University of Southern Maine Asks Students and Faculty to Sign "Black Lives Matter Statement and Antiracism Pledge"

The President of the University will post a public list of signatories. Nonsignatories may be subject to retaliation.

|The Volokh Conspiracy |

Last week, I blogged about the Ohio State University. OSU asked members of the community to sign a "pledge" that acknowledges "Buckeye values." I agree with co-blogger Keith Whittington: "Universities should not be in the business of requiring and enforcing such political pledges." FIRE has asked Ohio State to rescind the pledge.

This issue is not isolated. The University of Southern Maine has asked all members of the community to sign a "Black Lives Matter Statement and Antiracism Pledge." The pledge cites Ibram Kendi, who popularized the concept of "antiracism."

We stand in solidarity with those who are working for justice and change. And we invite you to join us in pledging to be a practicing antiracist at the University of Southern Maine and in all aspects of your life. We believe, as Ibram Kendi writes, that "the only way to undo racism is to constantly identify it and describe it — and then dismantle it."

The University will publish the list of antiracists. There very well may be retaliation against those who do not sign the pledge.

This pledge is unconstitutional, and a violation of academic freedom. I have little to add beyond my post about Ohio State. Universities cannot prescribe what shall be orthodox.

Brian Leiter offers a related argument:

You can't call on members of the community to sign an "anti-racism pledge," just like you can't call on them to sign a loyalty oath to American capitalism.   Of course, this isn't quite as bad as mandating as a condition of employment a profession of loyalty to the ideology of anti-racism (whatever that is:  "I won't join the Klan," "I won't use racial epithets"?, "I won't disagree with Black Lives Matter?"), but it comes to the same thing:  after all, the President has issued a public call for signatures, his staff has duly signed, so who would want to risk being branded a "racist" for failing to be counted?   But there are plenty of non-racist reasons not to sign:  e.g., doubts about what will count as "the conditions and structures" that allegedly support bigotry, doubts about who one is being asked to "stand in solidarity" with and doubts about their conceptions of "justice."   No one, least of all this blowhard President (who sounds more like the former politician he is), knows what it means to be an "antiracist…in all aspects of your life."   That the President goes on to quote the totalitarian wannabe Ibram Kendi certainly does not inspire confidence.

A brief note on antiracism. This phrase doesn't mean you simply oppose racism. Kendi writes in his book, How To Be an Antiracist:

The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.

This argument resembles the divide between Chief Justice Roberts and Justice Sotomayor. In Parents Involved, Roberts wrote "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." In Schuette, Justice Sotomayor wrote, "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination." Kendi wrote what Sotomayor was thinking.

The Antiracism pledge is especially problematic for state institutions. Kendi advances arguments in favor of affirmative action that the Supreme Court rejected three decades ago in City of Richmond v. J.A. Croson Company: past racial discrimination cannot justify rigid racial quotas. And Grutter v. Bollinger likewise held that universities cannot use affirmative action to remedy past discrimination. I have always thought that Justice Marshall's Bakke dissent was the only intellectually honest position in favor of affirmative action. (Randy and I are adding Marshall's dissent to our casebook). The diversity rationale was always window dressing for Marshall's position.

This pledge is calling on state actors to take positions that are in violation of Supreme Court precedent. In many regards, antiracism is unconstitutional. For that reason, I was especially concerned that 150 Law School Deans (including my own) referenced anti-racism in a letter to the ABA.

NEXT: Diversity Training Isn't Just Expensive, It's Counterproductive

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  1. How is publishing the names of those who signed not a FERPA violation?

    1. It’s directory information.

      1. ?? Whether or not someone has signed a particular statement indicating a political view is “directory information”? That doesn’t seem right.

        1. You could be right about that.

      2. NO Sarcastr0, look up at what “directory information” actually is.
        AND a student can asked for that not to be published (I did). So that throws this all out…

    2. Because it isn’t an education record, and is consensual.

        1. Thank you for (a) confusing googling with knowing the law, and (b) providing a link that doesn’t actually support your point or respond to mine.

          1. Thank you for (a) confusing googling with knowing the law

            I suppose one way a 19th-year associate can try to feel better about life is to arrogantly lash out at non-lawyers. Different strokes.

            1. DMN criticized Ed’s comment.

              You responded by trying to go after DMN personally.

