Do University Diversity Statement Requirements Violate the Constitution?

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In recent years, universities have increasingly required 'diversity statements' from faculty seeking jobs, tenure, or promotion.  But statements describing faculty's contributions to diversity, equity, and inclusion are also increasingly under attack.  Criticisms first made in tweets and blog posts have expanded into prominent opinion pieces and, more recently, law review articles.  These attacks are having an effect.  Within universities, faculty-wide resolutions for and against mandatory diversity statements have been called and academic freedom committees have been asked to intervene.  Outside universities, lawyers are recruiting plaintiffs to challenge diversity statement requirements in court.

Join our experts in a discussion on Professor Brian Soucek’s recent article in the UC Davis Law Review about these diversity statements fleshing out the criticisms and developing a framework to address if universities can require diversity statements without violating either the Constitution or academic freedom.

Featuring:

Professor Brian Soucek, Professor of Law and Chancellor’s Fellow, UC Davis School of Law

Professor Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

Ryan Lacey:  Hello and welcome to this Federalist Society webinar. This afternoon, August 24, 2022, we discuss whether diversity statement requirements at universities are constitutional and interview Professor Brian Soucek who wrote in a recent article in the UC Davis Law Review on the topic. My name is Ryan Lacey, and I'm an Assistant Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinions are those of our experts on today's program.

 

Today, we're fortunate and have excellent speakers in Professor Brian Soucek, Professor of Law and Chancellor's Fellow at UC Davis School of Law, and Professor Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law.

 

After our speakers give their remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen. And we'll handle questions as we can toward the end of today's program. 

 

With that, thank you for being with us today. Brian, the floor is yours.

 

Prof. Brian Soucek:  Thanks so much. Thanks for having me.

 

      So I assume the people that come to an event like this have some sense of what diversity statements are. It's a little misleading. I'll call them diversity statements probably throughout this, but there's something slightly misleading about that. They are almost invariably referred to as something like statements on contributions to diversity, equity, inclusion. Sometimes, those words are flipped around in a different order. Statements of inclusive excellence, one of our campuses here at University of California calls them.

 

But the common denominator is they're a request either for faculty applicants or for current faculty who are going up for tenure or other kinds of advancement to provide the school, the reviewing committee, a statement of how they've contributed to diversity, equity, and inclusion in their teaching, research, and service.

 

      So here at the University of California where Eugene and I both teach, we've used DEI statements in recent years in two importantly different ways. And I just want to clarify that because I think these two ways have been conflated often in the criticism that you see has pretty widely received.

 

      One is the general way. So at Eugene's campus, since 2018-2019, diversity statements have been required for all faculty applicants, all advancement applications. That's pretty much true throughout the entire UC system at this point. The chair of our appointments committee here at Davis the Law School, this year and anybody for us to consider has to complete a DEI statement on their online application. So that's the general way. 

 

      Then, since around 2018, there's been some funding from the legislature that's been used to do targeted searches at a variety of campuses. In 2018, Berkeley had five of these searches. We here at Davis had eight of them. Riverside had six. And there, it was a much more targeted search looking for people specifically whose teaching, research, and service had a particular relevance to DEI concerns. As the ad said, we are looking for people whose teaching, research, and service would promote the success of under-represented African American, Latino/Hispanic, or Native American students and contribute to the needs of a diverse state.

 

      So that was that one, a much more targeted notion, definition of diversity than we generally use and also was a much more targeted search for what we're looking for rather than these contributions as just one of many ways in which we'd evaluate somebody. These were actually, within these searches, something that was evaluated first. The DEI statements were considered in these searches before other elements of the application, and that's unusual.

 

      So partly because of these specific searches, these targeted searches, and partly because of the growing use overall, the University of California became increasingly a target of criticism, and I think we're an especially attractive target for this criticism.  For one thing, we're a public university, so we're fully subject to the requirements of the First Amendment. Of course, things that I'll say later might apply to private universities as well insofar as they've committed themselves to First Amendment values.

 

      We have, I think, a particularly robust history of academic freedom protections. I think our academic freedom policies are especially robust. And in part, that's because of our sordid history of not protecting academic freedom in the further past. Our history of imposing loyalty oaths during the Cold War era where you see, I think, about half of the professors that were fired nationwide for refusing to comply with the Loyalty Oath requirement.

 

      So for all these reasons, UC is a particularly attractive target for critics. And those three reasons that I just gave really track the three main types of criticisms that we hear. One, that diversity statements allow universities to engage in viewpoint discrimination against faculty applicants and faculty seeking advancement, two, that imposed mandatory diversity statement requirements violate the academic freedom of the faculty, and, three, that diversity statements are really imposing something like a political litmus test or a loyalty oath, akin to those of the Cold War era.

 

      So I wrote the article I did because all three of these are distinctly legal claims, and yet, most of these charges have been made in faculty meetings and blog posts and op-eds, places where the complicated doctrine surrounding each of these three types of claims doesn't really get fully aired. And so that was my goal. My general approach in writing the article was that there is something to each of these three claims, that we can learn something from each of these three claims because after all, diversity statements could be viewpoint discriminatory. They could be a violation of academic freedom. They could be akin to a political test. I just think they don't have to be.

