Thursday, February 16, 2023

FIRE's Proposed Anti-DEI Legislation is an Academic Freedom Trainwreck

FIRE (the Foundation for Individual Rights and Expression -- formerly Foundation for Individual Rights in Education) is a controversial organization that works in a controversial area. By and large, though, I'm a FIRE defender -- I tend to think they get more right than wrong, and strive to be genuinely evenhanded in dealing with threats to academic freedom on campus.

But this makes it all the more striking to read their proposed model legislation targeting "DEI statements" at public universities. It is nothing short of an academic freedom trainwreck -- the sort of vague censorial tool that in most contexts FIRE would be blasting the alarm over. That it does not just endorse but drafted this disaster show is deeply worrisome and disconcerting.

I've written before trying to tease out the connection between DEI statements and (threats to) academic freedom before, which is far more complicated than groups like FIRE are letting on. The core problem is that while I absolutely agree that DEI statements can be used in abusive ways to create an ideological monoculture, it is actually very difficult to distinguish such statements from other arenas in which academic actors are asked to make normative assessments of their peers (for example, regarding teaching or scholarship) -- arenas which also are prone to ideological abuse. Almost inevitably, an "anti-DEI" rule that tries to have any teeth will put at risk basic practices of academic evaluation, and will do so regardless of any disclaimers to the contrary. This risk is only accentuated by the impossibly vague language that purports to distinguish licit versus illicit appraisals. And university bureaucrats who want to avoid potentially crippling financial liability (we'll get to that in a moment) are going to be very defensive regarding what is and is not permitted, inviting exactly the sort of administrative interference in academic affairs that FIRE purports to oppose.

When it comes to attempts to regulate DEI initiatives, my basic framework for evaluation is this. I assume that it cannot be the case that university actors are forbidden from caring about questions like "will the job candidate do a good job creating an equitable and inclusive environment for our diverse academic community" (if we are "forbidden from caring" about that, then the oppressive orthodoxy of the anti-DEI push is beyond dispute). So, assuming we're not "forbidden from caring", the question becomes "how can we, consistent with the anti-DEI regulation, permissibly elicit information to make an evaluation on that question?" And the subsidiary to that question is "what will the university or government bureaucrat in charge of compliance permit us to do to elicit information to make an evaluation on that question?" The former is a textual inquiry; the latter gets to the chilling effect of defensive bureaucracies seeking to avoid potentially millions in financial penalties. And for FIRE's anti-DEI legislation, the answers to these questions seem to be (a) I have no idea and (b) virtually nothing.

The core practice FIRE targets in its legislation are requirements that academic community members or job candidates "pledg[e] allegiance to or mak[e] a statement of personal support for or opposition to any political ideology or movement, including a pledge or statement regarding diversity, equity, inclusion, patriotism, or related topics." In addition, the law would forbid any institution from "request[ing] or requir[ing] any such pledge or statement from an applicant or faculty member" (notice that this would seemingly apply to interviews as well -- I could not ask a question that "requests" the candidate give a "statement" regarding their DEI-related practices).

Right from the outset, this is impossibly vague. Academia is, of course, beset with normative controversies. Some are very specific questions of disciplinary dispute ("Is originalism the best way to interpret the Constitution?"). But many are broad questions of academic mission. "Should university education be primarily vocational or academic in focus?" "What is the best way that professors can create a supportive learning environment for their students?" "What do you hope students will get out of your classes?"

These questions are contested, and often politically contested. For example, on university education as academic versus vocational, many conservatives contend that universities focus too heavily on hoity-toity theory and should instead concentrate on disciplines which prepare students for specific workplace jobs; liberals, by contrast, are more comfortable with the classic model of a liberal arts education where the project of learning and development is valuable even if it doesn't directly translate into a specific career arc. Are all of these questions qualifying "political ideologies or movements" that fall under the ambit of the law? If not, what conceptually distinguishes those questions from the seemingly-similar question "How do we render our institution equitable and inclusive to the diverse populations that we serve?" If the questions are identical in form, then the only basis for specifically banning DEI related questions is ideological hostility -- an imposition of state orthodoxy under the guise of pluralism.

