Higher Ed & DEI

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Sam Fendler:  Hello, everyone, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an Assistant Director of Practice Groups with The Federalist Society. Today, we’re excited to host “Higher Ed & DEI,” featuring Ilya Shapiro and Professor Todd Clark. Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. He has previously served as executive director and senior lecturer at the Georgetown Center for the Constitution, as vice president of the Cato Institute, director of Cato’s Robert A. Levy Center for Constitutional Studies, and as publisher of the Cato Supreme Court Review.

 

      Professor Todd Clark is Associate Dean of Academic Affairs & Professor of Law at St. Thomas University Benjamin L. Crump College of Law. Before St. Thomas, Professor Clark was Professor of Law at North Carolina Central University School of Law, where he taught Business Associations, Contracts, Corporate Justice, Employment Discrimination, and Hip Hop, Law & Justice. Professor Clark is also preparing to take over as Dean of Delaware Law School, and we congratulate him on his new position.

 

      Our moderator today is Devon Westhill. Devon is president and general counsel of the Center for Equal Opportunity. He was formerly the top civil rights official at the U.S. Department of Agriculture under President Trump. Devon’s writings have been featured in SCOTUSblog, The Wall Street Journal, and other publications, and he is a veteran of the United States Navy. Full bios for each of our participants today can be viewed on our website, fedsoc.org.

 

After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please place it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many as we can. Finally, I’ll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, Devon, thank you very much for joining us today. And the floor is yours.

 

Devon Westhill:  Thank you very much for that introduction to a topic that I’m very, very eager to talk about today. It’s one that I’ve been following for some time, and I think a lot of us have had no choice but to follow for the last several years, specifically after the murder of George Floyd several years ago, when I was serving at the agriculture department as a deputy assistant security for civil rights, that rocked this nation. And since then, we’ve seen an explosion of diversity, equity, and inclusion efforts around the country, not just in higher education but in corporate America and many other areas as well.

 

We’ve not only seen that explosion. We’ve seen a pretty big backlash to that as well. I was at an event recently where my governor—I live in the state of Florida -- my governor, Governor DeSantis, remarked that we, the state of Florida, was going to eliminate DEI from our public universities because it “stands for discrimination, exclusion, and indoctrination.” He’s backed that threat up recently. Breaking news, just earlier this week, he signed into law Senate Bill 266 that defunds DEI efforts at state and college universities in addition to a number of other measures as well. West Virginia’s another state that has advanced similar legislation, Texas as well, and there are others.

 

Individuals who have been against what I call big DEI—which is now a, I think, by some estimates, a billion-dollar industry in the United States, multibillion globally—say that it’s ideological. In practice, it can be illegal, immoral, political, and in many ways, it’s activist as well. Individuals who advocate for DEI, though, aggressively say that it really does improve student well-being when we’re talking about the higher education context. The North Carolina solicitor general argued in the Harvard, UNC case that the -- in challenging affirmative action at the University of North Carolina argued that it creates “a deeper, richer learning environment,” is what diversity does. The Solicitor General of the United States, Elizabeth Prelogar, argued that diversity “promotes cross-racial understanding.”

 

So there are individuals on both sides of this debate, and there are a lot of people in the middle, as well, who think that diversity, equity, inclusion efforts are good. Sometimes, they’re not done well but, largely, are beneficial, and so long as we take a scalpel to this, that we’ll be better off by having some of it and not other aspects of it. We see that right now in some efforts to append the term and the idea of belonging to diversity, equity, and inclusion. There was a New York Times piece on this just yesterday or the day before that I read. But in any event, however you feel, it’s undeniable that DEI, in the last several years especially, has gotten really big. I’ve seen some estimates, also, that say that prominent schools have more DEI administrators than tenured professors of history. And is that a problem?

 

So we’re going to explore that with our speakers today and a number of other really important questions, I hope, that the audience will have for our speakers. I will be monitoring that in the chat function or the Q&A function, so please put your thoughts there. I’m going to have some really hard softball questions for them after they give their presentations, and then we’ll go to audience Q&A. But with that, I’m not sure who wants to speak first. We actually didn’t discuss this, but Professor Clark, would you like to speak first?

 

Prof. Todd Clark:  I was going to recommend Ilya.

 

Devon Westhill:  Okay. Are you okay with that, Ilya?

 

Ilya Shapiro:  I’m fine going first.

 

Devon Westhill:  Thank you.

 

Ilya Shapiro:  Thanks for that measured and substantive introduction of us and of the discussion. Governor DeSantis actually based his legislation—or the Florida Legislature did—on model legislation that Chris Rufo and I developed along with Matt Beienburg of the Goldwater Institute, so I’m proud to have a hand in that. And just laying my cards on the table, I definitely do have positions, not that anybody who knows anything about me thinks that I’m a shrinking violet on anything that I’m speaking about. And in fact, the reason that Professor Clark is here is because I spoke at his institution a couple of months at St. Thomas, and we had a good back-and-forth afterwards. In fact, my understanding is that his performance, measured and substantive and civil and thoughtful, was the reason why he got hired by Delaware Law, so I was happy to provide that platform for Professor Clark for his professional development.

 

Well, look, this is two stories, what’s going on with the diversity industrial complex or big DEI, as you put it, Devon. I’ve gotten to learn this both personally through my lived experience with Georgetown last year, and I kind of chuckled when Sam was introducing me because it’s a laugh line now that, when I ask questions at conferences, I call myself professor emeritus at Georgetown. I won’t go over the details of that experience last year, but also, that’s led me to kind of dig deep and learn about all of this stuff. And I’m now writing a book, due out in February/March next year ahead of graduation season ’24, called Canceling Justice: The Illiberal Takeover of Legal Education because that’s the issue here.

 

This is not a continuation or the latest iteration of the decades-old conservative complaint about the liberal takeover of the faculty lounge, going back to Berkeley in the 1960s or what have you. The argument goes -- at least the argument that I attach myself to is what we’re seeing now, and as you put it, it’s really in the last few years. I’d say the start was about ten years ago or so, and it really accelerated under COVID and after the murder of George Floyd. We’ve seen the growth of this illiberal ideology and enforcement, indoctrination of a postmodern critical social justice, critical legal studies, things that we thought had been left theoretically, philosophically, back in the ‘80s came roaring back.