 

      And so what my work has tried to show is what can we learn from each of these charges such that we could do this without violating the Constitution or the academic freedom in which universities' core mission depends? That's in pretty market contrast with the kinds of calls we've seen recently, including this week. The American Enterprise Institute has put out a report calling for the universities to prohibit DEI statements. Just this week, the Academic Freedom Alliance put out a letter that got quite a bit of press urging universities to desist from using DEI statements or at least pause until there can be a thorough airing of the issues surrounding them. I hope my article contributes to that thorough airing and that sessions like this might as well.

 

      So as quickly as I can, let me go through the three charges in order to say something about what we might learn about them. So first is the idea that these are viewpoint discriminatory, in violation of the First Amendment. And you often hear that public universities cannot engage in viewpoint discrimination when they're hiring or perhaps political viewpoint discrimination, it's sometimes said.

 

Now, taken literally, that, of course, can't be true. I engage in viewpoint discrimination all the time when I tell my students they're wrong after I've cold-called them when I grade their exams. We have certain jobs at the university that surely somebody's political viewpoints, the viewpoints taken in their work, is relevant. The reproductive rights institute at Eugene's school surely is taking people's past work in that area into account just like my asylum clinic is, my colleagues over there.

 

      My First Amendment teacher, Robert Post, said some years ago that he imagined a chemistry department that was giving out fellowships based on peoples' views on abortion. And he said, we might think that this is just egregiously viewpoint discriminatory, but what it really is is just the real problem here is that the form of evaluation used here is just irrelevant to the job at hand. And that's the real essence, I think, to the viewpoint, constitutionally and otherwise, to the charge of viewpoint discrimination. It's importing irrelevant considerations into a job description.

 

      And to me, that's really transformative in how we think about this whole issue because what it means is insofar as DEI statements are undifferentiated, or rather the evaluation of them, is undifferentiated across different positions, across different disciplines, then we really do have some constitutional worries. But then that raises some questions, what is relevant to my job description, Eugene's job description, the job description of people in the chemistry department at our universities? And two, who's going to decide that?

 

      And on the first question, I think all too many critics have just assumed, they've just begged the question and assumed that contributions to diversity are irrelevant to my job as a scholar or a teacher or someone engaged in university service. And I need an argument for that, and not just I need an argument, but the relevant decision-makers need an argument for that.

 

      And that goes to the second question, who are those decision-makers? Who should be deciding what's internal rather than external to a given position within a given discipline? And the answer to that brings us to the question of academic freedom because the answer to that has to be disciplinary experts within that field. That's the core meaning of academic freedom, that judgments about what constitutes academic, scholarly, pedagogical excellence within a field are to be made by one's peers, not by the board of trustees, not by the regents, not by the legislature, not by pundits, not by George Will or [Ash White 10:33] writing about this in the Washington Post and assuming that it's irrelevant to our job description. No, it has to be internally.

 

      So the academic freedom point suggests to me that we would have a problem here if the rubrics used, the criteria for evaluation of DEI statements were being imposed from above by administrators as opposed to being generated from below by disciplinary experts within the field. The people who are serving on the committees that are doing appointments, that are voting on peoples' tenure and advancement, they have to be the ones determining what does count as a contribution to diversity, equity, and inclusion within my field? What are the needs within my field in those areas? And how can that best be advanced?

 

      In that way, if that's how it's done, DEI statements are very little different than the teaching statements we file and the research statements we file, anything else we include as part of our application. I think that many of the criticisms we hear of people that just don't trust admissions committees or -- sorry, appointments committees, tenure committees to do the right thing, to treat these in a genuine non-pretextual way, are really just making criticisms of academic freedom more broadly.

 

      I want to make sure that the criticisms that diversity statements are receiving aren't ones that would apply equally to our peer evaluation writ at large. Of course, you can criticize peer evaluation writ at large, but that's a much bigger and different conversation.

 

      So finally, the issue of loyalty oaths. The many cases that sprung up in the 50's and 60's about loyalty oaths, I think, found that the main problem with them, the main constitutional problem, was this sort of guilt by association. The idea that people are being judged on their beliefs, on their association with others who share those beliefs as opposed to being judged on what they've actually done.

 

      And so instead of debating whether DEI statements are akin to a loyalty oath or not, I think the more productive thing to do is just make sure that they're not being used as loyalty oaths. And what that requires, in my view, is an insistence that when we evaluate DEI statements, we are asking people to talk about and then judging them on their actions, their plans, and their past actions that promote diversity, equity, and inclusion in their teaching, in their mentorship, in their research, in their university, and outside the university service.

 

      If you do that, I think there are a few advantages. One, it really lessens the opportunity to game the system. There's a lot of worry that when you start imposing these kinds of requirements, especially in hiring, that people coming from well-resourced schools who are well-prepared for the job market, have great mentorship, are just going to workshop these statements to death and be able to tell the committees exactly what they want to hear.

 

      If the committees want to hear something about your personal devotion to diversity, then that's absolutely true. If, on the other hand, committees like mine want to hear well, what have you actually done to promote diversity, equity, and inclusion in your field, then, it's much harder to game the system. Either you've don’t it or you haven't.

 

      Secondly, and this is really important from a constitutional standpoint, by talking about actions rather than beliefs, it leaves open for space outside the diversity statement context for people to dissent. If I'm not asking you, do you think diversity is just the biggest mission of this university, but rather I'm just asking what have you done to carry out this mission of the university, you are perfectly free in your op-eds, in your faculty meetings, in shared governments to say I think the university is devoting too much time to its concern for diversity, equity, and inclusion. I think we should focus more on something else.

