Chronicle Of Higher Education Debate: The Constitutionality Of Required Faculty Diversity Statements

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Following up on last month’s post, Brian Soucek (UC-Davis; Google Scholar), The Constitutionality Of Required Faculty Diversity Statements (55 U.C. Davis L. Rev. 101 (2022)): 

Chronicle of Higher Education Op-Ed:  How to Protect DEI Requirements From Legal Peril, by Brian Soucek:

More and more universities ask or require faculty to describe their contributions to diversity, equity, and inclusion when they apply for jobs, tenure, or advancement. All 10 campuses of the University of California, where I work, now ask for diversity statements, and the University of Illinois made headlines last month when it adopted a similar rule. As the mandates multiply, critics allege that they are a bad idea or, even worse, unconstitutional.

I’ll leave it to others to decide whether diversity statements are effective at promoting a more diverse faculty or a more equitable and inclusive learning environment. But as a law professor and former chair of the University of California’s systemwide academic freedom committee, I can say this: Mandatory diversity statements are constitutional — at least if they are done the right way.

Chronicle of Higher Education Op-Ed:  Diversity Statements Are Still in Legal Peril, by Brian Leiter (Chicago; Google Scholar):

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.

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