The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Higher education faces an inflection point with DEI
Stanford Law School was just the cardinal in the coal mine.
Universities have long had strong commitments to diversity. This fixation was necessitated by Justice Powell's concurrence in Bakke, and later Justice O'Connor's majority opinion in Grutter. Admissions offices and hiring committees were trained to recruit the "right" under-represented candidates, while assigning low personality ratings to the "wrong" under-represented candidates. In any other context, such pretext would immediately be smoked out. But when you're on the right side of the justice-arc, the tails are ignored. These practices likely violate federal law, but we will have to wait for the Supreme Court to weigh in. Still, the work of admissions offices and hiring committees was front-loaded. These organizations did not have any impact on the curriculum, and what was actually taught in the classroom. Nor should they have. These matters were traditionally left to faculty governance, and academic freedom.
In the last decade however, there has been a change. Universities began to establish offices of diversity, equity, and inclusion (DEI). The exact role of these entities was always amorphous, but it soon became clear their role would extend beyond admissions and hiring. Rather, DEI sought to inject itself into every facet of academic institutions where DEI could be at issue--that is, everywhere. Following the final year of the Trump presidency--which included George Floyd, the pandemic, and the Capitol riot--this aggrandizement accelerated. At many institutions, DEI has some oversight over the curriculum, student organizations, and even the faculty themselves. Of course, this design inverts the usual hierarchy of academia. DEI should be an administrative department with no more power than finance or IT. But armed with the cause of moral justice, and backed by aggrieved students, DEI can steamroll over pliant faculty who are afraid to push back and be called racists.
Judge Duncan's protest is a perfect illustration of that dynamic. Much has been said about what Dean Tirien Steinbach said. But a better question is why was she the one to speak? SLS has many associate deans who could have represented the administration. Indeed, there were several deans present in the room, including Jeanne Merino, the acting associate dean of students. Why did the DEI Dean speak at the podium? Steinbach claimed in the WSJ that she "was asked to attend the event by the Federalist Society." I am skeptical of this claim--and I am 100% confident that FedSoc would not have invited Steinbach if they knew she would not enforce the policy, but would instead berate Judge Duncan. But let's assume FedSoc invited her as the mediator. And let's assume that Steinbach's fellow associate deans, and even Dean Martinez, designated her as the representative of the administration. Why?
On today's campus, DEI administrators are among the most powerful positions. When every single conflict is refracted through the lens of race, it is of course obvious that DEI should be the sole arbiter of those disputes. (I'm sure many critics will dismiss this post as a byproduct of racism.) Consider the actual words that Steinbach used. She spoke on behalf of the administration:
And there is always an intention from this administration to make sure you all can be in a place where you feel fully you can be here, learn, grow into the amazing advocates and leaders and lawyers that you're going to be.
Because me and many people in this administration do absolutely believe in free speech.
Steinbach obviously thought she could speak on behalf of the Stanford Law School. And why would she think that? For some time, these roving bureaucrats have assumed a limitless jurisdiction to touch every facet of an academic institution that could fall within the chasm of diversity, equity, and inclusion--roughly the emptiness of the Grand Canyon.
But Steinbach was wrong. Dean Jenny Martinez did not give Steinbach "snaps," but did place her on leave. Steinbach likes to decorate her office with "ampersands" to signify the word "and" over "or." However, Steinbach should become intimately familiar with another punctuation mark: a period. Because her tenure will soon come to an end.
There is much to praise about Dean Martinez's letter. In many regards, she performed better under pressure than did Dean Gerken last year. Perhaps the comparison is unfair, since the "traphouse" situation happened first, at a school not bound by the First Amendment. Martinez had the benefit of more preparation time, as well as the Leonard Law. Still, both Deans were forced to confront these problems caused by DEI Deans. Last year, Gerken gently chastised Associate Dean Ellen Cosgrove and Diversity Director Yaseen Eldik. They were allowed to leave, quietly. In June 2022, Cosgrove retired, and Eldik was reassigned to a non-student facing position. Martinez, however, dropped the hammer right away.