 

      And here, again, think about the analogy with teaching statements. So I have to turn in one of these every year where I report my successes as a teacher, where I give the scores that the students have given me in their student teaching evaluations. Now, I might think that the University of California Davis forces us to teach too much. I might think that they emphasize teaching too much at the expense of our research. I might also think that the use of student teaching evaluations is an egregious affront to academic freedom because it outsources academic judgments to non-disciplinary experts.

 

      My teaching statement is not the place where I make that argument because my teaching statement doesn't require me to state any beliefs at all. My teaching statement just requires me to report what I've done, how I've promoted the university's mission in this area. I am utterly free in all those other contexts to speak out, write op-eds about how I think the school should focus more on research. So I think that analogy does a lot of work here in helping us think through what's appropriate and what really would be a kind of compelled political conformity.

 

      So the difference between my work ultimately and what I see more broadly in the statements that are released, like the Academic Freedom Alliance's, is where most of our critics are calling just for an end to diversity statements, for us to cease and desist as the AFA told us this week. I think the values that they're trying to serve, this idea that we're really trying to find ways to disrupt historical patterns of exclusion within our respective fields is important enough that I'd like to do the work to find ways to do these the constitutional way, the way that doesn't violate academic freedom rather than just throwing up our hands and saying that it's a project that completely needs to be abandoned.

 

      So thanks so much for being here and considering all that. Eugene?

 

Prof. Eugene Volokh:  Thanks, Brian. Very interesting and very important. And I have to agree, this is a difficult question because universities do indeed hire people and promote people based on many things including, we know, the content of their speech, right? Whenever we are reading somebody's article, I would hope it's not a content-neutral evaluation. Occasionally, I hear jokes that appointments committees don’t know how to read, but they know how to count. So the questions you have for publications are naught. There are jokes, certainly, at a good university, we do consider that.

 

And I think Brian is absolutely right, that you have to consider viewpoint, that yes, if somebody in an article expresses some scientific view that we think is contradicted by very well-established evidence like, well, he thinks the Earth is 6,000 years old. Well, at the very least, we would look askance at that. I mean, I think we ought to be prepared for the possibility that he's right and the rest of the discipline is wrong. In fact, that's the way discipline has advanced in many cases in the past. But as they say, they all laughed at Columbus, but they also all laughed at Bozo the clown.

 

      So if you want to say that, you're going to have a much higher burden to establish this quite controversial viewpoint than a noncontroversial one. So I think all those are important things to keep in mind which is why I agree this is an interesting and difficult question, especially as a constitutional matter. There are also academic freedom principles that go beyond constitutional protections.

 

      But I like, in all of these situations, to try to think about how we would think about things if the shoe were more or less on the other foot. So I try to come up with this hypothetical. As with all hypotheticals, it's hypothetical, but at the same time, I like to try to make them at least potentially plausible. So you folks be the judges of whether it is plausible and how you think it should come up.

 

      So one day, we'll have another war and a war that we're going to feel very strongly about, that we, in the sense of the majority, will feel very strongly about, or perhaps the majority in some state, maybe not in California but who knows, Nebraska. And you could imagine a university saying this war is dragging on. A lot of people are sacrificing a lot, including their lives, for this. We think the university should do some things to help the war but then, of course, historically, universities have done that. UC itself has various labs that are associated with the military.

 

      But we want to do a bit more. So for example, when we're looking at this triad of research, teaching, and service, one form of service historically has been popularizing knowledge for the public, popularizing scholarly knowledge for the public. Another has been performing service on university committees. Well, why wouldn't there be military service? So if you decide to take a year off to serve in the military or take weekends off to serve in the National Guard, we're going to count that as service. Or alternatively, if we want to look at your past accomplishments in deciding whether to hire you, that you served in the military would count in your favor and in fact many government institutions including I suspect some universities, although I would think very few for research appointment purposes, do have veterans' preferences.

 

      Or maybe even say look, in our experience, we think we've kind of neglected in our kind of peaceful existence, in our cultural and geographically are removed from the wars that we've been fighting, that the nation has been fighting, we've neglected military studies in some fashion. So for example, I've heard people say that military history, once the mainstay of history departments, has fallen shortly out of favor to the point where we're not studying military history enough, even though military history by any count regardless of your ideology with regards to military matters has got to be a hugely important part of the study of history.

 

      Or let's say we think that veterans coming back to study face their own problems. They may have a physical or emotional difficulty stemming from their service or maybe even not problems. Maybe even they have particular knowledge, particular experience, particular maturity or kinds of maturity that we're not considering enough, that maybe we should harness it more. So we think it's particularly valuable if people who are doing teaching are especially thinking about teaching veterans.

 

      So we're going to say that you're encouraged to mention all these things in your normal research, teaching, and service statements for hiring and promotion and the like. I think you could argue whether it's a good idea or not, you could think that maybe it's misused, but I do think there's nothing and apparently unconstitutional or even extraordinarily dangerous about this. You could even imagine I'm saying we're going to have a separate statement you could optionally, if you want to, include. And we will just consider it as a part of research, teaching, or service, as the case may be but we just want to flag it because we're afraid that people aren't really thinking in these terms and aren't really mentioning things that they've done. Now, I think that might also be viable.

