RUTHFULLY YOURS

For months, skeptics of DEI mandates have celebrated as Silicon Valley, Wall Street, and even the Ivy League have rolled back DEI programs. The Supreme Court’s 2023 ruling against affirmative action appeared to cool Americans’ re-infatuation with treating people differently according to race.

But history should temper our optimism. Some recent policy changes look less like a full-fledged rout and more like a strategic maneuver.

Take, for instance, the universities that have recently abandoned mandatory diversity statements from job applicants. For decades, hiring committees have used such statements as a tool to discriminate against right-of-center viewpoints and white or Asian applicants.

Now, MIT and the Harvard Department of Arts and Sciences have scrapped diversity statements. Some critics of the practice seem to take this move as a sincere change. The New York Times quoted the former dean of the Harvard Medical School as saying “the large, silent majority of faculty who question . . . these diversity statements — these people are being heard.” Likewise, some observers called MIT’s move a “watershed moment.”

But, as Hamlet warned, “one may smile, and smile, and be a villain.” The Harvard deans themselves claim they’re ditching the requirement because it doesn’t work, not because these policies are wrong or illegal. They said diversity statements are “too narrow in the information they attempted to gather” and “confusing” to international candidates.

And the Harvard deans still want to consider candidate “efforts to increase diversity, inclusion, and belonging.” They will now use two statements: a “service statement” about how an applicant has strengthened academic communities and a “teaching and advising statement” about how an applicant has fostered an open learning environment.

MIT’s move appears more genuine, at least on the surface. MIT President Sally Kornbluth issued a statement recognizing that these statements “impinge on freedom of expression, and they don’t work.” The MIT decision is also university-wide and supported by MIT’s general leadership. But even here, we should not let optimism overrun skepticism. President Kornbluth herself confirmed that MIT remains committed to DEI by other means.

‘Strategic’ DEI: The New Paradigm?

A brief look at the broader history of university discrimination likewise suggests that the fledgling trend to end diversity statements may be more strategic than authentic. Harvard, MIT, and other elite universities have long defied efforts to end racial preferences.

In fact, the diversity statement itself was first adopted as a tool for sneaking around California’s Proposition 209, which forbade discriminatory hiring. California universities were so dedicated to discrimination that they invented a new means to do it on the sly rather than comply with state law. Harvard is no different.

In the context of admissions, these universities have responded to each major development in equal protection law by cooking up newfangled means to discriminate. Universities in California and elsewhere used to impose admissions quotas — reserving a certain number of spots for minority students. The Supreme Court said no.

Then universities in Michigan and elsewhere tried point systems, giving bonus points to minority applicants. The Supreme Court said no. Then they tried including race as one part of an amorphous “holistic review.” In the most recent episode of this tortured saga, the Supreme Court again said no.

That was just one year ago in Students for Fair Admissions (SFFA), the case against Harvard in which the Supreme Court ruled affirmative action in university admissions unconstitutional. The SFFA record shows just how devoted Harvard is to racial preferences — devoted enough to flout the law.

Discriminating For Diversity

For instance, an Asian American student in the highest tier of academic performance had less chance at Harvard admission than an African American in the fourth-lowest tier. An African American student in the top tier had well over a 50% chance of admission, while an Asian American in the same tier had about a 10% chance. The consistency of the racial makeup of classes over the years suggested that Harvard was engaged in an undercover quota system, which the Supreme Court ruled unconstitutional long before last year’s decision.

In other words, Harvard has never displayed respect for the law of the land on this issue. Are we now to trust that the decision to do away with diversity statements has upended decades of entrenched racial preferences?

Harvard’s response to SFFA only one year ago displays just how committed the Harvard administration is to keep on discriminating. Harvard issued a statement right after the SFFA decision dropped, defending its past policies, committing to continue to pursue diversity, and quoting the one line in the entire SFFA decision that appeared to leave a crack in an otherwise solid wall barring discrimination: “[N]othing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.”

And lo, a month later, Harvard revealed its essay prompts for applicants, the first of which was: “Harvard has long recognized the importance of enrolling a diverse student body. How will the life experiences that shape who you are today enable you to contribute to Harvard?”

Harvard is not looking for ways to comply with SFFA — it’s looking for ways around it. This has been the modus operandi of elite universities for the past half-century of legal battles over discrimination: Institutions like Harvard will ride the line of legality and cross it whenever they think they can get away with it.

This is the same institution that now claims to be voluntarily abandoning DEI statements. Can we trust them?

Cynical Compliance

The more cynical but realistic take is that Harvard has given up DEI statements because it loses nothing by doing so. Every applicant who applies to a faculty position at Harvard already knows what hiring committees will be looking for, and such applicants will volunteer that information through Harvard’s shiny new euphemisms, the “service” statement and “teaching and advising” statement. No one doubts what Harvard wants to hear from applicants, so why not abandon a contentious practice, melt into the crowd of other universities adopting reforms, placate angry donors, and carry on discriminating behind the scenes, as universities have so often done in the past?

But Harvard Arts & Sciences deserves some credit for at least one real step toward greater fairness: they only require these statements from finalist candidates. This prevents the statements’ use as an initial filtering device to cull candidates who do not signal either their minority status or their loyalty to the DEI orthodoxy. That does not, of course, prevent these statements from still influencing hiring committees, nor does it prevent committee members from doing their own research into candidates. For many Harvard job seekers, information about race and ideology are just a click away.

If Harvard and other elite universities want to demonstrate genuine change, they need to do more than change the name of an application statement and move it to a later stage in the hiring process. These universities should purge administrators who have proven over and over that they will find bold new ways to defy laws forbidding racial preferences. They should include people committed to academic freedom and equality on all hiring committees. They should institute blind review — at least in the early stages of hiring — which could help ensure that hiring committees review applicants without regard to race.

In the context of university admissions, Justice David Souter once said, “Equal protection cannot become an exercise in which the winners are the ones who hide the ball.” Sadly, this has become the exercise for several decades now, with universities hiding the ball behind false virtue and euphemism.

But the prohibition against discrimination is “levelled at the thing, not the name,” as Chief Justice John Roberts reminded universities in SFFA. If universities want to convince us that they now believe in equality under the law, they must do more than change the name of the tools by which they discriminate. They must stop hiding the ball.

Ethan Blevins is legal fellow at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach and abuse.