FIRE Statement on the Use of Diversity, Equity, and Inclusion Criteria in Faculty Hiring and Evaluation | The Foundation for Individual Rights and Expression

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FIRE Statement on the Use of Diversity, Equity, and Inclusion Criteria in Faculty Hiring and Evaluation

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  • The issue: Many colleges and universities require or invite current and/or prospective faculty to demonstrate their commitment to diversity, equity, and inclusion (DEI), often through a written statement that factors into hiring, reappointment, evaluation, promotion, or tenure decisions.
  • The concerns: Vague or ideologically motivated DEI statement policies can too easily function as litmus tests for adherence to prevailing ideological views on DEI, penalize faculty for holding dissenting opinions on matters of public concern, and “cast a pall of orthodoxy” over the campus.

FIRE is concerned by the proliferation of university policies requiring current or prospective faculty to be evaluated, in part, by their demonstrated commitment to “diversity, equity, and inclusion.” A recent AAUP survey of hundreds of colleges and universities found that more than one-fifth of them include DEI criteria in tenure standards, including 45.6% of large institutions (those with more than 5,000 students). Of the institutions that do not include DEI criteria for tenure, nearly half indicated they are considering adding such criteria in the future. A 2021 American Enterprise Institute survey of academic job postings found that 19% required DEI statements, and elite institutions were more likely to require them.

Over the past few years, FIRE has heard from hundreds of faculty members concerned that their university’s DEI statement policy violates the First Amendment, principles of academic freedom, or both. 

To be sure, colleges and universities have an interest in their faculty being effective teachers who create welcoming and dynamic learning environments and are invested in the success of every one of their students, regardless of identity or background. But DEI statement policies often go beyond these reasonable expectations by using politically loaded terms and frameworks to inquire about faculty members’ views, affiliations, or activities. 

In many cases, these policies threaten to restrict employment or advancement opportunities for faculty who dissent from the prevailing consensus on DEI-related issues of public and academic interest. These policies may even negatively impact faculty who broadly agree with their institution’s DEI values but disagree on some of the specifics, or who simply cherish the right to speak without compulsion. 

The First Amendment prohibits public universities from compelling faculty to assent to specific ideological views or to embed those views in academic activities. While private universities are not bound by the First Amendment, they generally make commitments to free speech and academic freedom that similarly preclude enforcement of any political, moral, or ideological dogma. Such colleges and universities educate and employ the overwhelming majority of America’s students and faculty members, and this document is intended to address DEI policies at those institutions. 

The First Amendment prohibits public universities from compelling faculty to assent to specific ideological views. 

Nearly 80 years ago, the Supreme Court of the United States held that “no official, high or petty” within the government has the authority to “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Not long after, the Court overturned laws targeting faculty members with “seditious” views, recognizing our country is “deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned.” 

When government entities, including public universities, wish to “disseminate an ideology, no matter how acceptable to some, such interest cannot outweigh an individual’s First Amendment right to avoid becoming the courier for such message.” Rules that force an individual “to declare a belief” and “to utter what is not in his mind” serve to “strangle the free mind at its source.”

The law hasn’t changed. But adverse consequences for those who hold or voice dissenting, minority, or simply unpopular opinions are increasingly common on campus.

Institutions of higher education do not need more ways to enforce conformity 

Since 2015, FIRE has seen over 600 attempts to sanction scholars for protected speech, and most of those have been successful. The frequency of these incidents is accelerating: More than half have occured since 2020. For some professors, even tenure is no longer a reliable shield against encroachments on academic freedom. In the last several years, nearly three dozen tenured professors have been fired for their protected expression, scholarship, or pedagogy.

An institution dedicated to advancing the frontiers of human knowledge should recognize the fallibility of the human mind and promote the value of seriously entertaining the possibility of being wrong.

Unfortunately, too many institutions already have mechanisms for enforcing conformity. While the percentage of universities maintaining speech codes on campus has declined, 86% of institutions FIRE recently surveyed still maintain policies that either clearly and substantially restrict speech or that can reasonably be interpreted to suppress protected speech. Meanwhile, hundreds of colleges and universities maintain bias reporting systems that encourage students to anonymously report peers or faculty for offensive-but-protected speech. Many hold training programs that compel speech, attempt to embed ideological bias in research review, and employ university leaders who commonly use their bully pulpit to simply reiterate whatever political opinions are popular on campus — opinions further reinforced by departmental statements on issues often unrelated to their academic focus. 

