The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.