When Abigail Thompson, a mathematician at the University of California at Davis, wrote an opinion piece last fall in the Notices of the American Mathematical Society lamenting the use of mandatory diversity statements in job applications, comparing them to the loyalty oaths of the McCarthy era, it unleashed a torrent of commentary, both condemning and supporting her. Thompson, after praising other efforts to diversify the mathematics profession, wrote:
In 1950 the Regents of the University of California required all UC faculty to sign a statement asserting that “I am not a member of, nor do I support any party or organization that believes in, advocates, or teaches the overthrow of the United States Government, by force or by any illegal or unconstitutional means, that I am not a member of the Communist Party.” Eventually 31 faculty members were fired over their refusal to sign … Faculty at universities across the country are facing an echo of the loyalty oath, a mandatory “Diversity Statement” for job applicants. The professed purpose is to identify candidates who have the skills and experience to advance institutional diversity and equity goals. In reality it’s a political test, and it’s a political test with teeth.
The teeth derive from the fact that 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.
The University of California at Berkeley has made its criteria for evaluating diversity statements public, and they bear out Thompson’s analogy to loyalty oaths. A job candidate will get a disqualifying score if he or she “defines diversity only in terms of different areas of study or different nationalities, but doesn’t discuss gender or ethnicity/race” or if she or he discounts “the importance of diversity.”
The First Amendment does not tolerate laws that cast a pall of orthodoxy over the classroom.
It is worth noting that achieving diversity was not the original (or even most plausible) rationale for affirmative action for African Americans. Diversity took over our discourse only when the U.S. Supreme Court, in the 1978 Bakke case, endorsed diversity over more-plausible justifications, such as remediation for societywide racial injustice and promoting integration by offering salient role models for racial minorities seeking to enter the various professions. Almost all advocates of affirmative action before the Bakke case would have discounted “the importance of diversity” in the only sense Berkeley countenances.
Similarly, a low score is also awarded to a candidate who “describes only activities that are already the expectation of Berkeley faculty (mentoring, treating all students the same regardless of background, etc.),” making plain that the expectations here have nothing to do with the core professional duties of the faculty, but rather their commitment to a particular political ideology about diversity. (Senior administrators at the University of California at Davis, in responding to Thompson, said their diversity statements aim only to assess “a candidate’s readiness and potential for serving the diverse population of students in California.” If Davis follows the Berkeley guidelines, that would be false, but it is unclear how Davis evaluates these statements.)
Perhaps unsurprisingly, those who “apply their research skills or expertise to investigating diversity, equity and inclusion” qualify for high scores, although presumably not if they conclude that the Bakke court was wrong to treat diversity as a compelling state interest when it comes to higher education, or if they question with empirical evidence, as the University of California at Los Angeles law professor Richard Sander has done, whether diversity benefits or harms those it favors.
Ought a state university ask candidates to sign on to a particular vision of diversity in higher education as a condition of employment? Everyone presumably agrees that a public university should not ask a faculty candidate to affirm allegiance to a particular political party, but why not? In a free and democratic society, citizens should not be penalized in the workplace for their lawful political opinions and expression. The private sector often violates this moral principle, but the courts have required the public sector to honor it, with only limited exceptions. Looking at the constitutional treatment of these issues sheds light on the ethical issues at stake in mandatory diversity statements.
American law has long disfavored speech compelled by the government. In 1943, the Supreme Court struck down compulsory pledge of allegiance to the flag in public schools. Writing for the majority in West Virginia State Board of Education v. Barnette, Justice Robert H. Jackson declared: “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.”
The McCarthy-era loyalty oaths in California were finally held unconstitutional by the Supreme Court of California in 1967, not on compelled- speech grounds, but rather because they violated the right of citizens to “freedom of association” by proscribing “membership, past, present, or future, in any party or organization which advocates the overthrow of the government by force, violence, or other unlawful means,” even when a member does not share the organization’s aims or know of them. Earlier in 1967, the U.S. Supreme Court struck down New York’s similar “loyalty oath” as unconstitutionally vague and thus as posing a threat to freedom of expression in the classroom and outside it: “The First Amendment … does not tolerate laws that cast a pall of orthodoxy over the classroom” the Court declared.
Mandatory diversity statements do not affect freedom of association, but they arguably “cast a pall of orthodoxy over the classroom,” at least those classrooms where professors might want to scrutinize justifications for affirmative action, for example. Even though there is nothing in the Berkeley policies to suggest the university would restrict a faculty member’s teaching, by mandating a particular vision of diversity and its value as a condition of employment, the policy does claim this is the “orthodox” view in the California system.
The latter concern comes closer to the real moral and legal problem: In the language of First Amendment jurisprudence, these diversity statements constitute “viewpoint discrimination.” Government cannot, excluding a few exceptions such as political appointments, base a hiring decision on the speaker’s political viewpoint. Wagner v. Jones (2011) offers a good illustration. Wagner, a conservative who opposes abortion, claimed she was passed over for a job teaching legal research and writing at the University of Iowa because of her political views. The trial court initially granted Iowa’s motion to dismiss, but the U.S. Court of Appeals for the Eighth Circuit correctly reversed that decision. As the court put it, “The state can neither directly nor indirectly interfere with an employee’s or potential employee’s rights to association and belief.”
But this is what Berkeley has done by conditioning employment on professing belief that racial and gender diversity are more important, for example, than diversity of intellectual methodology or political viewpoint; indeed, by conditioning employment, in effect, on believing that Bakke was correctly decided, and that diversity is the most important reason for affirmative action. I support affirmative action for remedial reasons, and so categorically reject Bakke. Others reject affirmative action altogether. The state should not be able to make agreement with any of these positions a condition of employment. If we discard that principle here, imagine what other “statements” faculty candidates may need to submit during a second term of a Trump presidency.