 

And we have the confluence of two trends of higher education: first, the bureaucratization to the point where—I think it was about 15 years ago or so, around 2010, plus or minus—the number of nonteaching staff started to outnumber full-time faculty at most institutions, so the bureaucratization of higher ed and, at the same time, the growth of this diversity sector. And by which, I do not mean lawyers and others who are there for institutions to comply with federal and state civil rights laws—Title IX, the Americans with Disabilities Act, antidiscrimination law of various kinds, stuff that—I was in law school 20 years ago; I was in college 25 years ago—people of my generation would recognize was already there. That’s not the issue. The issue is having these new centers, offices, energy centers in universities, and we’ve seen that they kind of spread their political commissars in each unit of the university, including—what I’m studying and what we’re familiar with here—law schools to propagate through trainings, through diversity statements for applicants to admission and hiring and, in other ways, imbuing a culture that is antithetical to the classical university mission of truth-seeking and knowledge creation and teaching or, for law schools, a dedication to the rule of law and the practical training of lawyers to maintain and manage the guard rails of our legal and political institutions.

 

You see manifestations of this in the shutdowns—most notably, recently, Judge Kyle Duncan at Stanford, but it’s happened at Yale several times. It happened to me at the law school formerly known as Hastings. Mr. Hastings, it turns out, has done some politically incorrect things by 21^st century standards, so that school is now UC Law SF in San Francisco. And you see it not just in those things that make national news but in the way that culture is promulgated to law students and -- well, we’re focusing here with a Federalist Society event on law schools.

 

Just like deans are very good at inculcating whatever values they care about. Whether it’s public service, whether it’s inclusion, diversity,- the students are being hit over the head with these identitarian, identity politics-style things that go far beyond the fairly innocuous and, I would say, sanguine or even beneficial words, DEI themselves. Who can be against diversity, having people from different perspectives provide their views so it’s not groupthink, so we have the full richness of human experience presented in legal arguments or what have you? Or equity, in one sense, in the legal sense, equity is centuries old in the Anglo-American common law tradition, meaning the power of courts to rule in a just manner. Or in a more colloquial sense, equity means fairness. And I have four little kids. Two of them are just babies. I’m not sure what their position is on the Dormant Commerce Clause quite yet, but the five- and seven-year-old understand intuitively what fairness is.

 

And certainly, we want to be fair to people. We want to treat people equally. And the “I” part, the inclusion -- well, we want people to feel welcome, whether they’re at work, at school, or otherwise. Who could object to any of those things? The problem is as those things have been defined and implemented through these now vast bureaucracies is -- in an Orwellian sense, it’s the opposite of those very positive words.

 

The “D” has come to be against intellectual diversity. The “E,” the equity has -- rather than providing for equality under the law, equal protection, as we lawyers understand it, or equality of opportunity, it goes more to equality of outcome. And the “I,” rather than include, excludes those who diverge from the accepted orthodoxy. Don’t just take it from me telling you these things from a position of authority or based on what I’ve seen in my research. Student surveys, faculty surveys reflect those understandings. Very few people feel free to express their views or even to broach certain topics, whether in class or extracurricularly.

 

The chill, the culture, or the Overton window of the permissible range of accepted policy views has shifted and warped. And we can go into possible remedies or causes or what people might be interested in, but I don’t think it’s because America as a whole or the population of students and faculty have shifted in this direction. It’s because of this public -- economists might call it public choice analysis, the growth of these bureaucracies with the DEI staff having an incentive to justify and grow their authority and budgets. The demand for racism, say, is so great that -- far outstripping the supply that outrages have to be manufactured and enforcement has to be taken against perceived slights and what have you to the point where arguing for the law being neutral, applying neutral principles to everyone, or being colorblind in how we approach this or that public or private sector policy is considered to be a hallmark of white supremacy.

 

And there are equivalents with sex and gender and other lenses in this—again, postmodern critical studies-style, intersectional analysis where you evaluate privilege hierarchies, engage in oppression Olympics, and thereby, determine whose views are most important to hear from and most valid, most legitimate, while others are meant to go on an, by definition, endless hunt to atone for their group-based guilt and so forth, based on immutable characteristics. It’s nasty stuff, and I think it does a disservice to the students that are currently at institutions. And it’s alarming for the future of our legal and political institutions because, after all, with the possible exception of medical schools where the graduates are literally dealing with matters of life and death, I think it’s much more worrisome in law schools than anywhere else. If an English department or a sociology department engages in semantic nihilism, at the end of the day, who cares? But in law schools, if these are the people who are populating general counsels offices at Fortune 500 companies and corner suites in large law firms, prosecutors’ offices, state legislators, federal administrations, and all the rest of it, and they disagree with the idea of equality of opportunity, equal protection of the law, free speech, civil discourse -- a lot of this talk with DEI is addressed -- the attack is from a free speech perspective. And that was the focus of my event at St. Thomas where I met Dean Clark.

 

But it goes beyond just issues of supposed clashes between speech and DEI, as Dean Jenny Martínez of Stanford addressed in her excellent letter following the shutdown of Kyle Duncan. Now, I have some qualms with certain actions at Stanford—rather than punishing the disruptors, there’s collective punishment and all of that—but as an exposition of views, I thought that was perfectly good. But it goes beyond speech. It goes beyond threats to basic foundational principles of our system of government and rule of law—equal protection, individual rights, due process in terms of how people are investigated. There was a just piece in The Wall Street Journal last week from an Ohio Northern professor who, far from -- we can be up in arms about what he might be investigated or prosecuted or dismissed for. He doesn’t even know because it’s this Kafkaesque thing where they marched him into the dean’s office and demanded that he sign severance papers, and they’re not going to tell him why.

 

All of this is under threat from a system that, again, you look back to these readings from the Crits, what are called in the ‘70s and ‘80s and early ‘90s, about structures and systems being fundamentally illegitimate and racist and needing to be completely torn down and rebuilt. It’s a revolutionary idea, which we can certainly discuss and debate in the prototypical collegiate bull sessions as it were, but when it’s institutionalized, when it’s operationalized, when it’s imposed by governments but also by private entities that are educating the next generation of legal leaders, I think this is very dangerous.