 

      On the other hand, let's say they said everybody on the faculty of the university must include a statement of what they have done to promote the war effort, what they have done to serve our soldiers or military members—I don't want to be accused of service discrimination—what they have done to fight our nation's enemies and promote truth, justice, and democracy, which is what we're fighting for, what they have done to further the success of our war efforts.

 

      Well, I think at that point, we might be a lot more troubled. And so part of it, we might say well this is actually specifically unconstitutional as written maybe because there's some rubric as there is, I think, in some measure at least some of these DEI statements that you've pointed out that says well, if somebody has, in writing this, expresses negative views about the war effort, then naturally, you should mark him down. Now, that would be pretty clear viewpoint discrimination and, as you point out, be viewpoint discrimination in situations that are quite far removed from any possible disciplinary senses within the relevant academic discipline.

 

      But also, we might think that this is the university's way of finding ways of discriminating based on viewpoint. It is a way of signaling to people that they should at least pretend adherence to a particular viewpoint. And it's a way of signaling to people that if they do outside these statements say things that are critical of the war, maybe things won't go so well for them come promotion time or especially come hiring time because, of course, hiring is the stage at which discrimination is most easily accomplished and hardest to identify.

 

      So I think we would be troubled by it, and I think we should be equally troubled by these diversity statements. And, again, maybe less so if it's just well, we have a lot of, let's say, non-white or non-white/Asian students and some people think, and there would be good reason to think, that we need to think specially about how to teach them so if you have thought especially about it, please let us know because this is something that might be one factor in your favor. That might be permissible.

 

      I think when you go a lot further than that, I think, at the very least, this raises serious problems of academic freedom, academic integrity, and ideological tolerance that we think universities should engage in even if there's no absolute mandate of viewpoint neutrality there.

 

      So the other question is how do you deal with that? So one possibility, as a constitutional matter, would be to say well, there are facial challenges and there are as-applied challenges. And if there is a rule that says you cannot be hired or, even, it will count against you that you hold this viewpoint, that may be, except with the viewpoint, discrimination, maybe justified for whatever reasons but that may be unconstitutional. Whereas, if all they say is please give us all this information. We're not going to tell you what we're going to do with this, but we'll tell you we very much value diversity and we'd love to hear about your contributions to diversity and fighting structural racism and this and that. Wink wink.

 

      But they don't say the "wink wink." We just think there's a "wink wink." Well, that's not good enough. You need to prove that there's viewpoint discrimination. That's a possibility as a legal matter. Although one might say that as a policy matter, when people are writing statements calling on universities or maybe boards of regions or state legislatures to setup particular rules, maybe they ought to take them up [inaudible 0:27:11].

 

      The last thing I want to mention is what about focusing on the level of the institution that's setting up this rule because I do think there's a lot that's appealing about what Brian is saying in distinguishing things that are set forth by a particular department, which presumably is acting based on real knowledge of the discipline. Let's say the history department saying look, you know, we've looked at our classes and sure, there's a little bit of military here, a little bit of military there, but our experience of the discipline of history is that military history is really something that you need to have a separate course on. And here are the reasons why, and people have tried it. Without that, it just doesn't work as well, and there are all of these unexplored areas in modern military history. People aren't doing enough military history of maybe modern colonial wars or post-colonial wars or whatever else. That's one thing.

 

Whereas, if the board of regions says or the office of the president says oh yes, we should have more military stuff in here like the history department should teach more military history, we might say what do they know about what's effective history teaching? And that may make us think that their motivation is ideological discrimination rather than a sincere attempt to apply disciplinary arts.

 

      At the same time, we can't ignore the fact that many disciplines are overwhelming ideologically skewed for a variety of reasons, some of which may be perfectly permissible. Some people theorize well, maybe republicans or conservatives aren't as good at something because their ideology blinds them to certain things, whereas liberals and progressives, their ideology's better and more apt and consistent with the norms of the discipline, actually opens their eyes. I don't think so, but it's not a logically impossible situation. Or you might say in certain disciplines, people are more drawn to it if they have particular kinds of ideologies or you may even say more broadly that people who are more conservative minded are more likely to be drawn to the business world, whereas people who are on the left are more likely to be alienated from the business world. So as a result, we get that kind of ideological skew.

 

      Or, of course, human nature being what it is, you might say that if the department is two-thirds left and one-third right, then hiring decisions will predictably be mostly on the left because if it takes a majority, and majorities will routinely come up that way, even if everybody's totally sincere and trying to come up with the best people. Naturally, who's the best person? Well, the one who thinks like me, right? That's human nature. So then that'll become three-quarters and one-quarters, and eventually, 90/10 or 90/8/2, which I've seen some stories that I haven't checked the data myself, suggesting that [inaudible 30:09] to certain things as well.

 

      So then, one should wonder, to what extent should we say well, yes, these departments all say that having a particular set of attitudes and predispositions or even actions with regard to fighting structural racism and such is a necessary feature of law, of nursing, of medicine, of mathematics, of physics, of all of these things because we can come up with some s connection. Everybody can come up with some connection. All things are connected in some way. So one might say that maybe this is the ideological university, ideological monocle you're talking, at least as much as genuine deference worthy judgments about disciplinary merit and excellence and that maybe there ought to be more judicial second guessing of that than just judicial second guessing of other seemingly less ideological criteria such as you need to publish several articles or this PhD thesis is unsound because it fails to consider this, this, and this.