              1. DMN criticized Ed’s comment.

                Nope. I quoted the part of his comment I was responding to. Feel free to reread it.

                1. And you responded by personal name-calling.

                  1. Name-calling? Curious turn of phrase. Almost as curious as to why you’re jumping to the defense of such a charmer.

  2. Every time I see “University of Southern Maine” I think of P.D.Q. Bach.

    1. I think “University of Small Minds”

      Sorry…..

    2. Apropos.

      Kendi and company clearly believe their ends justify any means. Otherwise how does one not get the simple concept that two wrongs don’t make a right.

  3. This is the same university that attempted to award academic credit for going down to DC and protesting the Kavanaugh nomination.

    See: https://www.pressherald.com/2018/10/03/usm-pulls-pop-up-credit-to-protest-kavanaugh-appointment/

    1. No, it isn’t. A random professor is not a university.

      1. Are you aware of the protocol for course approval in academia?

        1. More than you are. Are you aware that this wasn’t approved?

  4. Kendi wrote what Sotomayor was thinking.

    The amazing powers of Josh Blackman extend to mind-reading!

    1. I could write what Josh is really thinking, and believe me it would BLOW YOUR MIND!!! But unlike Josh I can’t afford to just spray my clairvoyant insights around free of charge like some mind reading cat in heat. My kids gotta eat too.

      1. You need tenure.

        1. Who doesn’t?

  5. “Kendi wrote what Sotomayor was thinking.”

    I was with you until this. Seems like a big leap.

    1. Not at all. It is the logical consequence of Justice Sotomayor’s quite radical position (which in Schuster was that, the constitution at least in some cases mandates racial discrimination or AA).

      Proponents of AA should bite the bullet and say they are fine with a society rife with quotas and attendant ethic tensions

      1. *Schuette

      2. You think this is radical:

        The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination

        1. If you could read minds like Josh does, you wouldn’t ask such stupid questions.

        2. Why be obtuse and deceptive in an anonymous online forum?

          Her position in that case was that Michigan voters were constitutionally debarred from adopting a resolution banning affirmative action.

          And even that quote alone would be radical and totalitarian if it leads one to idiotically attribute all disparities to discrimination (which Kandi’s ahistorical view) and adopt quotas until some never before seen level of precise racial proportionality is obtained.

          1. (Her pro-never-ending-discrimination position was even too much for Breyer to swallow)

            1. Under that rubric, I guess every Thomas lone dissent is crazy. Even when Alito joins him, it’s still a madhouse.

              Being melodramatic about decisions you disagree with is Blackman’s side of the street, you don’t need to join him there.

          2. So your argument is different from that of Blackman.

            And you think the Sixth Circuit were a bunch of wild radical totalitarians in the decision below in Fischer

            I’m also not sure you’re really giving a careful reading to Sotomayor’s finding:  Section 26 restructures the political process in Michigan in a manner that places unique burdens on racial minorities. It establishes a distinct and more burdensome political process for the enactment of admissions plans that consider racial diversity.

  6. The other problem with an anti-racism pledge is that the ideology of anti-racism usually involves rejecting factual reality about the causes of racial disparities.

    Consider the factually false claims of the leading self-proclaimed “anti-racist,” Dr. Ibram X. Kendi. His axiom is, “When I see racial disparities, I see racism.”

    Kendi’s claim ignores the fact that many racial disparities are not caused by racism. For example, Latinos live three years longer than whites, on average, even though healthcare workers don’t discriminate in their favor. Asians make more money than whites, on average. And while African-Americans make less money than whites, on average, immigrants from African countries like Nigeria actually make more money than whites.

    Racial disparities exist everywhere on earth, often for reasons unrelated to racism, as the black economist Thomas Sowell chronicles in his book “Discrimination and Disparities.” To abolish racial disparities would require totalitarianism, says black economist Glenn Loury.

    But Kendi’s tenets have become an article of faith on America’s campuses. For example, Cornell’s president told her university to read “’How to Be an Antiracist,’ by National Book Award winner Ibram X. Kendi.”

    Dr. Kendi’s views are celebrated by the Washington Post and the New York Times. The Times has touted Kendi’s axiom that “When I see racial disparities, I see racism.”

    1. And factual reality about the State of Maine as well.

      Racism in Maine, and this includes the Klan in the 1920’s, was against persons of French Canadian (Quebecois) ancestry. (Google Father John Bapst.) It was on language (French) and religion (Catholic) and not skin color. And that’s somehow being ignored.