One possible response is that the question is fine so long as it actually is a question, and does not dictate a particular answer. So if you ask "What is the best way that professors can create a supportive learning environment for their students," there are multiple ways to answer that question; the question does not require a "statement of personal support for or opposition to" any particular ideology, since the respondent is free to take any stance they like on the subject. By contrast, it would be problematic to ask job candidates to explain why the Socratic Method simply is the best way to create a supportive learning environment, since now they are being compelled to express support for a particular (pedagogical) ideological view, and we should be open to a diversity of positions on that subject.

Problem #1 with this response is that it's not clear that the model legislation permits even this, insofar as asking them to take any position on "supportive learning environments" arguably requires them to issue a "statement of personal support for" the practices they endorse, and opposition to the ones they reject. The law is vague as to whether it prohibits requiring candidates to endorse one favored view on an "ideology", or if it prohibits requiring candidates to simply present a view on the subject.  At least for DEI, the text points towards the latter -- the language prohibits requirements of statements "regarding" DEI or "related topics." So even an open-ended question which expressly invites multiple potential answers is forbidden if the subject matter of the question "relates" to DEI.

Problem #2 is that, assuming the model legislation does permit questions like "What is the best way that professors can create a supportive learning environment for their students" because they're open-ended and don't demand avowal of a particular ideological view, then it's unclear what distinguishes that sort of question from standard DEI statement questions. Contrary to popular belief, most DEI prompts do not take the form "explain why Derrick Bell is the greatest political theorist since Rousseau" (and if that sort of request is all that's being covered here, the law scarcely does anything at all). They are far more likely to be framed as something like "How do you propose making your institution equitable and inclusive to the diverse populations that we serve?" That question, too, can be answered in a multitude of ways, and so is not different in kind from all the other normative appraisal questions that are endemic to academic life (and which also can elicit strong views and significant political controversies).

In order to carve out a distinction for why DEI is different, one might make one of two arguments. The first is that although the DEI question is nominally open-ended, everyone knows that there is but one "right answer", and that answer is kowtowing to the politically-correct standards of the moment. To begin, I'm dubious that this is true at least in the strong form (there might be some answers generally thought of as wrong, but there is not only one answer accepted as right). I'm also skeptical that a complaint that is fundamentally about abusive-applications can justify prohibiting such questions as a class. I'll concede that it's probably true that a job candidate whose views on a given issue of concern are sharply at odds with their employers will be at a disadvantage in the process; I'll even concede that a flat unwillingness to even consider a contrary view is deeply malformed practice.  But that a candidate who answers a DEI question in a fashion at odds with prevailing sentiments may be at a comparative disadvantage to others cannot alone suffice to establish that the statements are being "abused" or that the statement's usage is tantamount to a desire to create a monoculture. The core risk -- dissidents are disadvantaged -- is always present for any normatively-laden assessment, it is not distinct to DEI. It exists for the academic job candidate whose views on pedagogy or research sharply diverge from the departmental line, it exists for that matter for the corporate job candidate whose views on business expansion break from the general consensus held by the executive leadership. Across the board, for any normatively-laden question, dissident candidates are probably at a disadvantage. If that fact is enough to justify banning an interview question, then we have a lot of questions to ban.

The second potential argument for why DEI questions are materially different is that the DEI question, while admitting multiple answers, still encodes certain values inside the question's very structure as presuppositions which an answer must tacitly endorse -- i.e., that values like "equity" and "inclusiveness" are in fact values the university should pursue. Someone who rejects the very premise will struggle to answer the question. But this "distinction" actually isn't one; similar presuppositions are likely embedded into most normative questions. "What is the best way that professors can create a supportive learning environment for their students," embeds a presupposition that professors should try to create a supportive learning environment; a candidate who rejects that premise (thinking, perhaps, that students learn best in a trial-by-fire academic Sparta) would likely be at disadvantage. Again, the objection here would cover far, far too much.