 

And I’ll end on a slightly more optimistic note. If you had talked to me six months ago, I would have ended right there. But I think there are green shoots. I think there is some room, if not for optimism but less pessimism because we have seen in this pushback, both at a state legislative level -- my Governor Youngkin in Virginia also in appointing his head of DEI. There’s a state-legislated position that the state head of DEI has promised to—who happens to be a black man -- but he’s promised to dismantle those structures in Virginia. Whenever these, what I consider to be illiberal practices—hiring based on diversity statements, say, rather than expertise in the subject matter -- whenever they’re revealed, sunshine is shone on them, for example, or other exogenous shocks. Bar associations are going to be evaluating whether law students have disrupted meetings and such. Judges are not hiring from Yale and Stanford—I think there’s 14 federal judges, led by Jim Ho and Lisa Branch—because of those schools’ illiberal policies.

 

Those sorts of things are starting to shift attitudes, and sometimes, all it takes is op-ed, and the next day, the president of the university—as happened in Texas Tech—said, “No, no. We are not going to be hiring based on diversity statements. That’s inappropriate.” So I do have some reason for less pessimism, but the battle has certainly been joined, even if there’s still a long way before universities go back to their missions of seeking truth and knowledge and law schools return to their goal of teaching future lawyers to uphold the rule of law.

 

Devon Westhill:  Thank you so much, Ilya. That was a lot to chew on. I’ve got some thoughts in response to that, but I suspect Professor Clark has much smarter thoughts than me, so I think we ought to give him an opportunity to give his opening remarks, and then we’ll get into some of those really smart thoughts. Professor Clark?

 

Prof. Todd Clark:  Thank you very much. So the first thing I want to say is I want to really extend my gratitude and thanks and appreciation to The Federalist Society for putting this really important discussion together. I also want to thank Ilya. He and I -- as he mentioned, we had an opportunity to meet. I will not say that he contributed to my professional development, but he did create to a wonderful conversation and dialogue that we shared together.

 

And let me just give you a little bit of background about who I am. You mentioned about why I have an opportunity to be the next dean at Delaware Law School, and part of the reason that I have this wonderful opportunity in front of me is because, during my conversation, Delaware Law School is really focused on diversity, equity, and inclusion, and as I mentioned to them, and as I’ve consistently seen anytime I have an opportunity to speak, there are some people that wear a blanket or a cloak of diversity, equity, and inclusion. DEI is woven into the fabric of who I am as a person. And so, those things are really important to me, and I’m going to talk a little bit about why that is.

 

One of the things that I think people have mentioned, you constantly hear about this idea that diversity, equity, and inclusion gained increased importance after the death of -- or the murder of George Floyd, and I actually will push back against that. I think that when you’re talking about marginalized communities, when you’re talking about underrepresented populations—African Americans, people of color, women—these issues have been important, and they continue to be important. Maybe George Floyd’s death brought those to the attention of the masses, but those were issues. They never lost their voice. They never lost the energy. They never lost the steam.

 

And so, I think, sometimes, to say that it began at that point is a bit of a misnomer to the extent that maybe it helped to amplify those concerns that were important for those groups. Maybe that might be a fair statement. But I also think before we start talking about DEI as it exists today, I think we need to talk about why diversity, equity, and inclusion initiatives were initiated and created. If you think about America and you think about just focusing on the educational institutions, African Americans, people of color, LGBTQ members were traditionally excluded from having a meaningful opportunity to earn a degree in America, to pursue the American dream. And so, it really didn’t come around until the -- if you think about, late ‘50s, early ‘60s, where many of these initiatives began to gain steam. And the reason that they gained steam was because it was an opportunity to give these new faces in higher education an opportunity not just to enter into the institution but to enter the institution, learn, and thrive and then really graduate to give them an opportunity to capture the American dream.

 

And so, that is really, really important. And if you think about who were those individuals that were making those decisions, they were not representative of the diversity that we see now in our colleges and universities and the level of success that we’re having because of these DEI-based programs. Now, the one thing -- the other thing I also want to highlight is diversity, equity, and inclusion, and Critical Race Theory -- and I would have to sincerely disagree with Ilya. One of the things that he said is Critical Race Theory and diversity, equity, and inclusion focuses on this idea about whose views are important.

 

Tell you a little bit about my background. I am a Critical Race Theory scholar. I’ve created a number of courses around those areas: a course called Corporate Justice that looks at issues of gender inequality in the context of the corporate boardroom as well as Hip Hop, Law and Social Justice, which is a lens to deconstruct systems of oppression in our -- in the law. And so, this is an area that I write in, and never is it about whose voices are important.

 

Critical Race Theory and DEI is about giving marginalized people an opportunity to engage in a discussion and giving them the tools that they can use. It’s a lens to evaluate things as they are and to really figure out why are things the way that they are. What are the things that are causing these problems so that we can reverse engineer it in order to make the world a better place, not just for people of diverse backgrounds but for all people? And that’s what Critical Race Theory is about. It is not about saying one person’s views are louder than another.

 

And I do what to keep my remarks short because I want to make sure that -- hear our wonderful questions and allow you to kind of take over, Devon. But I do think that there is a critical confusion that is happening in America today, and I think that one of the things -- when I listened to Ilya speak, he talked about some of the “evils” of diversity, equity, and inclusion and pushing people out and prohibiting people from having a conversation or elevating voices over the other. And diversity, equity, and inclusion is not about that.

 

I do think that what is happening is some of the things that you’re seeing, like some of the frustrations that Ilya might be referencing are more attributed to the generation. Right? I think the current generation is a Generation Alpha. I think that there are consistencies and characteristics of each generation that we have in the United States, and I think some of those frustrations about “I want things now,” “It has to be my way,” and the way that they view the world and if they’re frustrated with something, having a resolution immediately and having the power to say, “I want something different,” that’s more a function of the generational slant as opposed to diversity, equity, and inclusion. And I think that if you conflate those, that creates a substantial level of confusion and distorts the value and importance of diversity, equity, and inclusion.