      And the other racism is on birthplace — were you born in Maine or are you “from away.” That”s as nasty as any other form of racial discrimination ever could be.

      1. Heh. I’ve never been to Maine, at least not since I was walking and talking, but I wonder if it’s as bad as Hawaii.

        Living there from age 10 to 13 gives me a really good anchor for dealing with people who insist “it’s impossible to be racist towards white people”.

        “Oh it can’t be racism if it’s not institutional!”

        I tell you, there’s very little more institutional than school, and being referred to with ethnic slurs by the teachers makes it feel pretty top down institutional, too.

    2. Kendi and Di Angelo are a pair of faux-intellectual shysters.

  7. Once you understand that the “critical” in Critical Theory doesn’t mean critical thinking but “I criticize you”, everything becomes much more clear. Act accordingly.

    1. Funny, no one else brought up critical theory.

      To be fair, neither did you. Because it’s pretty clear you haven’t done much study of the subject; just a bugaboo someone told you to hate.

      1. And, there it is, don’t refute the argument, but defend your beloved hokum theory. Which, as I said once is deritlvative, perceive-self-as-helpless deconstructionist tripe. But, it fits with a certain worldview. I don’t need to be told that crit theory is ‘bad.’ Critical theory is pretentious, preening, smug, has delusions of intellect, efficacy, importance. All from academe, from whom I had the distinct impression that orange man was bad… but, there it is, all the shared traits.

  8. You are either a racist or you are not.

    You either support racial discrimination or you do not.

    There is no third way …

    1. OK lol

    2. You love this semantic game wherein you prove affirmative action is definitionally racist.
      We’ve been around about this – when the playing field is tilted, it’s already discriminating. Noting that and acting to mitigate is not racist.

      This game of dictionaries and formalism reminds me of the pro-life argue that fetuses are alive and of the human species and declare they have solved the issue for everyone.

      1. You have already verified your racist (and sexist) bona fides — I offer you another chance to let it go. Racism is wrong. Sexism is wrong.

        Individuals are NOT playing fields — they our fellow citizens and they have rights, human rights that YOU choose to ignore and violate.

        1. Ah. So you’re opting for dogmatic namecalling.

          Never mind then, shoulda taken Leo’s led and not engaged.

          I’d note you’re calling a bunch of Supreme Court Justices past and present racists who don’t understand how human rights work.

          1. The same supreme court that gave us Roe, Dred Scott, Plessy and Korematsu? Surly you jest.

            If you don’t like being called a racist — stop being a damn racist!

      2. You need to prove that the playing field is tilted. Differences in outcomes do not constitute proof.

        1. Plenty of studies out there about systematic racism.

          1. That’s weak. But lets say that’s true in every single case affirmative action is evoked (it’s not): why not try to fix those first order problems directly instead of superficially by introducing additional layers of bias?

            1. Yeah – this is a kludge while the system is sloooowly improved.

              And it’s not for some justice reasons – it’s that our country does better when it’s meritocracy operates better.
              When we look at all the entire talent pool we won’t neglect some hidden Einstein.

          2. Plenty of studies out there about systematic racism.

            Right….

            I could have gotten involved in drug dealing when I was a teenager — I didn’t.

            1. Wow, you just disproved all those studies with your noting that individual choice is a thing.

              Amazing, Ed!

  9. I remember when I first heard about this disparate impact silliness. I remember reading a Washington Post article in the early 90’s about the area having too few flower shops owned by blacks.

    My first thought was “Um, white people … perhaps blacks folk are tired of working in your damn garden!!!!”

  10. Blackman wrote: “Universities cannot prescribe what shall be orthodox.”
    So why are grades given for, say, calculus classes? Isn’t the vast majority of undergraduate schooling precisely a prescription of the orthodox?

    1. Because 2 + 2 = 4 is not based upon your skin color, your feelings or your marital status but a concrete, unchanging truth?

      1. Yeah, there have been no disagreements over “concrete, unchanging truths” among professional mathematicians ever. [rolleyes] Kurt Godel demolished the once-quite-popular idea that math could be “complete” only 89 years ago. No. No matter how much I want science or math to be completely objective, I cannot get past the fact that these activities are only performed by humans. Biases affect everyone, in every field, and those biases affect what is orthodox at any given time. Besides, sometimes 2+2=11.

