In the Name of Diversity: Why Mandatory Diversity Statements Violate the First Amendment and Reduce Intellectual Diversity in Academia

Should DEI statements be included in faculty selection? Exploring legal, diversity, and validity issues

“…It is important to understand that in the United States, there is disagreement among legal scholars as to whether DEI statements actually violate the First Amendment‐ Free Speech rights of faculty job applicants at public universities. Some scholars argue that mandatory DEI statements are akin to loyalty oaths and are violative of Free Speech and Academic Freedom (Epstein, 2022, Ortner, 2021). Other scholars have argued that DEI statements are not a violation of Free Speech, nor are they loyalty oaths or litmus tests for faculty (Soucek, 2022a), arguing instead that they are simply useful tools for advancing the DEI mission of a university.…”

“…Along with academic freedom is the expectation that universities will remain view‐point neutral. It is well known that in the 50s and 60s that the University of California required faculty to take loyalty oaths denouncing communism (Ortner, 2021). In Tolman v. Underhill (1952), faculty challenged the loyalty oaths to the California Supreme Court, which found the university policy to be invalid.…”

“…In Tolman v. Underhill (1952), faculty challenged the loyalty oaths to the California Supreme Court, which found the university policy to be invalid. It can certainly be argued that requiring job applicants to profess their commitment to DEI in a statement for review during the hiring process is simply a new kind of loyalty oath (Ortner, 2021). DEI statements are considered political statements and thus should not be required by public schools (Leiter, 2020).…”

“…Hence, the use of DEI statements in faculty selection is legal for private universities, as far as Free Speech rights are concerned, since there are no Free Speech rights at issue.It is important to understand that in the United States, there is disagreement among legal scholars as to whether DEI statements actually violate the First Amendment-Free Speech rights of faculty job applicants at public universities. Some scholars argue that mandatory DEI statements are akin to loyalty oaths and are violative of Free Speech and Academic Freedom(Epstein, 2022, Ortner, 2021.Other scholars have argued that DEI statements are not a violation of Free Speech, nor are they loyalty oaths or litmus tests for faculty(Soucek, 2022a), arguing instead that they are simply useful tools for advancing the DEI mission of a university. Other than the three scholarly legal articles cited above, there is only public debate and popular press articles discussing the merits of DEI statements in the interview process for higher education.…”

Academic free speech or right-wing grievance?

“…In the U.S., DEI or “commitment to diversity” statements are now a commonplace component of faculty job applications but that practice is decried by some as an affront to academic freedom. 33,48,165–168 A frontline organization in these attacks is the Foundation for Individual Rights and Expression, 168 which has a long history of right-wing funding. 169 Other conservative organizations have joined in these attacks, 170–172 often characterizing DEI initiatives as exercises in CRT, 172–176 and in the U.S. there is a growing push by conservative lawmakers to make DEI activities illegal.…”