Mandatory DEI Statements At Universities: They’re Distasteful, But Are They Legal? Tom Hafer and Henry I. Miller
“So, we say to all university presidents, starting with our own, MIT President Sally Kornbluth: Tear down this wall of hypocrisy and immorality. Disavow the use of mandatory DEI statements in any aspect of hiring, promotion, or admissions.”
Many U.S. universities now require Diversity, Equity, and Inclusion (DEI) statements in applications for tenure-track professorships and even for graduate students. Often, rather than demonstrated excellence or promise, it is the first filter for applicants. You may be a latter-day Einstein, but if your DEI statement says something like, “I abhor discrimination and treat all people equally, regardless of race or gender,” you will be out of luck because you’re out of step with contemporary DEI virtue signaling.
What is DEI, and what are its shortcomings as a filter? Let us start with the words themselves. Here is what Google (via Oxford Languages) says for diversity: “The practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations, etc.” Note that the New Age definition omits any mention of a range of different ideas or viewpoints. But it is precisely new ideas that will spur progress in the arts, science, and technology, not a mix of superficial differences such as skin color and gender.
But worse than this (pseudo) Diversity is Equity. Many people mistakenly conflate equity with equality, but there is a world of difference. For example, here are the definitions used by the Massachusetts Institute of Technology’s Mechanical Engineering Department:
The goal of equity is to ensure fair treatment. It differs from the principle of equality in that equality affords everyone the same treatment, while the principle of equity acknowledges existing inequalities and adjusts and tailors resources to afford everyone equal opportunity. … Finally, we measure equity based on outcome rather than intent. If a policy, program, activity, building or other physical structure contributes to inequities, then it is unjust and must be modified to ensure all members of the community can thrive. (Emphasis added.)
In other words, if members of a certain group perform poorly on tests, it is the fault of the test (and those who constructed it), so it must be modified by eliminating it, lowering the bar for a passing grade, or inflating the grades of the underperformers.
It would not be surprising if some people disliked being forced to submit a statement endorsing and signing on to DEI. But many universities require them.
A critical question is whether such compelled speech is legal.
First, we need to ask whether all compelled oaths are illegal? Clearly not, because virtually all politicians and military service members must take an oath of allegiance to the U.S. Constitution. What can make a required oath illegal is compelling the oath taker to espouse a particular political position. That would run afoul of the Compelled Speech doctrine, which is derived from a series of cases that make it clear that the First Amendment not only limits the government from punishing a person for his speech but also prevents the government from punishing a person for refusing to state some specified set of beliefs.
There are a number of legal decisions associated with the Compelled Speech doctrine. An early one was West Virginia State Board of Education v. Barnette (1943). In this case, the U.S. Supreme Court found that school children could not be compelled by the government to salute the flag or recite the Pledge of Allegiance. Since public schools are considered to be part of the government, compelling students to take an oath violated the First Amendment.
In Cramp v. Board of Public Instruction of Orange County (1961) the Supreme Court ruled that a Florida state employee could not be forced to take an anti-communist oath. That decision is relevant to the anti-communist statements in the loyalty oaths that California Universities required in the 1950s, which were ruled illegal in Tolman v. Underhill in 1952 and further limited in Vogel v. County of Los Angeles (1967). These decisions make clear that compelled speech espousing (or opposing) a particular political point of view is unconstitutional.
In the 1943 Barnette case, Justice Robert Jackson memorably wrote:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
So, can universities require statements pledging fealty to DEI for job applications and student admissions? Let us start with an obvious case: public universities such as UCLA. Because it is publicly funded, UCLA is treated as an arm of government, but it requires DEI statements from all new hires and employees seeking promotions. How can this be legal? The answer is that administrators hide behind the rubric of “compelling interest,” arguing that a compelling interest in diversity trumps the Compelled Speech doctrine.
What lends (legal) credibility to this claim is the ever-narrowing exception to established law for “affirmative action.” Affirmative action originally allowed universities to set quotas for various races in clear violation of Title VI of the 1964 Civil Rights Act, which states, “Title VI prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.” But without stating it explicitly, affirmative action was seen as a temporary abridgement of equal rights and opportunities. If the Supreme Court rules that the time for affirmative action is over, this loophole vanishes, and with it the rationale for DEI statements.
When we put this argument to a popular Chat AI program, it responded that DEI statements might not be seen as compelled speech because they don’t tell you how to respond to them. We disagree: Try asserting in your application that “All Lives Matter” or that you will be colorblind in your treatment of colleagues and students and see what happens.
The flimsy veneer of compelling interest for public universities may be torn away by the Supreme Court as early as this year. But what about private universities? Our own alma mater, MIT, requires DEI statements for many tenure track positions. If such private institutions do not accept any Title VI money, they can do as they please. But virtually all large universities do accept these funds, so they are equally subject to Title VI. And if the rationale of compelling interest is invalidated, then the rationale for DEI goes with it. But it will probably take numerous lawsuits to make that happen.
Recently, the MIT Free Speech Alliance, a non-university-affiliated group, hosted a debate at MIT on the subject, “Resolved, that academic DEI programs should be abolished.” Despite the existence of six associate deans for DEI and the 70-odd other supporting positions, no one from MIT was willing to take on the defense of DEI publicly. Instead, two outside experts had to be brought in to defend it, and even they both agreed that DEI has gone off the rails. The debate can be seen here.
Lastly, there is the moral issue. How is it fair to compel someone who may not agree with DEI nevertheless to provide a statement that supports it? How different is this from the coerced confessions of various Communist regimes, or the requirement to join the National Socialist party in order to get the plum jobs in 1930s Germany?
So, we say to all university presidents, starting with our own, MIT President Sally Kornbluth: Tear down this wall of hypocrisy and immorality. Disavow the use of mandatory DEI statements in any aspect of hiring, promotion, or admissions.
Tom Hafer developed systems for neutralizing rockets and drones. He currently coaches teenage robotics teams. Henry I. Miller, a physician and molecular biologist, is the Glenn Swogger Distinguished Fellow at the American Council on Science and Health. He was the founding director of the FDA’s Office of Biotechnology. They were undergraduates together at MIT.
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