        1. Never said there were not disagreements, or that we have all knowledge — we never will.

          PS: Tell your “the science is settled!!!!” friends!!!
          PSS: Funny how science follows the left-wing need of the moment, huh? Separation of science and state!

          1. Dave blew up the distinction you were trying to make, looks like.

            Science is settled means you need to bring science to a science fight, when y’all bring propaganda and handwaiving.

            LOL if you think science is manipulated towards liberal outcomes. Says a lot about you relationship with reality.

            1. You make a lot of assumptions yourself, don’t you?

              Science is a tool, but like progressivism, some have tried to turn it into a religion. And like a demagogue ignoring biblical context in order to make a text say what he wants it to say, scientists conform to their biases, ignoring data they find inconvenient. I know you are well aware of the late problems of reproducibility.

              And considering politics lately seems to be following high school science projects (plastic straw bans, COVID lockdowns) I suspect the current age of progressivism to be even stupider that our first. It does remain to be seen if the American progressive eugenics movement makes a comeback — if it does I am sure it will clothed in anti-racism (and be as racist as always.)

              1. Science is a tool, but skepticism of current findings need to be at the same level of fidelity as science, which it rarely is.

                Scientists sure are biased. However, unlike religion, science is not a revelatory discipline, but rather a phenomenological one. Scientists take measures to minimize their bias. They fail all the time, but if you’re going to challenge a scientific outcome as arising due to bias, you need to bring rigor. Which you have not.

                You know who brought up the issues with reproducibility of clinical studies? Scientists.

                Indeed, your final paragraph shows quite well how your issue with science is not it’s protocols, but rather it’s outcomes.

                1. Scientists take measures to minimize their bias.

                  Tee hee hee hee — naive, aren’t we.

                  My issue is with WRONG outcomes, and boy are wrong outcomes based upon poor science and the power and vain glory government officials crave on full display. Not to worry, it is mainly old people dying (and the economy and billions in individual wealth) — small price to pay to get the outcomes progressives want.

                  1. And you know the outcomes are wrong, how? Because they don’t agree with your feelings. No science or attempt to minimize bias involved on your side, I see.

                    1. Yup, letting all of those old people die while shuffling deckchairs for NO damn good and crippling the economy to ZERO effect.

                      A science/expert win I tell ya!

          2. DWB wrote: “PSS: Funny how science follows the left-wing need of the moment, huh?”
            Well, clearly universities shouldn’t be prescribing such partisan orthodoxies. What method of pedagogy would you recommend instead?

  11. I must say I am sad to see Kendi’s work go this way. “Stamped from the Beginning” has some very valuable insights. He establishes that the preponderance of explicitly racist writings beginning in Europe were created for the purpose of justifying slavery. So it’s not “first they hated, then they enslaved.” Instead, it’s “first they enslaved, like quite a few other people, then they created a body of literature ginning up reasons for slavery, and pretty soon they hated.”

    That’s actually interesting. He tries to elaborate on it by saying that crawling into one’s own head is not the best way to “fight racism,” but rather, policy initiatives – economic and legal actions – are. That “racism” was economic when it began, continues to be economic, and needs to be addressed in economic terms.

    Somehow the DiAngelo/fragility crowd has gotten hold of it and made it look like it says what they want it to say. “How to Be an Antiracist” is supposed to be a Cliffs Notes of “Stamped,” but it’s much more about Kendi’s own life. However, both books postulate a sort of trinity of ism, not of people but of ideas: segregationist, assimilationist, and antiracist. He finds threads of all of these in authors ranging from WEB DuBois to Frederick Douglass to the Mather preacher family in New England. Truly nobody is perfect except maybe Angela Davis, but I think that may have been more convenient than actual even in his own eyes. He spends hundreds of pages making the point that US history is a tangle of policy and ideas that contains more than one take on Black people, and this variety is responsible for the durability both of racism and of the push for justice. This is a point worth sitting with; Stamped does not ever sketch a certain future in which one thread, perhaps anti-racism, wins. It’s a nuanced view.