 

Devon Westhill:  Clark, thank you very much for those remarks. And I think we’re going to take advantage of the fact that you kept them rather short to get into some of our questions later. But first, Ilya, if you’d like to respond --

 

Ilya Shapiro:  Can I ask --

 

Devon Westhill:  -- sure.

 

Ilya Shapiro:  -- Todd one thing since -- I thought he was going to get into this, but what I’ve seen is surveys that -- even on its own terms, DEI is failing in a sense of making students feel more included and welcome and comfortable with diversity. It seems through campus-climate surveys—and please, educate me, and I’d be happy to take materials if you have something that contradicts this—but it seems like tensions on campus are higher. Students, whether members of racial minorities or not, feel less comfortable. And part of this might be lingering hangover from the pandemic; although, some of these studies are from before the pandemic. It just seems that whatever the ills might be that I pointed out, on its own terms, it seems like DEI is failing.

 

Prof. Todd Clark:  You know, I would disagree with that. I mean, if you talk about -- and I could talk about my anecdotal observations from my time as a law professor at North Carolina Central, my time as a law professor at St. Thomas and visiting and teaching at other institutions. What I have found is that these DEI-based initiatives in providing a safe -- in providing a space for everyone to engage in robust conversation, that has really enhanced the quality of the legal education.

 

If you think about when I was in law school, and I go back to that time, there was a -- I was in a -- when I was at the University of Pittsburgh, we had 270 students in our class, and out of the 270 students, we had about 8 African American students at the school. And that was a very -- it wasn’t as welcoming of an environment, if you’re one of eight African Americans walking into the class. And I had wonderful professors, and it was a wonderful experience. But there were challenges in believing that you had an opportunity to have a voice in the classroom. DEI is about pulling those voices out.

 

So the studies that you’re citing to say that it’s failing, my experience has been completely contrary. And it’s giving people a voice, and in fact, honestly, in my classrooms -- and I can only talk about my class. I’ll share a story. In my Corporate Justice -- the Corporate Justice class that I teach, when I taught it at a -- it was a Historically Black law school where I created the class and where I taught it. And one of the things about that particular class, we had a lot of robust discussions about board members and decision making and how those decisions are made and who they influence and who they impact. And without getting into the details, at one point, the students there were a very strong liberal group. Right? And so, they hadn’t really encountered a strong conservative perspective.

 

And so, as in my role, I had to take on that hat. And so, one of the most interesting compliments that I’ve ever received is a student said -- after class one day in the most respectful way possible, said, “Professor Clark, you’re like a white CEO.” And what the student was really pressing me on was the fact that I’d taken a conservative viewpoint. Student could never figure out where I was, but my role as the professor were to help students understand at the highest level.

 

And I think that diversity, equity, and inclusion is about bringing those voices into the classroom. If you haven’t been a member of a minority group in that type of room where you’re one of many, it is so important to have faculty members and professors in an environment that is able to give you the comfort and the confidence to speak out and to believe that the things that you’ve experienced in your life are of value. So I would say my observations have been contrary to the information that you are referencing.

 

Devon Westhill:  Very interesting question, Ilya, and great response, Professor Clark. And I have a question that I’d like to pose to the two of you or, at least, maybe an observation that I’d like to get your response to, based on some things that Professor Clark just said and my own experience. So first of all, I think the smallest minority on the planet is the individual, and so, anyone can feel out of place, given their own experiences, their own thoughts and views on things but not necessarily because they are a member of any particular group. And so, I wonder how DEI actually addresses the fact that each individual is an individual and different from every other person on the planet or that has ever existed?

 

When I was in the previous administration, I served as the Labor Department’s liaison to the White House on Historically Black Colleges and Universities in thinking about ways in which the administration might support the efforts of these uniquely American institutions, which I care for quite a bit as a racial minority myself. I’m curious because, from what I understand, the vast majority of HBCUs do not have diversity, equity, and inclusion departments, or if they do, they’re nowhere near the size of a lot of institutions around the country that do have these very robust diversity, equity, inclusion departments.

 

Why do you think that’s the case, if we need to have, for example, Professor Clark, a difference of perspective, for example, that will help those students, and that, if diversity is this really important thing, that it’s not available to Historically Black Colleges and University students? And I guess that kind gets to what is diversity, equity, and inclusion to begin with? Does it include, for example, diversity of opinion that might help the students that you were referencing in your previous class?

 

Prof. Todd Clark:  Yeah. I think it cuts across all of those things, if you’re talking about what is diversity, equity, and inclusion. I think you have this idea of worldview diversity, which is the fact that you have these diverse perspectives that are in the classroom. I think you also have to think about diversity from the perspective of gender diversity, from racial diversity. I think it’s about the -- for me—the way that I see diversity, diversity is about empowerment. It’s about empowering those voices in the room to have robust discussion and dialogue so that you can come to the most efficient and highest quality resolution of whatever problem that you’re grappling with. That’s what diversity is about.

 

And the reason that the DEI programs were so important is because that wasn’t happening. You had a large number of individuals that, one, weren’t able to enter into higher education, but then, once they were in higher education, the environments were extremely hostile. And so, diversity, equity, inclusion was an opportunity to level the playing field for those groups. And it’s continuing to have an impact and positively impact those groups.

 

Now, you asked another piece of a question, which is at HBCUs -- part of it is -- I think that one of the reasons that you may see -- and I can’t say because I’ve never looked at this information specifically, but assuming that your information is correct, part of it is HBCUs, that’s within the fabric of who they are. Right? I mean, HBCUs were the institutions that were created because minority students didn’t have an opportunity at predominately white institutions, so their existence is all about inclusion. And so, I think that that’s part of the reason that you may not see it because those principles are built into the fabric of the institution itself, such that you don’t need an independent office that is focused on those initiatives.