 

      So those are the concerns that I have, and I just -- another way of putting it is I just want to know what the rules are, right? Because there is an ideological monocle, I'm sure, in universities, as best we can tell, in many universities. There isn't, thankfully, in legislatures throughout the country. And it's predictable that there wouldn't be because the nature of the political process means that if some party gets a super, super, super majority, then what'll happen is they'll get pretty extreme. Another political entrepreneur, perhaps from the other party, will move that party more to the center, things will even out. So that's why it's unsurprising that America has big 50/50 division, sometimes swinging 60/40 either way.

 

So maybe if we know what the rules are, then maybe conservative legislatures or university presidents and regions appointed by conservative legislatures will know what kind of institutional shaping they could impose that California, which is at this point, does seem to be political monocle ultra on all levels, at least for now, could set up, whether through the legislature or through the regions or through university presidents or through departments, could set up this preference for people who have particular views or approaches to diversity. Whereas Nebraska could setup things as structure for preferences for people who have particular approaches to military matters or foreign policy matters or economic policy matters or such.

 

      So I'd just like to know what the rules are, and I'm sure that there are a lot of people who have the same view. I shouldn't say just like, I do like to know what the rules are. My presumption is that it's probably better for whether legislatures or presidents or departments, not to require everybody to talk about how they're furthering the war effort or how they're furthering diversity. So I think on balance, probably, despite the excellent points that Brian makes, even at the department level, it's something I would be pretty skeptical about.

 

      But if I'm wrong on that and it is permissible, then I'd like to know how it'd be permissible for both sides.

 

Prof. Brian Soucek:  If it's okay with you, Ryan and FedSoc, let me just say a couple things in response to Eugene before. I know we'd love to get to your questions for people in the audience but -- so the last bit that you were talking about, Eugene, I think is a good example of the type of criticism that I see as fully applicable to peer review and academic freedom at large. So the mono culture point is a genuine concern and a deep concern about a kind of disciplinary capture, which, when it happens, is a potentially fatal defect to the entire system of academic freedom. If there is that kind of capture within a department or worse, a discipline, that's when the system breaks down, and I don't think that's anything specific to DEI statements.

 

      Moving backward, it's a great example, the veterans' preference slash what have you done to promote the war effort requirement. So let me just offer two spectra. So one would be one of the thickness of the commitment that's being imposed upon you or that's being sought. So promoting the war effort is a different level than, say, a university that wanted public facing intellectuals, wants people that are engaged, wants people that are addressing the main problems of our time. Where, of course, in World War III, the main problem of our time is very likely going to be seen as the war effort, so what are you doing? But, of course, other people might be taking different routes to that. Some might be working on the environment or what have you. That would be a thinner conception of what's required as opposed to the more thick conception where we say, what are you doing for the war? What are you doing to fight fascism or what have you?

 

      Now, I tend to see diversity statements, when done well, as being or having the potential to be on the thinner side than I think most of the critics see it. So see it as not specifically about structural racism, for example, or what have you done to be an anti-racist? Although, of course, there are places where that has been the goal. Schools have said we're going to become an anti-racist law school, and so that's a much thicker conception of what's being sought there.

 

      I certainly think our DEI requirement at the University of California is not that. I've probably read 100 of these statements in the last two weeks as chair of the appointments committee, and they're all over the place in terms of what people have done in their teaching, in their research, in mentorship, in their service based on what their background is, based on what their skills are, based on whether they're in a field where there's a kind of natural relationship to these topics or not.

 

And so that's the other spectrum that I just want to throw out is the spectrum of internal to external to the discipline or job in question. And that's not a binary, it's definitely a spectrum. So when we ask about, in Eugene's theme about promoting war effort, how does that apply -- will that be internal? Or often people talk about patriotism statements, will that be internal to the chemistry department or some other department in the same way that promoting diversity, equity, inclusion, including in your field, is.

 

And I think there's a difference there. I think there's a variety of ways in which people can do different things in different fields in which the needs are different in different fields. So in some fields, there's such under-representation, whether based on gender, on national origin, based on ethnicity or race, that a kind of targeted mentorship, a sort of upending of the way things have been done, might be quite necessary just to not have an all-male philosophy department. My PhD's in philosophy. So that's one place where efforts are needed.

 

But another in philosophy, I was a philosopher of art, and there, many of the efforts have been in terms of diversifying syllabi, just diversifying the types of artworks that we look at when we're teaching that we use as examples. Peoples' DEI statements in philosophy of arts are largely talking about that. Have you continued to use the same examples that you were taught in grad school, Duchamp and Beethoven, or have you come up with new things that are reaching students that come from different backgrounds and that raise a different set of philosophical issues?

 

And so there's a breadth of ways in which these issues could be addressed and promoted and where you can get credit for your DEI efforts. That's broader than what I see in the hypothetical that you gave us, Eugene.

 

Prof. Eugene Volokh:  Great. Thanks. Thanks very much. So I think we have time for questions. And, yeah, so Ryan, you tell me how you want to run it. I take it you're just going to go through the chat and the questions and pose some suitable ones for us?

