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Wednesday, April 12, 2023

Why Does DEI Make Good Free Speech Advocates Go Bad?

Keith Whittington, Princeton professor and chief of the Academic Freedom Alliance, has been reviewing various state-level attacks on academic freedom. Today he visits Texas, which has a trio of bills under consideration that all put public universities under their sights in various ways. Whittington is generally skeptical of all these proposals, but he does have kind things to say about portions of one of the proposed laws, SB17.

That bill would shift greater authority to the university boards of trustees, would prohibit the use of diversity statements in faculty hiring, and would abolish the activities of diversity, equity and inclusion administrators. A similar prohibition was adopted as an appropriation rider in the House. Violating the DEI ban can be a cause for terminating even tenured members of the faculty. The bill would also require state universities to adopt as part of their mission statements a set of pledges regarding intellectual freedom, including a commitment to "viewpoint diversity" and "institutional neutrality."

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From my perspective, the DEI ban and the institutional commitments are all to the good in enhancing the intellectual freedom on college campuses. The potential penalty for faculty who violate the DEI ban is worrisome, however, in both its chilling effect and its unjustified expansion of the bases upon which tenured professors can be terminated.

(Whittington also raises the alarm about shifting review power to the boards of trustees).

I want to flag Whittington's claim that the DEI ban is "all to the good" (even if, perhaps, too draconian in its enforcement mechanisms). It is not all to the good! It is very bad, and pointedly, it's very bad for reasons that Whittington identifies elsewhere in his post! This is yet another example of how the anti-DEI obsession amongst some "free speech" advocates has caused them to endorse policies and practices whose impingement on academic freedom would otherwise be nakedly obvious.

Among the things prohibited by this part of SB17, universities would be prohibited from soliciting or acting on any statement regarding an applicants "views on, experience with, or past or planned contributions to efforts involving diversity, equity, and inclusion, marginalized groups, antiracism, social justice, or views on or experience with race, color, ethnicity, national origin, or other immutable characteristics."

As a constitutional law professor whose work focuses significantly on questions of race, equity, inclusion, and so on, I shudder to think how an interview with me would go if the hiring committee were forbidden from asking about or considering my views on these topics. What, exactly, would we talk about -- the Dodgers? And while for someone in my shoes there is an obvious relationship between the banned topics and my disciplinary work, there are also areas where this is germane for professors of any academic affiliation -- most notably, in discussions of pedagogy. As I've written before, 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?" But SB17 strongly suggests that such concerns would, in fact, be legally proscribed.*

This is why I've written before regarding how anti-DEI bans are inevitably academic freedom trainwrecks. They're justified as checks against "compelled speech", but in practice they serve (and intentionally so) as massive chills on important facets of academic conversation. And the thing is, Whittington is well aware of the mechanics here -- he explains them ably in his critique of the companion SB16 bill. SB16 purports to forbid professors from "compel[ling] or attempt[ing] to compel" an enrolled student "to adopt a belief that any race, sex, or ethnicity or social, political, or religious belief is inherently superior to any other race, sex, ethnicity, or belief." Here's what Whittington says to that proposal:

It would likely chill classroom speech as faculty try to avoid any appearance of compelling belief on various sensitive topics routinely discussed in college classrooms. To the extent that the law simply codifies the constitutional prohibition on compelled speech, then it accomplishes little other than attempting to chill speech. To the extent that it might be interpreted to prohibit professors from advocating certain views in the classroom or requiring students to correctly describe and analyze such views in their coursework, then it will invite controversy. Not hard to imagine students complaining that a professor attempted to compel them to believe that, for example capitalism is superior to socialism by assigning them to write an essay with that premise.

Emphasis added, because that's the rub. If it's just an attempt to forbid compelled speech -- someone being forced to swear allegiance to a particular ideological framework -- it's redundant except for its knock-on chilling effect. But of course, the law isn't just about the specific "compelled speech" case -- it is designed to and inevitably will curtail very normal academic conversations.

Yet this exact same problem besets the DEI ban. If it's just about forbidding a requirement that prospective professors genuflect before a graven image of Derrick Bell as part of the application process, then it's unnecessary and only serves to create an additional halo of chilling effect. But SB17's DEI ban doesn't "just" do that; it by its terms stretches to cover any "statement" on matters of diversity, equity, inclusion, race, or other like topics -- topics that a hiring committee regularly and appropriately should be considering. For example, as someone who has served on a hiring committee, I very much want to be able to inquire into whether (to pick a recent example) a candidate openly believes Jews should never be hired again. It is important and good that a person like that not get hired; I absolutely can and should be giving preference to candidates who do not take that sort of view! And more broadly, we can and should be able to consider and debate over whether given candidates will do a good a job facilitating an effective academic and pedagogical environment for diverse communities. That's normal, and that's salutary, and that would likely be either forbidden or at least significantly chilled by application of Texas' proposed DEI ban.

Again, the logic for why the DEI ban is problematic is contained in Whittington's own post. He should be able to spot it, and yet it says that the provision (absent the penalty provisions) is "all to the good." FIRE went through the same thing a few weeks ago, drafting a trainwreck proposal against DEI statements that -- were it on any other topic -- FIRE would be screaming bloody murder about the obvious academic freedom impingements. Something about the DEI issue is corrupting free speech advocates, causing them endorse obvious violations and ignore flagrant threats. They're going to need to address this blindspot sooner rather than later, because this fever doesn't seem to be going away.

* SB17 has a provision that exempts requests for information regarding "pedagogical approaches or experience with students with learning disabilities." That narrow and highly specific carveout strongly suggests that inquiring generally how a prospective professor would seek to facilitate an effective and inclusive classroom environment for students of diverse backgrounds would now be verboten.

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