How can it be, that at two elite institutions, DEI deans acted in a manner contrary to free speech, and placed their deans in intractable crises? Eldik and Steinbach apparently thought they were following university policy. They were so, so wrong. Still, this perspective certainly cannot be limited to Yale and Stanford. I suspect DEI deans across the country were quietly snapping along with Steinbach.
Thus, a foundational question: is DEI, as understood by Steinbach and Eldik, consistent with the mission of higher education? I think the answer has to be no. Michael McConnell, the only right-of-center scholar at Stanford, made this point sharply in WSJ:
Nor is it possible to ignore the damage that university diversity bureaucracies can do to the scholarly values of liberal education. Diversity and inclusion are of course good things, but neither value is advanced by partisanship and censorship.
Dean Martinez hinted at this problem:
The university's commitment to diversity, equity, and inclusion can and should be implemented in ways that are consistent with its commitment to academic freedom and free speech. See Marc Tessier-Lavigne and Persis Drell, Advancing free speech and inclusion, (Nov. 11, 2017), https://quadblog.stanford.edu/2017/11/07/advancing-free-speech-andinclusion/. Indeed, for the reasons explained below, I believe that the commitment to diversity, equity, and inclusion actually means that we must protect free expression of all views.
Again, how could it be that well-trained DEI Deans at elite institutions can have such a fundamentally flawed vision of the purpose of an academic institution? And what are these DEI staff teaching law students? Indeed, Steinbach doubled-down on her position in the WSJ:
Diversity, equity and inclusion plans must have clear goals that lead to greater inclusion and belonging for all community members. How we strike a balance between free speech and diversity, equity and inclusion is worthy of serious, thoughtful and civil discussion. Free speech and diversity, equity and inclusion are means to an end, and one that I think many people can actually agree on: to live in a country with liberty and justice for all its people.
Compare what Martinez said with what Steinbach said. Martinez wrote from a classical liberal perspective: DEI "actually means that we must protect free expression of all views." Free expression is the ends, and DEI is one of many means of getting there. Steinbach wrote from a utilitarian perspective: free speech and DEI are both "means to an end" to achieve "liberty and justice." For Martinez, free speech prevails over DEI. For Steinbach, free speech and DEI are both mere tools that are subordinate to some amorphous concept of "liberty and justice" (presumably defined by progressives like Steinbach). And when free speech does not lead to DEI, then the free speech must be subordinated. Steinbach made this point explicitly. She questioned whether the harm from Duncan's speech justified his presence. In other words, where the juice is not worth the squeeze, you don't squeeze. Steinbach is unrepentant, and preaching from the DEI gospel. Again, I presume many DEI deans who read the Wall Street Journal were quietly snapping along.
Martinez, thankfully, rejects the notion that the University can even agree on what "liberty and justice" means. The University should avoid taking any institutional positions:
At the same time, I want to set expectations clearly going forward: our commitment to diversity, equity, and inclusion is not going to take the form of having the school administration announce institutional positions on a wide range of current social and political issues, make frequent institutional statements about current news events, or exclude or condemn speakers who hold views on social and political issues with whom some or even many in our community disagree. I believe that focus on these types of actions as the hallmark of an "inclusive" environment can lead to creating and enforcing an institutional orthodoxy that is not only at odds with our core commitment to academic freedom, but also that would create an echo chamber that ill prepares students to go out into and act as effective advocates in a society that disagrees about many important issues.
I could not agree more. Universities do not pursue any orthodoxies like "liberty and justice," however defined. Universities provide a place in which ideas can flourish. Moreover, most of these statements are, at best virtue signaling, and at worst, embrace a substantive position on a matter of public debate. The university must remain neutral in the battle of ideas. All juice is worth the squeeze.
Higher education faces an inflection point. Stanford is just the cardinal in the coal mine. Deans must choose whether to allow DEI to erect their own fiefdoms that will tower over a school's academic mission. Or Deans, like Martinez, can restore the proper balance of powers between academic departments.
In a future writing, I will offer some suggestions of how universities can confine the jurisdiction of DEI officers to prevent a repeat of what happened at Stanford. A preview: faculty who care about academic inquiry will have to get their hands dirty. This juice will be worth the squeeze.