 

Ilya Shapiro:  It seems to me -- I don’t think I have anything specific to say to your question, Devon, but it seems to me that in all of Dean Clark’s presentation, we might be talking past each other a little bit in that his focus seems to be in the traditional, affirmative action-style -- the debate that’s at the Supreme Court right now, where opportunities for people that didn’t have them before. That’s obviously a very important discussion. To me, it’s different. It’s become necessarily part of the DEI discussion because DEI offices are in charge of affirmative action as well, but that, unlike how I opened, is a continuation of the decades-old discussion of how do we deal with underrepresentation or historical disadvantage and structural -- lingering concerns about racism and sexism and all these other prejudices and things like that.

 

We can talk about that, and we can talk about how DEI offices might change after the Supreme Court comes down with its ruling in the next six weeks or what have you. But what I focused on is the way in which I think this discussion is different, and simply, a forum like this, a debate on affirmative action would have been ten years ago when FedSoc would have posted it, other than not being on Zoom, I suppose, but -- and that is that this -- it’s a step change. It’s a difference of time with this postmodern ideology that’s in place that’s about certain cultures and values and the trainings, the emphasis on your experience with being underprivileged and how that affects your view of the law and things like this. It’s a more viewpoint-based thing, a more ideological thing, and we can discuss how much it’s bad or good, but that is what I mean by the perniciousness of DEI.

 

Part of that certainly is the continuing use of racial preferences and the role of affirmative action on campus and what have you, but that’s not so much what these -- the explosion in DEI over the last five or ten years has done. We’ve had affirmative action. Ironically, the whole diversity industrial complex is probably grown out of that one vote by Lewis Powell in 1978 in the Bakke case. And so, we’ve had to structure everything through diversity rather than remedying past wrongs and debating it that way and things like that. But it’s this more ideological growth rather than thinking about how to provide access to underprivileged or underrepresented minorities that is what most concerns me.

 

Prof. Todd Clark:  So Ilya, when you say, “ideological growth,” can you give me a little bit more context or give me an example of that? Are you talking about teaching Critical Race Theory in a context of a classroom? What is the evil that you are attacking because I think that’s maybe what I’m missing a little bit.

 

Ilya Shapiro:  Right. Right. No. I think that’s also a separate discussion of what is taught, what classes are approved, and what is said in them and our faculty indoctrinating. That’s a separate question to my mind than this issue with -- obviously, DeSantis and Florida is attacking everything, everywhere all the time, but my focus is on the structures and the systems and the processes, whether in hiring or admissions, whether the bureaucratic offices at Yale will interrogate students if they send an email that’s not phrased correctly and threaten them with bar consequences. I mean, we have all of these examples of whether it’s microaggressions and trainings given to incoming 1Ls or repeated emails from the Dean’s Suite about the values that we undertake and the social justice cause and things like this.

 

Prof. Todd Clark:  Okay. That helps a little bit. And I think that -- I think I did mention -- speak to that because that’s where I think that there is a connection that I think you might be making that is not a -- that is an unfair connection because I think that you’re connecting diversity, equity, and inclusion to just the generational tone of America—the current generation and how they interact and how they process.

 

So for example, if you think about issues about mental health, that is something that is new. That is a discussion that we hear across the country. Right? It’s probably -- I’ve heard that it’s the number one issue facing America, especially after COVID. And so, when you’re talking about mental health, there’s a lot of communication and dialogue about explaining to people the value of mental health and how it’s important, how you need to assess and then create institutions to deal with it.

 

I think some of the things that you are attributing to DEI are not -- it’s not based upon DEI. It’s about the way that the world has changed and the way that people have changed and the way that we deal with problems. And I don’t see those two as one in the same. Those two things are separate to me, and I think you see them as the same.

 

Ilya Shapiro:  Well, I think you and I can find common ground in that, indeed, some of this might be a Boomers versus Millennials thing, and us Gen Xers are caught in the crossfire. But it’s interesting that you raise the mental health issue. Certainly, the advent of social media and how that affects young people, that’s been concomitant with this development of America’s racial reckoning and all the rest of it in the last decade, so it’s hard to separate out how that affects youth attitudes and what they’re bringing to the table when they enter these institutions and now, younger faculty as well.

 

But the mental health side also is paired into DEI because of the way that terms like “harassment” and “discrimination” are therapized. They’re kind of borrowed understandings from cognitive behavioral therapy as Greg Lukianoff and Jonathan Haidt wrote about in The Coddling of the American Mind. Those trends have even accelerated through COVID. The idea of harm and what does harm mean and safe spaces, that kind of verbiage about mental health where even the idea of being presented with ideas or views that challenge your preconceptions, that that’s not safe, or it might be dangerous in some way, whether from faculty or guest speakers, that aspect -- so mental health broadly but specifically DEI -- part of the DEI -- part of the problem with DEI is that it’s imputed these concepts from the psychological world, I think, to make issues problematic that previously weren’t. And that’s a generational thing, just in terms of chronology, but I don’t think it’s just because, “Well, I’m being a little bit of a fuddy-duddy and not understanding how the kids these days are brought up.”

 

Devon Westhill:  Just like that, we’ve got about 15 minutes left in our program. Can you believe it?

 

Prof. Todd Clark:  Wow.

 

Devon Westhill:  I told you this was an interesting subject and that it was going to go pretty fast. What I’m going to do is just ask one additional question of each of you, somewhat related, and then I’m going to get into the questions from the audience, which many of them, I think, are very fantastic, and I’d like to get to them quickly.

 

It sounds to me, as Ilya just suggested, there is quite a bit of overlap here in what we might term “true diversity,” “true inclusion.” But that, in some ways or other, the way in which it’s practiced by big DEI has gone off the rails, in Ilya’s view, I think, quite substantially. Professor Clark, I think you’ve got potentially some grievance as well with how DEI might be done today if we were to get down to brass tacks of the way in which it’s practiced on the ground.

 

But Ilya, I’ve read your model legislation. I see what my governor has done in the state of Florida and some other efforts around the country. It looks like the idea is, “Well, because we have problems with DEI, we should smash it all to pieces, instead of trying to adjust it to be true to what we believe diversity or inclusion might entail.” Why take that approach instead of sort of taking the scalpel instead of the sledgehammer to it? And then, Professor Clark, I’d like to hear from you, if you don’t mind. Are there problems at all with the way DEI is done now that you might like to see changed as well? Ilya?

