"Do University Diversity Statement Requirements Violate the Constitution?"

I very much enjoyed participating in this Federalist-Society-organized webinar, together with Prof. Brian Soucek (UC Davis). As is common for such Federalist Society programs, the panelists were chosen to present different views (though I think it's fair to say that Prof. Soucek and I agree on some things as well as disagree on others), and were not chosen exclusively from within the Federalist Society: Prof. Soucek is generally not at all a Federalist, to my knowledge.

I hope you find it as interesting as I did! Here's the blurb:

In recent years, universities have increasingly required '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. These 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.

Watch our experts in a discussion on Professor Brian Soucek's recent article in the UC Davis Law Review about these diversity statements fleshing out the criticisms and developing a framework to address if universities can require diversity statements without violating either the Constitution or academic freedom.

You can also read Prof. Soucek's full article. As to my views, I was delighted to see a commenter write,

I came into this conversation thinking "what's the big deal with DEI statements?" and generally on the same page as Prof Soucek. However, I think Prof Volokh's thought experiment absolutely devastated DEI statements.

So let me quickly summarize that thought experiment, which I gave in my part of the conversation (which begins at 16:45):

We get involved in another war. Much of the country, including some university system (whether Prof. Soucek's and my University of California or, say, the University of Nebraska) very much supports the war effort. So the University decides to offer faculty members and prospective faculty members an opportunity to mention their work related to the subject for purposes of evaluation, promotion, and hiring.

If, for instance, some professors joined the National Guard, which takes extra time, that could be used in deciding whether they were being productive enough scholars (just as other faculty might get extra time for tenure evaluation if they took semesters off because of illness or for parental leave). If they put on programs that helped returning soldiers, that would be counted as a form of "service" (faculty generally being evaluated on scholarship, teaching, and service, roughly in that order), even if normally service would otherwise focus on other subjects (such as service on university committees, or writing op-eds or blogs educating the public on the faculty's areas of expertise). If the History department decided that military history hadn't been taught enough, then indicating that one is teaching military history or is about to do so might count for extra teaching credit. I don't think this would violate the First Amendment or academic freedom principles. A university is entitled to set and recalibrate its priorities in these ways.

On the other hand, say the university said (following UC Davis) that "applicants seeking faculty positions … are required to submit a statement about their past, present, and future contributions to promoting [the war effort] in their professional careers," and did the same for existing faculty as well. This doesn't expressly forbid people from criticizing the war, or from just avoiding matters having to do with the war. Perhaps even behind closed doors the university might try to deal with this fairly, maybe even weighing scholarship or public commentary that comes to an anti-war conclusion equally with scholarship or public commentary that comes to a pro-war conclusion.

But wouldn't the message be quite clear—if you want a job here, or if you want to keep your job (especially if you're untenured), or if you want a promotion, you'd be wisest to express pro-war positions, or at least keep your anti-war positions to yourselves? And is that consistent with the First Amendment and academic freedom principles?