent to the White House do not wish to reform higher education; they want to break it. A university that concludes it can survive only by bending to the Trump administration’s demands will find that what survives is not recognizable as a university.
Consider just one aspect of the astounding ultimatum that three agencies of the Trump administration sent to Harvard. It contained this demand: “Every department or field found to lack viewpoint diversity must be reformed by hiring a critical mass of new faculty within that department or field who will provide viewpoint diversity.”
“Every department” includes the sciences. I majored in physics at Harvard in the 1980s. At the time, there was debate about how many dimensions of space-time string theory should postulate as well as whether string theory was valuable at all, given its failure to make falsifiable predictions. Similar debates now rage. Suppose Harvard had acceded to the administration’s demands, including for viewpoint diversity. The administration’s proposed agreement included a requirement that Harvard appoint “an external party, which shall satisfy the federal government as to its competence and good faith” to conduct a viewpoint-diversity audit. How exactly would such a body decide how many string theorists, how many string-theory skeptics, how many solid-state physicists, how many cosmologists, and how many experimentalists the Harvard physics department should employ to achieve adequate viewpoint diversity?
If Harvard had acceded to the administration’s demands, would it have been obligated to hire creationists to its biology and geology faculty to achieve viewpoint diversity?
Perhaps the Trump administration wouldn’t care about diverse views about physics. After all, the focus of the viewpoint-diversity demand is supposed “criteria, preferences, and practices ... that function as ideological litmus tests.” But what counts as ideological?
House Speaker Mike Johnson — a close Trump ally — has done legal work for the Creation Museum and Ark Encounter, which he describes as “one way to bring people to this recognition of the truth, that what we read in the Bible are actual historical events.” Other so-called “young Earth creationists” are likely well represented in the Trump administration. If Harvard had acceded to the administration’s demands, would it have been obligated to hire creationists to its biology and geology faculty to achieve viewpoint diversity? It is not unrealistic to think that any auditor the Trump administration would approve would regard acceptance of evolution as an unacceptable ideological litmus test. So too for acceptance of the reality of human-generated climate change.
To be clear, substantial viewpoint diversity is often a virtue in an academic institution, at least when the varying viewpoints reflect the diversity of views among knowledgeable people in a field. An economics department can benefit from interchange among and opportunities for students to study with neoclassicists, Keynesians, and monetarists. Methodological diversity is also valuable. Most good law-school faculties include doctrinalists, legal historians, empiricists, philosophers, economists, critical theorists, and more.
However, that doesn’t mean that all forms of viewpoint diversity are equally valuable or even valuable at all. The creationism example makes that clear for the natural sciences, but the observation also holds true in the humanities, the social sciences, and professional schools. Is a philosophy department sufficiently diverse if it numbers among its moral philosophers utilitarians, deontologists, and skeptics, but no Aristotelians who believe that some people are rightly born to be enslaved? Must a political-science department appoint people whose work asserts that the 2020 presidential election was stolen, even if they offer no credible evidence for that view? Should a medical school be required to diversify its faculty by adding anti-vaxxers?
Moreover, it should be open to an academic institution to build on its strength. The University of Chicago economics department in the 1970s and 1980s grew its reputation by favoring libertarian-leaning neoclassicists. The Yale English department became a center of deconstructionism in the same period. In my own field of law, the George Mason University Antonin Scalia Law School and the University of San Diego School of Law have made constitutional originalism a focus of their faculty and programs. Whatever one thinks of any of these particular orientations, they reflect legitimate choices that create cross-fertilization of ideas among like-minded scholars and special opportunities for students who wish to study from a particular viewpoint or methodology. Specialization of this sort contributes to what Yale Law dean Heather Gerken calls “second-order diversity,” which is itself valuable and, in any event, should be a matter of institutional self-direction.
Meanwhile, the same Trump administration demand letter that, in the name of diversity, would impose on Harvard an affirmative-action program for under-represented viewpoints — surely intended to mean conservative ones — also demands that Harvard “shutter all diversity, equity, and inclusion (DEI) programs, offices, committees, positions, and initiatives.” The letter thus reveals its own lawlessness. Recipients of federal funds like Harvard have implemented DEI programs in part to satisfy their obligations under Title VI of the 1964 Civil Rights Act. Yet the Trump administration demands that such programs — which it is charged with enforcing — be shut down and a new one wholly outside its jurisdiction and in no way responsive to any illegal conduct be erected in its place.
Harvard was right to reject the Trump administration’s unlawful and unreasonable demands. Other universities in the administration’s crosshairs should take inspiration from its leadership.
This article is republished from the Dorf on Law blog.