 

Ilya Shapiro:  Yeah. I say take the sledgehammer rather than the scalpel because I think DEI, as I define it -- and, as I said, that excludes those who work on making sure there’s no discrimination or outreach to communities that don’t have students from them or whatever, those kind of traditional things that, as I said, those who are of my generation would recognize. My complaint was the stuff that’s really blown up in the last ten years because I think it’s a value-subtracting institution—structure. I think there’s no good there. I think it increases tensions. It prevents learning. It impedes law school missions of teaching about zealous advocacy and facilitates student attitudes that certain views aren’t even worth hearing from or that they’re dangerous across a whole lot of cross sections of what law schools do and institutions more broadly. But again, our focus here is law schools.

 

I just don’t -- I see these campus climate surveys that nobody is comfortable expressing their views unless you’re a radical leftist. Some of those feel comfortable, but that’s about it. And faculty who are, by any definition, to the left of Bernie Sanders are uncomfortable or threatened by some of these offices, or students make complaints that are framed in DEI ways after they get a bad grade, and there goes people’s careers. Not to mention the other parts to my model legislation regarding eliminating diversity statements because people should be judged based on their competence to teach, not whether they’re all this -- the loyalty oaths to a particular ideology. So I just don’t think there is value in big DEI, as you put it, or as I define it, the enforcers, the nonfaculty bureaucratic engine that is, I think, creating a lot of these tensions across -- whether it’s speech, due process, equal opportunity, and the rest of it.

 

Prof. Todd Clark:  Thank you, Ilya. I think -- I do want to respond to one of those things, and I think that for underrepresented populations, when you hear that, I think that’s where -- when you hear that type of response—and I’m saying the response about taking a sledgehammer to it—that is one of the things that’s really frustrating because it seems as if, whenever there is something to empower people that have traditionally been prevented from having a place at the table, that the first inclination is to smash it, but when there are institutions or documents that prevent us from entering the space or entering the room, then the idea’s, “Let’s just think about this a little bit different. Let’s take a scalpel to it,” or, “Let’s think about it differently.” And that causes a lot of frustration in of itself, and that’s why diversity, equity, and inclusion, Critical Race Theory is so important because it allows you to call out things that are inconsistent and gives people the comfort of having a space to do that, so I think that’s really important.

 

The other thing that you asked me about diversity, equity, inclusion -- is there something that I would want to see maybe changed or enhanced. The first thing, I think that it’s very important. Diversity, equity, inclusion is important in corporate America. It’s important in higher education. I would like to see more institutions embrace the ideas and principles of diversity, equity, and inclusion.

 

And I think that if you asked, “What do we need to change,” we do need to change the narrative to the extent that anybody is distorting the purpose of diversity, equity, and inclusion as a means of preventing people from speaking or preventing people from expressing their viewpoint. That is not what diversity, equity, and inclusion is about. It is about inclusion, and it is about creating opportunities for the discussion, for the dialogue. So if there was one thing I would change, that’s what I would change about DEI.

 

Ilya Shapiro:  So do you agree with the formulation of DEI as it relates, at least, to free speech and the training of lawyers in Dean Martínez’s letter?

 

Prof. Todd Clark:  What do you mean by that, Ilya?

 

Ilya Shapiro:  Well, she talks about how to do DEI properly and well. We have to respect different people’s views. We’re not going to take institutional positions on controversies, endorsing the Kalven Report from Chicago, endorsing the Chicago free speech principles, and saying, “Our commitment to diversity and equity does not -- is not harmed by maintaining those classical commitments. And in fact, this is only enhanced because it allows everyone to go about” -- well, I’m paraphrasing -- “to go about these goals in good faith.” I’m sure you’ve read the letter at least once.

 

Prof. Todd Clark:  So my position is sometimes this idea to remain neutral, I think that that’s a term that people like to put on their actions, but oftentimes, remaining neutral is making a selection. Right? So one of the things that you do is if you eliminate diversity, equity, and inclusion, you eliminate a voice, and you elevate another. That is a -- that is exactly what will happen, and then, you end up with a situation where you have a group of people that are completely excluded from the process, and now, when you do that, you ultimately end up swinging the pendulum. I think diversity, equity, and inclusion, from my experience and my research, actually is leveling the playing field in allowing more people into the room to engage in the discussion. So I do think that there is a value in having all of the discussions, and diversity, equity, and inclusion is the tool that is allowing marginalized groups to have some semblance of fairness—equity—in the context of the discussion.

 

Devon Westhill:  Thank you very much for that. I’m going to give the balance of the time to our audience questions. I’ve got a few here queued up I’d like to present to you. The first, I think, relates to something that we’ve been sort of nibbling around on the edges of. Ilya mentioned that there’s some similarity here to the concerns that are raised from a policy standpoint and others and the Supreme Court cases right now challenging Harvard and universities’ race preferences in their admissions.

 

One question is, “Do you think that diversity, equity, and inclusion initiatives have helped empower minorities like Asians, specifically Asians? Or do you think that it’s hurt them, especially first-generation immigrants? And how does a DEI establishment view these minorities who also bring intellectual diversity to the table?”

 

Professor Clark, you also mentioned that you think diversity, equity, inclusion’s important because of the history of this country. I don’t know exactly what you were referencing there. I mean, I can think of a few different reasons why Asian Americans may be included in that history. But do either one of you want to start in kind of responding to this? Has DEI helped empower minorities like Asians?

 

Prof. Todd Clark:  I would say, yes. I mean, that is -- now, this is the thing that’s really interesting about DEI, and sometimes, it’s kind of hard to look at it as a whole. It really goes back to something that you said, Devon, when you talked about individuals. Right? I think that each individual institution has to sort of prioritize -- make an assessment about what it needs to do to create a more inclusive culture. And I think that you have to take inventory of who are the voices in the room; who are the people sitting in the room; who is in power to speak; who are you admitting. And I think that you have to create a plan that works for your institution.

