How to Protect DEI Requirements From Legal Peril
Chronicle of Higher Ed | Brian Soucek
A law professor and former chair of the University of California’s systemwide academic freedom committee provides a roadmap for how universities can circumvent charges of discrimination and unconstitutionality when vetting faculty for jobs, tenure, or advancement via mandatory DEI statements.
“Critics often say that public universities…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.)…”
“What matters constitutionally is whether the views being judged are relevant to the position in question… Critics are simply stipulating that it’s not part of my job… to ensure, for example, that a diverse set of students flourish in my classroom. And yet my university sees this as part of its ‘core mission’ — something ‘integral to [its] achievement of excellence…’”
“What difference is there between a faculty member who declines to submit an optional DEI statement and one who writes ‘No contributions to diversity during this review period’ on their mandatory statement? In either case, the faculty member won’t get whatever recognition or reward their contributions to diversity would have received…”
“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…”
“The dangers raised by critics of diversity statements are really the dangers and downsides of academic freedom. Diversity statements are no different than teaching and research statements in this regard. The latter, too, are mandated from above, yet we seldom hear complaints about compelled speech…”
“Instead of debating whether mandated diversity statements require something akin to a loyalty oath, we can simply ensure that they don’t. This is fairly easily done: Universities just need to ask faculty and faculty candidates about what they have done or plan to do, not what they believe, when it comes to advancing diversity, equity, and inclusion in their field…The more diversity statements are like the kinds of teaching and research statements faculty are already accustomed to providing, the less controversial they should be.”
Related:
Diversity Statements are Still in Legal Peril (Chronicle of Higher Ed, 6/1/22)
Can $1.5 Billion Help Diversify the Sciences? (Chronicle of Higher Ed, 5/26/22)