And at this point we do start to see FIRE unsuccessfully try to cabin its law's reach, with a provision contending that "Nothing in this Act prohibits an institution from considering, in good faith, a candidate's scholarship, teaching, or subject-matter expertise in their given academic field." Great verbiage; no idea how it works in practice. Suppose I, in good faith, believe that demonstrating capacity to work with and respond to issues of diversity, equity, and inclusion, is part of assessing a candidate's teaching (or, for that matter, scholarship or subject-matter expertise). Can I ask about that? I have no idea, but I suspect the answer is "no", notwithstanding this supposed carve-out. FIRE is I suspect embedding a normative presupposition of its own: that issues "related" to DEI never are in good faith connected to valid considerations of academic merit. But this position is very much a contested one -- I'd contest it -- and certainly should not be encoded into state law as legally-compulsory orthodoxy. Again, 90 times out of 100 FIRE would be screaming bloody murder about this sort of thing -- they are a victim of their own blindspots that they don't see how they're promoting exactly the sort of legislation they normally abhor.

And speaking of legislation -- we shouldn't conclude without talking about penalties for a moment. They have several different penalty formulations, but they all coalesce around proposing six-figure monetary fines "for each violation of the act." That's gigantic on its own, and certainly will counsel extreme defensiveness by university bureaucrats and lawyers regarding what faculty are and are not permitted to say in job interviews or other like forums on matters of DEI. The potential for censorial chilling is massive. But worse, the law does not tell us what counts as a single violation. A college posts hiring announcements across a dozen different departments, requesting application materials which are later determined to include Forbidden Questions. Is that one violation, or twelve? Probably twelve, meaning that a $300,000 fine just got converted into a $3.6 million fine. Or worse -- each of those job postings (based on what I know of the academic market) will likely get 250 applications. And since the structure of the act suggests that each individual applicant is separately injured by unlawful consideration of the Forbidden Questions -- well, 250 x 12 x $300,000 = Nine Hundred Million Dollars in potential liability. Given that exposure, you better believe that the university bureaucracy is going to be policing faculty hiring and promotion practices with a very fine-toothed comb to root out anything that could even possibly represent eliciting a statement "relating" to DEI as interpreted by whatever lickspittle Ron DeSantis has put in charge of oversight. And I guarantee you that the ensuing bureaucratic regime will be far more onerous, oppressive, and censorial than anything currently happening at the behest of DEI offices.

FIRE knows better than this. It knows that the strong arm of state regulation and compulsion is almost inevitably toxic to the free and open exchange of ideas on campus, and it knows that academic freedom means that it must be the academics themselves -- not bureaucratic meddlers, not state legislatures, not politically-appointed boards -- who get to decide how to appraise their peers and the requirements of their discipline. Some academics do not think that matters of DEI are germane to that assessment. Many others think they are quite germane, not because we demand all candidates adhere to the One True Path, but because I absolutely want to know that any potential member of my academic institution has at least thought critically and comprehensively on the subject of how to best create an equitable and inclusive environment for a diverse educational community. That interest of mine is no different than my wanting to know that they have thought on how to create supportive learning environments, or wanting to know that they have thought on how the important normative questions that are part of many research agendas. In terms of what conclusions they draw from that critical consideration, I'm willing to hear a wide range -- I don't have a single answer in mind that is the only acceptable conclusion. But it doesn't matter, because under FIRE's view if I try to elicit information on the wrong subjects I risk bankrupting the university. That can only have a censorial and chilling effect.

It is not possible to declare the topic of DEI a Legally Forbidden Question without doing catastrophic damage to academic freedom, and the manner in which this law proposes to enforce its prohibitions will inevitably generate a nightmarish cavalcade of bureaucratic censorship. To be blunt: Academic departments are absolutely entitled, as part of their discretion to determine how to assess disciplinary, pedagogical, or service-based standards, to decide how and to what extent questions relating to DEI are germane to their evaluative appraisals. I do not doubt there are departments that will exercise their discretion in a fashion that I would not approve of; I do not doubt that are departments that will exercise it ways I find impossibly narrow-minded and abusive. It does not matter: any state legislation which limits that fundamental prerogative of academic independence and faculty self-governance is a limit on academic freedom -- full stop. Problems of abuse, to the extent they exist, are not validly delegated to state legislatures, and FIRE absolutely knows better than to argue otherwise.

This legislation is a stain on FIRE's reputation. They should withdraw it, and they should reflect on just what it is about this issue that caused them to so flagrantly abandon their normal principles regarding academic freedom. That an organization that has done so much to fight for academic freedom is poised to usher in this sort of censorial dystopia is fiendish irony. One hopes they backtrack before it becomes reality.

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