 

And so, I think that -- so if the question is, “Do Asian Americans fit into this idea of diversity, equity, and inclusion?” Absolutely. I can think of a place like my current law school, St. Thomas University Benjamin L. Crump College of Law. One of the things that -- if I’m on the Admissions committee, I would want to do a wonderful active job of recruiting more Asian American students to the law school because we don’t have a meaningful population of Asian American students, and that’s a perspective that will be valuable to the classroom. And so, at our school, at St. Thomas, that would be really important.

 

So to answer the question, “Would that be a part of it?” Absolutely. Right? But I do think you have to take inventory of your institution. And it isn’t a one-size-fits-all. Right? It’s about making sure that there is a meaningful population and a meaningful discussion and a meaningful opportunity.

 

Ilya Shapiro:  The way that the diversity industrial complex defines privilege and who’s underrepresented and who’s disadvantaged, a lot of these groups, whether Asians or immigrants—and I’m an immigrant myself—those experiences aren’t as -- aren’t considered as part of the mix. You’re too privileged enough. You’re white adjacent or something like that. I mean, I think there’s -- you don’t need all of this DEI infrastructure to be able to make sure your recruiting, if you’re a college, from all the high schools in your state—or nationally, if you’re an Ivy League university or what have you or if you’re a law school -- to make sure that you’re serving your community. And that might mean something different for St. Thomas than it does for the University of Florida, which would mean something different than it does to Yale Law School or my own, University of Chicago.

 

There’s flexibility to define those sorts of things. And when it’s a public school, that’s different than if it’s a private school for -- as well. But some of these things, the benefits that Dean Clark is referencing, I think you don’t need these new—and these are new, again, the last five years, especially—bureaucracies and training implementations to effect.

 

Prof. Todd Clark:  See, I think -- so let’s play that out for a little bit. Right? If you think about after integration -- so you think about Brown, striking down Plessy; schools are integrated. These things like -- to say that we don’t need the institution, that’s where I think it gets a little challenging because before we had really robust DEI departments, colleges and universities were really hostile places for minorities. And I think it -- if you talk about success rates, if you talk about opportunities, if you talk about meaningful participation, it didn’t happen. And so, it didn’t start happening until the DEI initiatives started to take hold and started to grow and get funding. So it’s like if you take that away, you go back to a situation, and you go back to a climate where minorities did not have an opportunity to participate in the process.

 

And that’s where -- Ilya, your point would make sense if things were great before DEI, but they were horrible. That’s why DEI initiatives -- they didn’t just grow out of nowhere, and that’s why I said it was so important to have them and why I talked about the history of DEI when I began the discussion because they were needed. It wasn’t as though when it was self-policed that administrators and institutions were doing the right thing.

 

Ilya Shapiro:  It’s not a matter of self-policed. We’ve had civil rights laws on the books, federally and state, for quite some time. We’ve had affirmative action programs, including the use of racial preferences, from before the rise of DEI offices, so I don’t think -- again, I think you have to be parsimonious in how you’re defining your terms. And how I define DEI, these bureaucracies that have arisen in the last five/ten years really—not going back to Jim Crow, not going back to UC Davis’s quotas and the Bakke case or anything like that -- these have not helped provide access. And they don’t have much to add in the area of recruiting that wouldn’t otherwise have been done or that can be done by admissions offices without having an associate dean or vice provost for DEI to accomplish.

 

There are certainly worthy goals that you’ve mentioned, but I think the -- what I’ve been talking about and what I’ve been criticizing and the target of this legislation across the country is the stuff that actually violates those civil rights understandings and hires people based on either adherence to an ideology or based on immutable characteristics, things like that. And that’s what is negative about DEI. It’s not about being more welcoming or recruiting from a wider pool.

 

Devon Westhill:  Let’s jump in here with another question from the audience because I think it may be helpful to the discussion here as well. The questioner basically is asking from what position are we best able to empower minorities, particularly black minorities, in this country where we see disparities in achievement that fall along racial lines. Is it from a position of, basically, victimhood? Is that there’s a problem; you’re not going to be able to raise your voice in class and in the boardroom, and you really need support from people? Or is it -- are we better off saying, “You have the ability today to do anything that you want to do, and you want to take advantage of that. You have the agency to make it happen. No one’s going to stand in your way because of your race or sex, and in this country, we have laws to protect your ability to do those sorts of things.”

 

I’m very interested in this because, although I may be somewhat in the middle when it comes to this DEI debate, I’m interested in what DEI might be doing as counter to helping black and brown individuals who might otherwise fall to the disparities that we see. I mean, we do know that after casting off the fetters of bondage—and notwithstanding new discriminatory barriers, such as black codes—black Americans could show that they could do a lot. Right? During Reconstruction, 2,000 black men served in elected office. By the turn of mid-century, last century, the real median income of the black population more than doubled by 1973. And the black marriage rate was almost at parity with the white marriage rate, so something happened that has got us to a point where we’re very concerned that we need DEI initiatives and so forth, that we didn’t have at a time where we saw perhaps one of the most explosive advances in socio-economic success in the history of mankind by black Americans. Why do we need DEI now? That potentially tells people that they’re victims.

 

Prof. Todd Clark:  I would disagree with the conclusion that diversity, equity, and inclusion tells people that they’re victims. And I think this kind of goes back to Ilya because, in one respect, Ilya wants -- you make a distinction between affirmative action in which you’re calling DEI, but then, sometimes, it’s kind of interconnected. It gets roped back in because you start talking about making hiring decisions based upon someone’s status, which starts to get -- so I think that what -- my first response is, DEI does not mean -- I don’t think that it creates a system where you tell people that they can’t do it but for this support. I think that DEI is more about empowerment, not necessarily saying, “Here’s a crutch.” DEI, at its highest level, was about saying, “Hey, here’s an opportunity. Let me talk to you about this opportunity. Let me talk to you about how to achieve it.”

 

There also was a value -- there was this really highly complex, quantitative study called “The Tennessee STAR Project.” I think it was Student-Teacher Achievement Ratio, and it was a really longitudinal study that they did. And one of the things that came out of this study was that minority students perform better in classes like science and math when there was a person of their race in the classroom. There was a value to having that diversity, and that is a really comprehensive study.