Under these circumstances, the last thing universities need is yet another tool for ensuring faculty or students embrace a preordained consensus on issues of social and political significance. Yet, apparently not content with all of the existing hurdles they place before faculty with minority views, more and more universities are imposing politicized DEI statement requirements. 

While the phrase “diversity, equity, and inclusion” may sound innocuous or uncontroversial, in practice it is laden with political and ideological connotations that make it a matter of lively debate. For instance, the term “equity” is often differentiated from the idea of “equality” or “equal treatment.” One need not look hard to find a wealth of different perspectives on this issue. Equity, in one supporter’s view, “implies much more than equal opportunity; it entails equality of resources, ideas, respect and outcomes,” and extends to pedagogical reforms like “decolonizing the curriculum.” Another proponent asserts that equity exists when two or more groups “are standing on a relatively equal footing” — as in scenarios in which relatively equal percentages of different racial groups live in owner-occupied homes — and racial discrimination is justified when it “[creates] equity.” Still, others decry this view and push for “equal treatment,” arguing that proponents of equity have wrongly decided that “what’s fair is whatever it takes to produce matching results for disparate groups.”

While universities may choose to take an institutional position on this issue, they have no business ordering their faculty to support it.

If a university is to require faculty to write a statement demonstrating adherence to any set of values (and it should not), one might at least expect the selection of values that undergird the central purpose of an institution of higher learning: academic freedom, critical thinking, broadmindedness, or intellectual humility. An institution dedicated to advancing the frontiers of human knowledge should recognize the fallibility of the human mind and promote the value of seriously entertaining the possibility of being wrong. Instead, many DEI statement mandates do the opposite, closing the debate on issues of societal importance. They require faculty to endorse or apply specific positions on race, gender, and related issues as if they are beyond question, and as if a professor who disputes them is ipso facto incompetent. 

Academic freedom must remain paramount

FIRE strongly objects to attempts to ban the teaching of certain viewpoints in college classrooms. Requirements that faculty endorse particular views are equally impermissible.

These principles protect individuals across the political spectrum. Just as universities cannot require faculty to endorse a certain conception of DEI, they cannot require faculty to affirm the importance of “colorblindness,” “patriotism,” or “individualism,” or to demonstrate involvement in organizations or activities that promote such values. At a university dedicated to freedom of thought, none of these ideas should be immune from scrutiny and disagreement. Proponents of DEI statement mandates should consider how they would react to being compelled, on pain of career impairment or even job loss, to write a statement expressing support for ideas or values they oppose. 

Without a doubt, colleges and universities have both the authority and obligation to ensure their campuses are free from unlawful discrimination on the basis of race, sex, or other protected characteristics. And of course, a university department may create a position for faculty with teaching or research interests involving DEI scholarship or research. But the typical DEI statement policy is not concerned merely with a faculty member’s relevant scholarship or the laudable goal of ensuring faculty refrain from discrimination or work toward the success of all of their students, regardless of identity. Many policies invade faculty members’ freedom of conscience, prying into their private beliefs on matters of public concern. They compel faculty to express or demonstrate commitment to the university’s viewpoints or to conform their pedagogy, research, and/or service activities to specific ideological perspectives. Others are so vague they raise serious concerns that the lack of sufficient guardrails will allow improper viewpoint discrimination to creep into the evaluation process. 

These policies are antithetical to the radical open-mindedness inherent in our system of knowledge-development, which scholar Jonathan Rauch calls “liberal science.”

But a university should not selectively recognize only activities that align with particular ideological perspectives or conclusions.

Moreover, in FIRE’s experience, DEI statement policies generally are not created by faculty — who, according to the principle of academic freedom, are the proper judges of their disciplinary peers’ academic qualifications — or tailored to particular positions or disciplines. Rather, DEI statement policies are commonly authored and imposed by administrators, and they often apply globally to an entire college or university.

But regardless of a DEI statement policy’s origin, neither public universities bound by the First Amendment nor private universities bound by their own commitments to free expression and academic freedom may discriminate against current or prospective faculty for holding ideologically disfavored views.

Not every university initiative to recognize faculty members’ DEI activities necessarily violates principles of free expression or academic freedom. But the risk is significant and serious. Universities implementing these policies must proceed with the utmost caution to ensure that such policies are not used as tools to enforce ideological conformity or limit academic freedom, which would jeopardize both faculty members’ rights and the integrity of higher education.

