74 Pages Posted: 20 Apr 2022 Last revised: 27 Apr 2022
Date Written: 2022
Universities increasingly require ‘diversity statements’ from faculty seeking jobs, tenure, or promotion. But statements describing faculty’s contributions to diversity, equity, and inclusion are also increasingly under attack. Criticisms first made in tweets and blog posts have expanded into prominent opinion pieces and, more recently, law review articles. And the attacks are having an effect. Within universities, faculty-wide resolutions for and against mandatory diversity statements have been called and academic freedom committees have been asked to intervene. Outside universities, lawyers are recruiting plaintiffs to challenge diversity statement requirements in court.
Behind all the rhetoric, the arguments made about diversity statements are, at heart, legal claims — and serious ones at that. Critics allege that universities are engaging in unconstitutional viewpoint discrimination, violating their faculty’s academic freedom, and imposing political litmus tests akin to the loyalty oaths struck down during the Cold War era. Yet evaluating these as legal claims requires grappling with complicated, often unsettled doctrine regarding the First Amendment and higher education — something that, unsurprisingly, hasn’t been done on the comment threads, opinion pages, and faculty committees where this discussion has largely played out until now. This Article does that work, fleshing out the criticisms and developing a framework to address them and guide universities on how they can require and evaluate diversity statements — should they want to — without violating either the Constitution or the academic freedom on which their mission depends.
Keywords: First Amendment, academic freedom, viewpoint discrimination, political oaths, political tests, DEI, diversity, higher education
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