 

Ryan Lacey:  Certainly. And, actually, I want to start with a question of my own for Brian. I was wondering about land acknowledgement statements of indigenous land at universities. It's a tangential issue, one that has popped up at the same time as diversity statements. Can you apply some of your analysis to land acknowledgements at the university level and if the same reasoning applies?

 

Prof. Brian Soucek:  Oh, sure. So there's clearly a difference between statements being made by the university versus statements that they are requiring people within the university to make. And so there are instances where I might be required to include certain resources on my syllabus, or at least strongly, strongly urged, regarding harassment reporting or disability accommodations as part of our way of complying with our Title IX or ADA obligations.

 

But there are other types of things where if the university wanted me to endorse its mission on my syllabus, there would be some serious problems there because crucial to my third point about loyalty oaths is the idea that there's always space outside -- that there's space somewhere—I think this is something that runs through several areas of First Amendment case law—that there is, whether it's government funding, whether it's public employment, that there is an area in which you are free to dissent to the mission of the university, even if you can be required as part of the program as a government employee to advance the university's mission.

 

So the land acknowledgements are potentially problematic in that way.

 

Prof. Eugene Volokh:  So I appreciate Brian's point, and I agree that land acknowledgments in some situations, mandated ones, were beyond constitutional, that if the professor is required in his own voice to say on his syllabus, “I want to acknowledge that this is the ancestral land of the American Indian Tribe ‘X’,” then that would be a speech compulsion.

 

      It's true, therefore, many government employees that would be a permissible speech compulsion because you're required to say all sorts of things as part of your job, but given the suggestion in Garcetti v. Ceballos, the Supreme Court's precedent on that speech is part of the job issue, that the rule would be different for university professors. And given the cases in the Fourth, I want to say, Ninth, and Sixth, and maybe Fifth, though that's a closer call there, that take that suggestion and run with it and say that the First Amendment does presumptively protect university professor speech. I think it would protect them from having to say that, especially in a situation where it's clear that it has nothing to do with con law two or First Amendment law or chemistry or whatever else.

 

      If the university wants to just say this and just say, for example, add to your syllabus, here's the statement. The regents say the following, then I think that would be constitutionally permissible and maybe not even a violation of academic freedom as such. But I do think it should violate norms of academic honesty and integrity, which of one of the most important of the norms is if in class, an argument comes up, then you need to be -- at the very least, the university needs to allow, expiration of counter arguments, that the university isn't supposed to be out there setting forth dogma that is to be accepted unchallenged. Some of their employers might be allowed to do that for their own employees and maybe, again, as a First Amendment matter, maybe even the university would be allowed to do that, but that's not how we understand our rules of academic freedom.

 

      So it seems to me that if the university does include that, then a faculty member can't be disciplined or can't even really be faulted on grounds that he's bringing ideology into the classroom or adding, as one professor, I think there's now a lawsuit about this in Washington State, one professor at University of Washington I believe, did that. He had a little response saying I think this is all -- all this land acknowledgement stuff is nonsense. So if he just did that in his—I think he's a computer science professor —in his computer science class at the start of class, say oh, by the way, let me tell you why I'm against land acknowledgements, I think we could fault him for bringing ideology into a subject in a way that's unrelated to it. That would be a very legitimate basis, again, for faulting him, maybe not for disciplining or maybe for disciplining him.

 

But once the university brings this ideology into the classroom, even in a way that it's just a university statement and not the faculty member's own statement, then it seems to me that the faculty member isn't doing anything wrong by expressing the contrary view, and in fact, maybe doing some good by encouraging students to think critically about these kinds of statements even from the administration, maybe especially from the administration.

 

Prof. Brian Soucek:  The university could put the land acknowledgement on the wall of every classroom and, as Eugene said, a professor could then make a statement where she says here's where I've got a problem with this, just like I could criticize the art in my classroom. I might criticize the fact that all the pictures, the portraits, it certainly isn't true at Davis, but that all the portraits in a particular classroom are old, white men or something. But that was the university's statement and who they wanted to honor in both of these cases. 

 

Ryan Lacey:  Cool and moving onto some audience questions now. First one, Professor Soucek says loyalty cases were about guilt by association and not about what people have actually done or plan to do. But wouldn't courts still have found a problem or even a worse problem if universities had required professors to discuss what they had done or plan to demonstrate further loyalty to the United States?

 

Prof. Brian Soucek:  Oh, I mean, the idea was that if somebody was trying to actually overthrow the United States, that that was something universities and other state actors could take account of. The fact that you were in the same organization as somebody who wanted to overthrow the United States was not enough to get you fired. And I think the analogy here is if all we're asking is hey, what's your view on diversity? And somebody says, gosh, I just think "How to Be Antiracist," is the best book I've ever read, etc., etc., you're getting credit for something somebody else has done, not for anything that /you've done. It's the flipside of the guilt by association. Here, you're getting credit by association. And we shouldn't care whether somebody thinks that’s a good book or a bad book. We should care what somebody has done to advance the university's mission as currently expressed.

 

Prof. Eugene Volokh:  So, Brian, I think there's a lot to be said for what you're saying that if you do want people who are acting to do acts like going out there and fighting the war or going out there and actually, let's say, mentoring black and Hispanic high school students, that's also speech but the action, it's not just they're expressing views about that, but they're actually doing it.

