The Volokh Conspiracy

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New Column in ABA Journal: "Law schools face an inflection point with diversity, equity and inclusion"

"Universities and faculties in particular should take decisive action to prevent future Steinbachs and Eldiks from subverting the core principles of academic inquiry."


The reaction to my first ABA Journal column was, to my pleasant surprise, quite positive. I've heard from many current and former leaders in the organization who recognize the problem. I've also been invited to participate in a caucus looking to improve viewpoint diversity within the ABA. I'll report back on how that experience goes. And, also to my pleasant surprise, the ABA Journal allowed me to publish a second column.

The title of my column is Law schools face an inflection point with diversity, equity and inclusion. The piece was largely inspired by Judge Duncan's protest at Stanford, as well as the shenanigans at Yale Law School last year. I try to tie together why these debacles occurred with the rise of DEI on college campuses. I explain that DEI, as understood by officials at elite institutions, is inconsistent with the mission of higher education.

I offer five concrete suggestions of how deans and faculty can restore the proper balance of power between academic departments:

Universities and faculties in particular should take decisive action to prevent future Steinbachs and Eldiks from subverting the core principles of academic inquiry. At this inflection point, I propose a five-course action plan. First, every faculty should adopt, or reaffirm, a free speech policy that clearly spells out the university's commitment to a diversity of viewpoints. That policy also should delineate the consequences for heckling speakers. Students should be given a stern warning at orientation, so they are on clear notice about the rules.

Second, universities should restructure DEI departments. For starters, DEI deans should be tenured members of the faculty, rather than untenured staff. Faculty members generally have a long-term commitment to the institution and are attuned to how professors, students and other stakeholders approach sensitive issues. If the DEI dean is a faculty member, it is more likely that the faculty will have some visibility of the various DEI activities.

Moreover, the institution should define the jurisdiction of DEI departments and ensure that student-facing deans remain neutral and do not endorse any particular ideology. And yes, beliefs about "privilege," "anti-racism" and "unconscious bias" are not objective truths; they are contested ideologies. A law school administration could no more endorse critical race theory than it could endorse originalism. Educational institutions must remain neutral.

Third, faculty governance should assert oversight of DEI departments. For example, any DEI programming that students are required to attend should be approved by the faculty curriculum committee. Any diversity mandates imposed on hiring or admissions should be approved by the faculty committees on appointments and admissions. Academic institutions are faculty-governed. DEI should not issue edicts to the faculty; the faculty should provide approval to DEI.

Fourth, DEI staffers should be required to attend training on free speech and academic freedom. These classes can be provided by the constitutional law faculty or by outside groups like the Foundation for Individual Rights and Expression. The Duncan debacle should be a case study of what not to do. Employees like Steinbach who see free speech as subordinate to DEI values, should seek other employment. They have no place in an institution of higher education.

Fifth—and this one is key—universities should commit themselves to hiring ideologically-diverse professors. It is regrettable that Stanford has one right-of-center public law scholar—Judge McConnell. Yale has zero. Conservative students at Stanford and Yale are jurisprudential orphans. If more conservative scholars are hired, progressive students will invariably learn how to deal with those they disagree with—cross-cultural competency in modern lingo—and may realize that the divide between right and left isn't as large as they thought. Harvard, which has a handful of conservative faculty members, has unsurprisingly stayed out of the headlines. Other schools should follow the hiring practice started more than a decade ago by Dean Elena Kagan.

I look forward to engaging further on this topic. My next column, hopefully, will be about Supreme Court ethics.