    Rather than “find the one right way,” Kendi’s advice is to take any given idea and sort out the parts of it and the consequences of it to see where the segregationist impulse (back to Africa, black separatism, separate but equal, Jim Crow), the assimilationist impulse (integration, “I don’t see color,” talented tenth, Black people should lift themselves up, etc) and anti-racist impulse (in the presence of disparities, don’t jump to blaming a group, look for what’s driving the opportunities and costs the group experiences, and if you want different outcomes, change policy) are. Sorry, that was an awful sentence, but the “Stamped” I read is not the proto-fascist screed that it sounds like.

    Now, after he wrote Stamped, does he go off the rails a little? I think yes, partly because Stamped is actually pretty radical, and it may have been very difficult to sustain that. Also, he had significant health problems and so did family members; parts of it read like they were written in the rare moments of clarity, surrounded by a fog of pain. He may not even realize what he created. Stamped has his proposal for an anti-racist policy think tank. He either tried to start or did start it at a university in DC but it appears he no longer works there. “How to Be an Anti-racist” is a call for each individual to undertake the process of evaluating their own ideas. He doesn’t, in that book, say “and there is one right answer which you must profess.” It’s more like, if you think about this long enough you will see my point, which is the confidence of the academic, not the fascist.
    Most people in the current diversity training world, workshop or no workshop, are not going to ever buy the thesis of Stamped, which is that the individual-level stuff is not the primary task. Diversity training is predicated on dealing with individuals. Nowhere in Stamped is there justification for the current diversity training scene, which makes me deeply suspicious that they seem to support his book. I think most people haven’t read it, because it’s dense as hell and it does bog periodically. Stamped would say to them, don’t bother with this, it is an individual journey into your own head, do it on your own time; work at the economic and policy level instead.

    But since most people have no access to or interest in working at the economic and policy level, and activism is close at hand, and much of activism includes navel-gazing, so it goes.

    “How to be an antiracist” has some very interesting anecdotes about his Christian parents. He was raised in a deeply faith-oriented, middle class environment. I see some of the appeals to government as higher authority, as shadows of the appeals to a higher authority of a God. So it doesn’t flirt with totalitarianism because he’s a communist big-government guy, it flirts with totalitarianism due to his ideas of God. Yeah, small distinction. The principle of rigorous, open inquiry is what drives his work and it’s what he advocates for individuals to take on, in their spare time.

    I am resigning myself to watching Kendi backtrack from his very, very interesting scholarship, into what the audience seems to want in this moment. These awful loyalty pledges. If he stood up and said “this isn’t what I meant,” I think he would be canceled, though. I will have to stop mumbling “but… but…” as it disappears beneath the waves. Maybe someday the other three people to actually finish the book will speak up.

  12. I’ve had a few colleagues tell me that this Fall their businesses are planning on holding similar petition drives. They are going to ask employees to sign on to show “the company’s commitment to diversity among its employees” and then publish the signature list. That is pretty darn coercive for a private employer to do. If your boss comes around the department and says “here sign to show you support diversity” how many people are going to feel like they are free to decline. Zero.

    Depending on state or local law, it is probably legal to do this and probably legal to also fire someone who doesn’t sign (especially managers who oversee diversity policies or initiatives.) And some libertarians might say “well just don’t work there…” But I think this is crossing the line of acceptability and says a lot about our society if other think something like this is OK for a private employer to do.

    1. I think the issue is that the left thinks it will always be in charge.
      That hasn’t been true in the past, I doubt it will be in the future.

      And they won’t like it when the right adopts their tactics.

      1. They used to think that they’d always be in charge.

        Now they intend that they’ll always be in charge.

        It’s a subtle difference, but it has huge implications. Before they thought it would happen in the normal progression of events. Now they’re going to make sure it happens.

        The next time they get control of the White house and both houses of Congress, entrenchment legislation is dead certain.

        1. You three should get a room where you just talk about what the left is gonna do and secretly thinks.

        2. Hillary Clinton entered Wellsley College as a Goldwater Girl.

          Change is coming — and I think they realize it.

          1. One fifth of Harvard freshmen are taking a year off — that alone is going to change society.

            1. Change is always coming, Ed.

              I’d bet on the adaptability of the group looking to progress versus the one that wants to stuff us back into an imaginary 1950s.

              1. Show me on the doll where the 1950’s touched you

  13. Just say no to government compelled speech.

  14. “I pledge that I believe black lives matter from the moment of conception and I will not support any organization or party which believes otherwise. Also, I will view with suspicion any political party which historically had a paramilitary arm which did not value black lives.”

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