 

      That may be very sensible thing, but I don't think the line is between guilt by association and other things because let's say he doesn't just say oh, I love Ibram Kendi's, "How to Be an Antiracist," let's say he actually says, “I firmly believe X, Y, and Z, not in some rule book, I just believe X, Y, and Z.” You can get credit for that belief. It's not credit by association. It's credit, first of all, so, it's credit for your belief --

 

Prof. Brian Soucek:  That's fair.

 

Prof. Eugene Volokh:  -- now it could be credit for bullshitting, right? One of the concerns may be that you're getting credit for just pretending. And then that may be actually both unfair to people who really have walked the walk but also corrupting of the academic process where we're encouraging people to be insincere. But on top of that, you're getting credit for adhering to particular viewpoints. So I think that's the objection.

 

      So I think if the loyalty oaths -- let's set aside the loyalty oath cases for all their errors, at least focused on specifically there's something special about violent overthrow of the government. So let's set that aside. Let's say there was a statement saying not just --

 

Prof. Brian Soucek:  Sure. Sure. Eugene, sorry to cut you off, but in my focus on the loyalty oaths, I was trying to say what those cases do distinct from the viewpoint discrimination cases that I'd already talked about.

 

Prof. Eugene Volokh:  Got it. Fair enough. Fair enough.

 

Prof. Brian Soucek:  So I completely agree that imposing the viewpoint is itself is a problem. And then the loyalty oath, I think, adds an additional type of problem and concern. The viewpoint that gets us to the job relevance issue that we discussed earlier, the additional thing I think with the viewpoint is this idea of being judged based on your beliefs rather than your actions, based on your associations with others, your membership as opposed to what you've actually done and cutting across both is an idea that we would be far better off if we asked people about actions and plans as opposed to beliefs.

 

      I've had a sense of frustration as I've read the 100 diversity statements when people -- when I read people, I think, telling you what I think they want me -- what they think I want to hear, you know, that they think diversity is just the most important part of their job or something, I don't care what they think about that. I really don't. I care what they've done.

 

Prof. Eugene Volokh:  So, Brian -- I'm sorry, go ahead.

 

Prof. Brian Soucek:  And lastly, I think that's now the official position, jointly, of the UC system-wide faculty senate and the relevant administrators who work on these issues as of recommendations from just a couple months ago. 

 

Prof. Eugene Volokh:  Well, Brian, I'm glad that that's what you care and what you don't care about. I think that's right, the right approach. I wonder how many of our colleagues do care about that, how many of our colleagues do want to use this as a screening mechanism to hire more people either as a means of bypassing the restrictions imposed by Prop 209, that this is just basically a way of trying to get more black and Hispanic faculty, or that they just want to hire more people who are ideologically like-minded, either because they just think that those are better people, better human beings because after all, that's human nature, I get, to think that but based on ideology, or because there are people going to them end up voting in faculty committees and hiring decisions and such on a wide range of other issues and ways that the screeners want. And that even if some of that is people just pretending, they may figure that we want people who are willing to pretend because maybe they're going to continue willing to pretend in those committees as well. I wonder if -- how many --

 

Prof. Brian Soucek:  Right, but I wonder -- 

 

Prof. Eugene Volokh:  -- always think that.

 

Prof. Brian Soucek:  Well, but I wonder about how many of our colleagues do that with research statements. Your mono-culture point goes equally to that. I wonder how often people use the dinner at a faculty call-back to suss out whether somebody is collegial in a way that has historically been tied to weeding out people of any number of backgrounds and identities. So, of course, these are real problems and so then, what's the answer? You stop having people submit research papers? No, of course not. Similarly --

 

Prof. Eugene Volokh:  Well, maybe you have things that are a little less targeted, a little less convenient to use as ways for that. So it's one thing to have dinner --

 

Prof. Brian Soucek:  Right. It's hard for me to think of anything that's more convenient for weeding out ideology than a research statement. But in terms of the recommendations made system-wide that you're aware of here throughout the UC system, insofar as those are distributed and taken to heart such that what's being requested in the actual job announcements is a statement of what you have done as opposed to your beliefs, insofar as that's clarified in the way that the recommendations recommend, then I think we sidestep those issues.

 

      I mean, the alternative is, of course, to do away with it entirely. And as I said, I think it's serving an important enough goal that I'm willing to work on getting people to do it right rather than trying to ban it.

 

Prof. Eugene Volokh:  Ryan? I know there are a lot of questions and not a lot of minutes left so --

 

[Crosstalk]

 

Ryan Lacey:  Yeah. Sorry. Absolutely. Another question is if an academic believes entirely in the equality of opportunity rather than an equality of outcome and believes that promoting intellectual diversity rather than racial, ethnic, etc., etc., diversity is important, how can an aspirant to a faculty position check the boxes, the DEI boxes, without violating their conscience?

 

Prof. Brian Soucek:  Yeah, good. So, again, assuming that nobody's asking you what you believe and so if the question is interpreted along the lines of, say, how has a diverse variety of students thrived under your watch? And do you have a story to tell about that? Then that strikes me as a contribution to diversity. Some of the things that I've seen repeatedly in the statements that I've read in the last couple of weeks and that I have in my own is efforts to make our own case books, to use open source case books to lessen the costs imposed on our students. I use my own equal protection and art law materials now because that has a diversifying effect of making law school a more accessible place.

 

      I don't think that runs against the conscience of somebody who believes in equality of opportunity. I would think that somebody who believes in equal opportunity would want to make efforts like that. So, again, it depends on how thick or how thin we see the content of what's being requested here.