 

And one of the things is -- if you’re talking about who is the best, one of the things -- I think we have this idea that meritocracy in America is this sort of really objective metric for evaluating who should or should not get an opportunity. And it’s not as objective as one -- as people might like to believe. And so, I think that considering diversity is a valid metric to evaluating who is truly the best in a meritocracy, so that’s how I’ll respond to that particular question.

 

Ilya Shapiro:  Look, I’m a --

 

[CROSSTALK]

 

Devon Westhill:  We’ve run over -- we’ve run over here. We’ve got over a hundred people still on the call, though. Ilya, you want to finish up here?

 

Ilya Shapiro:  I mean, I’m happy to go over as long as they’re interested. I don’t know. I don’t have any hard stop. But I’m a constitutional lawyer. I’m not a great pooh-bah of all socio-economic ills or what have you and don’t claim expertise over the full range of the human condition.

 

And the point is, higher education is not the place where you go to remedy all of past ills or current injustices. Higher education is, as I’ve said, the place that creates knowledge, teaches students, seeks truth. Law schools are that from a legal perspective and teaches the next generation of guardians of the legal system and the rule of law and helps seek justice and recompense for those who have been wronged and all the rest of the noble mission of a lawyer. That is not the place to go to remedy all of this stuff.

 

It’s using a -- we talked about sledgehammer. It’s like using a sledgehammer to -- I don’t know what the analogy would be like. It’s not even overkill. It’s not a sledgehammer on a fly. It’s like using a sledgehammer to try to power a rocket or something. It’s a completely inapt tool for these larger sorts of concerns.

 

And two wrongs don’t make a right, and for that matter, this ties into the point that Dean Clark made at the end. Yeah, it’s obviously hard if you’re the only person who looks different in the class or has a particular perspective. Immigrants face that all the time, of course, as well as racial minorities.

 

But it also is, studies showing, the effect of mismatch. If you use affirmative action and racial preferences and other preferences where people get into a higher-paced or more so-called prestigious schools, and members of racial minorities cluster at the bottom of academic achievement there. That doesn’t do very well, either, whether you’re talking about eventual GPAs, bar passage rates, acceptance to grad schools, and all the rest of it. That’s why HBCUs, for example, are valuable and why affirmative action, if we’re going to go there—and, again, I wanted to focus on other stuff -- another reason why, as it’s been practiced, has not even been helpful for the folks that’s meant to benefit.

 

Prof. Todd Clark:  So two --

 

Devon Westhill:  Thank you so much.

 

Prof. Todd Clark:  Can I say two things really quick?

 

Devon Westhill:  I’m going to hand it to Sam [inaudible 01:03:36].

 

[CROSSTALK]

 

Ilya Shapiro:  No, let Todd respond. Let Todd respond. And for that matter, I mean, I don’t know. If you have a hard stop, Devon, that’s one thing. We can self-moderate. And there’s all these questions.

 

Prof. Todd Clark:  Right. Ilya, we can do this.

 

Devon Westhill:  I could go all day on this topic. I mean, I’ve got a lot I could talk about, but I know Sam -- I mean, look. Sam’s the boss here when it comes to --

 

[CROSSTALK]

 

Sam Fendler:  No, I appreciate it, Devon. I think, perhaps, it would be appropriate to give Professor Clark the last word. And then, I’ll say I would love to put together a part two, so let’s email after this.

 

Prof. Todd Clark:  Yes, yes. Thank you so much. Ilya, I do want to respond to two things. You said, “Why not higher education -- why higher education?” And my response is, “Why not?” If we’re talking about higher education in America and the importance of higher education --and I don’t need to do all of the sides because I think we could all agree when you start talking about wealth in America and accomplishing the American dream, it is those that have actually gone to college and pursued additional degrees beyond the high school degree that provides the opportunity.

 

The difference between just a high school degree and a college degree in terms of your earning potential is substantial, and so, if we’re talking about truly allowing people to accomplish the American dream, it has to be in higher education. And so, it is really important that we have these types of discussions to allow all individuals a meaningful opportunity to access that dream. So to me, it has to be at the educational level in higher education where we pursue these objectives.

 

And the second thing is when you talk about Richard Sander’s mismatch theory, I’ve always had a problem with that theory because, to me, it just relates to a poor professor because it’s almost like, “I can’t teach these students; somebody else can do a better job.” And I’ve just never been so limited as a professor. I’m a really good professor, and regardless of what students that I get in the classroom, I’m going to help them go from essence to existence. I’m going to help them achieve at the highest level. I think that his mismatch theory is mismatched, and there are a lot of scholars out there that have argued against it and to say that it’s a really incomplete theory for evaluating students, student performance, and aligning students where they need to be.

 

If anything, the university should take on the responsibility to think about how can they push themselves to be better. I think it’s a lazy response for a professor to say, “I’m so bad as a professor. I can’t teach this group. Let them go to someone else.” Right? That’s an admission that you’re a poor professor. And for me and my colleagues at St. Thomas and my future colleagues at Delaware Law School, that will not be an objective. We pride ourselves on teaching at the highest levels and bringing students along with us.

 

Sam Fendler:  Tremendous. Well, this has been a really great discussion, and I wish we had more time. To the audience who is still with us, it might be appropriate for you to send in some emails that I can forward along to the panelists to put some pressure on them and bring them back for a round two. Of course, I know all of you on this call are very busy, so thank you very much for your time, for your expertise. Thank you, Ilya and Dean Clark, for such a well-informed and enlightening discourse. This has been great. Thank you, Devon, for facilitating. And to our audience, thank all of you for joining us. We greatly appreciate your participation.

 

Ilya Shapiro:  Dean Clark, I’d be happy to do part two or just recapitulate or what have you at Delaware once you get settled.

 

Prof. Todd Clark:  Yes.

 

Sam Fendler:  That sounds great.

 

Prof. Todd Clark:  Listen, Ilya, I’m going to hold you to that. Let’s get together and make that happen. This has just been a great discussion, and maybe we could do a larger panel and have a nice, robust discussion. But I really appreciate this opportunity.

 

Sam Fendler:  Excellent. Well, we have plenty to talk about. And to our audience, please, you can check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars, potentially a part two of this one right here. Thank you all, once more, for tuning in. And we are adjourned.

 

 

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