The Volokh Conspiracy

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Free Speech

Journal of Free Speech Law: "The Virtue of Tolerance in Hiring and Promotion by Private Institutions,"

by Prof. Peter de Marneffe (Ariz. State).


Just published as part of the "Non-Governmental Restrictions on Free Speech" symposium; here's the start of the Introduction and the Conclusion (the article is here):

The political cultures of some private universities and corporations are criticized as intolerant. There is a dominant political ideology, the thought goes, and those who hold it are intolerant of others who hold different views. One form of alleged intolerance is political discrimination in hiring and promotion: Those known to hold contrary views are not hired or promoted for this reason. But what is the virtue of tolerance and what attitude toward those who disagree with us does it require? Here I appeal to Scanlon's account of tolerance in order to identify a relatively clear sense in which political discrimination in hiring and promotion is intolerant, and to identify some bad things about it. It does not follow, however, that this kind of intolerance violates anyone's rights or that it should be illegal. So although this essay identifies a sense in which political discrimination in hiring and promotion is intolerant, it leaves questions of permissibility unanswered.

Central to the question of political intolerance on campus and in the workplace is disagreement about racial and gender proportionality as a social goal. This goal is that the proportion of faculty and students at private universities who are nonwhite or female and the proportion of corporate officers and managers at private companies who are nonwhite or female roughly matches the proportion of nonwhites and females in the general population. Is it a serious institutional failing if, compared to the general population, university faculty and corporate officers and managers are disproportionately white or male? Those committed to diversity, equity and inclusion—as the slogan goes—believe this is a serious failing urgently in need of being addressed. Others disagree. For convenience I refer to the first group as "DEI advocates" and to the second group as "DEI nonadvocates." A charge of intolerance might be directed at DEI advocates on the grounds that they discriminate in hiring and promotion against nonadvocates. Imagine, then, that you are a DEI advocate. What attitude toward nonadvocates in hiring and promotion does the virtue of tolerance require of you?

Scanlon writes:

Tolerance requires that people who fall on the "wrong" side … should not, for that reason, be denied legal and political rights: the right to vote, to hold office, to benefit from the central public goods that are otherwise open to all, such as education, public safety, the protections of the legal system, healthcare, and access to "public accommodations." In addition, it requires that the state not give preference to one group over another in the distribution of privileges and benefits.

This seems easy enough to accept and, as far as I know, DEI advocates do not generally hold that nonadvocates should be deprived of basic political rights or that the state should give preference to DEI advocates in the distribution of benefits such as public education and health care. But the question here is: What does tolerance require of private institutions?

Scanlon does not limit the virtue of tolerance to the recognition of equal political rights and the impartial distribution of privileges and benefits by the state. Tolerance requires in addition that we "accept as equals" those who disagree with us, where to accept others as equals in the relevant sense involves accepting that "all members of society are equally entitled to be taken into account in defining what our society is and equally entitled to participate in determining what it will become in the future." This, according to Scanlon, requires more than equal rights of participation in the formal political process of voting and running for office; it requires, too, equal rights of participation in the informal political process through which our society will become what it is in the future. "A tolerant society," Scanlon writes, "is one that is democratic in its informal politics." The question, then, is what must informal politics be like to be democratic? What, exactly, is one committed to if one believes that everyone is equally entitled to participate in the informal politics that will determine what our society is like in the future? …