 

      If the idea is you have to endorse the diversity rationale of Justice Powell's decision in Bakke, that's a thick conception of diversity. That's clearly not what we're imposing here, or I assume anywhere, or else we would be weeding out all of my and Eugene's critical race colleagues who have made careers out of destroying the diversity rationale in Bakke. That's just not what we're looking for. And so I would look for ways in which somebody that believes strongly in equality of opportunity has promoted opportunities. 

 

Ryan Lacey:  Kind of combining a few questions here to get the most bang for our buck. Essentially, how can we ensure that these diversity statements or the reviews of these diversity statements won't be used by universities to screen out conservative or other people whose political beliefs are not in line with the university?

 

Prof. Brian Soucek:  So insofar as beliefs are being screened, then it's being done wrong. Insofar as there is some kind of correlation between somebody's political ideology and their success at promoting the success of a diverse array of students or of speaking to the concerns of a diverse state like California since we are after all a public university, then that strikes me as not the university's concern anymore than it was if any of Eugene's earlier hypos about, we both think this is unlikely but, if there were a case that republicans are bad at some field, well, that would be too bad for republicans in that field. So too here, this is part of the mission.

 

      Now, if that is an ideological screening, then that's inappropriate. If there is some correlation that people from underrepresented backgrounds tend to be better at a kind of mentorship that helps diversify their profession, well, that seems like people that have a set of skills that we need to be relying on more.

 

Ryan Lacey:  Any thoughts, Eugene?

 

Prof. Eugene Volokh:  No. I'm happy to go to the next question.

 

Ryan Lacey:  Perfect. So to close this out, I think this will probably be our last question. So what does it mean for a diversity statement to be done well? And can that be measured objectively? 

 

Prof. Brian Soucek:  So my guiding star in all of this is ask whatever question you have about diversity statements, about teaching statements or research statements, can it be done objectively? I don't fully even know what that means in those other contexts. Does that mean I think it's totally relativist and there is not such -- no. But I think the same way that we measure merit in all other areas of our jobs as academics, the notion of academic freedom as it's come down to us over the last century is that that's done by entrusting these decisions to the good faith efforts of experts within the discipline, that they're the ones who are going to jointly define what counts as an advance in their field, as a contribution to their field. That's all we can expect of the evaluation of diversity statements as well.

 

Prof. Eugene Volokh:  I think there's a lot to what Brian says, that there's never any assurance that any rules are going to be implemented in a fair way. That's not a reason to have no rules, but it might be a reason to be skeptical about some. And I think one of the things is that at least as they have been, say, have been articulated least in many situations, maybe not the optimal ones that Brian describes, but as they've been articulated in some of the things that even he mentions that he says may be going too far, they have at least two properties.

 

One is they are particularly well-suited, particularly well-suited to viewpoint discrimination. Now, with a research statement, look, if I'm -- it's true that if I do a research statement on First Amendment law, people certainly could say oh, I don't like his ideology so I'm going to exclude him, although inevitable if we are considering people's research, it has to be done, but at least there will be a pretty broad zone of people where you don’t expect there to be a lot of ideological objections, at least of that sort.

 

So if somebody's, for example, in a different department is -- my research statement is to study these kinds of mathematical formulae, well, then, at least it's a little less likely that it will be used, at least for, as I said, kind of ideological discrimination. Maybe there's some internal war for the soul of mathematics, just purely into the disciplinary wars. Some people are more algebraic, some geometricizes. I'm sure that's not right, but you can imagine something like that with terms that we don't even understand. Maybe that they would trigger that, but at least it would be less suitable to a comprehensive ideological discrimination. These things, I think, are unusually well-suited for it.

 

      They are also unusually well-suited, seems to me, to send a message that this is what we expect at the university, this is what you're at least going to have some explaining to do if you do express outside views of a subject because next time somebody values them, they're going to do it through the lens of well, but I read his op-ed and now I'm going to look at this a lot more skeptically. Maybe, again, maybe that's not enough to make a constitutional dilation, maybe the value of these statements is sufficient to justify them despite this risk as a matter of academic freedom and as a matter of proper institution building. I remain skeptical about it.

 

Ryan Lacey:  Well, we've come up to the end of our time, but I would like to thank both of our experts here today for their valuable time and expertise. And I would like to thank our audience for joining us and participating, especially with those great questions. I'm sorry we weren't able to get to all of them.

 

Prof. Eugene Volokh:  And I want to --

 

[Crosstalk]

 

Ryan Lacey:  Sorry, go ahead.

 

Prof. Eugene Volokh:  I'd like to thank Brian for coming in and visiting with us. As the audience knows, the way we like to do things at The Federalist Society is make sure that we have people on both sides of the subject and best of all, if some of them are people outside who can bring their perspective to us, so we don't become an echo chamber. So that's why I particularly appreciate it when colleagues from across the aisle in some measure come and join us. So many thanks, Brian.

 

Prof. Brian Soucek:  Thank you for having me.

 

Ryan Lacey:  Yeah. Absolutely, absolutely. Now, we welcome listener feedback by email at [email protected]. And as always, please keep an eye on our website and your emails for announcements about upcoming webinars and other programs. Thank you all for joining us today. We are adjourned.

 

[Music]

 

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.