Just published in volume 2, issue 2 of the Journal of Free Speech Law, and available here; here’s the Introduction:
The academy is rife with contention over the conditioning of faculty appointments on an attestation to or a record of support for a secular trinity: “Diversity, Equity, Inclusion.” These DEI policies seem to be grounded in a syllogism the major premise of which is this: The student population served by the institution includes members of historically marginalized minority groups, long ignored, slighted, or discriminated against societally and, possibly, by the institution itself. The minor premise: It should be part of the university’s mission significantly to address these groups’ needs and aspirations. The conclusion: Every faculty member, as a condition of appointment, must further that aspect of the institution’s mission in their teaching, research, and service—in one or more. The policy’s emphasis is on the imperative.
What follows will present for study a case in point, the policy adopted at the University of Illinois, the grounding and function of which would seem to be concordant with the rationale undergirding DEI policies elsewhere. The DEI policy requires faculty to satisfy those reviewing their dossiers for tenure and promotion that in research, teaching, and service to the university and to the larger community the faculty member has compiled a satisfactory record of activity in support of diversity, equity, and inclusion. This would seem to resonate sympathetically with Justice Powell’s influential opinion in the Bakke case concerning the cognizance of race in the admissions process of a public sector law school. Powell opined that the university could take account of race when part of a process that took applicants whole, as individuals who present themselves in near infinite variety in capacities, experience, and interests. But that is not what DEI is about. The policy’s notion of diversity requires that the persons subject to its concern must be fit into categories identified by a group attribute and by goals attributed to the group.
As the ensuing unpacking of the policy makes no small demand on the reader, it would be well at the outset to anticipate the result. As will become clear, the wrongs wrought by the policy are three: First, by folding socio-political goals into the process for tenure and promotion the policy conflates those ends with professional qualifications. This conflation infringes academic freedom. Further, were it to become acceptable for a university to commandeer its faculty toward socio-political ends, made part of the faculty’s professorial obligations, there would be no principled reason why those who fund the institution—the legislatures—should not impose those socio-political ends that they hold dear.
Second, for the DEI rules to withstand constitutional muster, the faculty member being evaluated, who is required to make a record of DEI activity, and those evaluating that record must be able to discern with clarity what sorts of activities in support of what groups with what goals and to what extent will satisfy the mandate. The clarity of guidance on the former, what groups with what goals, is questionable; on the latter, the extent of engagement, is nonexistent.
Third, and paradoxically, were clarity to be addressed what would be made even more clear is that continuance on the faculty is conditioned on support of groups to further favored political or social ends. This infringes on the scholar’s political and private life; it is illegitimate from an institutional perspective and unlawful from a constitutional one.
The University of Illinois’ DEI policy will be explored. The academic freedom and constitutional implications will then be examined. Because much of the public debate on both accounts has turned on an analogy to the loyalty oath controversy of sixty years ago, out of which the Supreme Court’s reflections on the relationship between academic freedom and the first amendment grew, the oath will be taken up as a useful lens through which DEI can be considered.