As the American Association of University Professors observed over a century ago in its landmark 1915 Declaration of Principles on Academic Freedom and Academic Tenure:

To the degree that professional scholars, in the formation and promulgation of their opinions, are, or by the character of their tenure appear to be, subject to any motive other than their own scientific conscience and a desire for the respect of their fellow experts, to that degree the university teaching profession is corrupted; its proper influence upon public opinion is diminished and vitiated; and society at large fails to get from its scholars, in an unadulterated form, the peculiar and necessary service which it is the office of the professional scholar to furnish.

It is not the role of the university to harden a select set of views into incontrovertible dogmas, short-circuiting the current of intellectual inquiry. Academia is a place to test ideas, not scholars’ loyalty to them. 

Some signs a DEI statement policy is incompatible with free expression and academic freedom

While a fact-intensive analysis of the specific language of a particular DEI statement policy is usually necessary to determine if it is unconstitutional or violates an institution’s promises of free expression and academic freedom, there are some telltale signs of an illiberal policy.

  • Mandatory participation: When the statements are mandatory instead of optional, they are more likely to impermissibly compel speech. Even optional statements, however, leave room to reward participation or penalize non-participation and are susceptible to abuse as ideological litmus tests that inhibit career advancement.
  • Required affirmation of specific, politicized DEI values: A policy that compels faculty to affirm or disavow a set of beliefs echoes the unconstitutional loyalty oaths of the McCarthy era. DEI statement policies often require faculty to discuss and demonstrate their commitment to a particular ideological perspective of DEI and to embrace specific beliefs related to race, gender, or other identity characteristics. These requirements are particularly out of place in disciplines that do not even study these issues. Policies frequently incorporate ideologically loaded terms and concepts that map onto contested political worldviews. As discussed, even the term “equity” engenders spirited political debate. Beyond that, FIRE has challenged a DEI statement policy that expressly penalizes faculty applicants who question the effectiveness of racial affinity groups or other DEI initiatives, and a proposed policy that would compel faculty to embed “anti-racist principles” in their curricula and to accept and apply ideas like “intersectionality” and “axes of oppression.” This is no more appropriate than would be McCarthyite demands for adherence to “patriotism,” “Americanism,” or the like.
  • Incorporation of ideological frameworks into teaching or research. Some policies selectively reward faculty who promote DEI-related views in their teaching or research. FIRE opposes any ideological restrictions on freedom in the classroom and on freedom of inquiry, whether they come in the form of rewards for intellectual conformity or penalties for dissent.
  • Vague terms: Other policies fail to define key terms or to set forth clear, specific criteria to constrain the discretion of hiring and review committees when they evaluate DEI statements. It is almost impossible to divorce DEI statements from political questions around topics like race and gender that are the subject of widespread disagreement. Absent clear, objective, viewpoint-neutral definitions and evaluation criteria, there is a heightened risk that DEI statements will function as a proxy for faculty members’ political beliefs, or that faculty will otherwise lose opportunities for hiring or advancement because they are insufficiently committed to their university’s stance on DEI.
  • Heavy administrative involvement: Frequently, administrators — rather than faculty within a particular discipline — develop and impose the policies. Blanket, university-wide policies are not tailored to a given department’s academic goals and are less likely to be the product of a bona fide academic judgment. Moreover, DEI statement policies are sometimes developed at the behest of committees with ideological aims, and DEI administrators may be substantially involved in the evaluation process. Judgments of scholarly and pedagogical competence should be made first and foremost by a faculty member’s disciplinary peers. Even faculty, however, must not erect barriers to their colleagues’ academic freedom. For instance, in 2021, a Cornell University Faculty Senate working group proposed a new DEI statement mandate as part of an effort to “effectively require[] faculty to understand that structural racism, colonialism, and injustice, and their current manifestations have a historical and relational basis.”
  • Use in prescreening applicants: Some universities go as far as screening applicants based on their DEI statements alone, immediately weeding out those who dissent from the university’s views on DEI without holistically evaluating their academic qualifications. The violation of academic freedom is all the more blatant if this initial review is conducted by DEI staff or other administrators.

Can colleges and universities properly consider DEI when evaluating faculty or faculty applicants?

While compelling faculty to affirm certain viewpoints is never acceptable, not every attempt to consider a prospective or current faculty member’s DEI-related efforts is necessarily objectionable. But universities must carefully craft policies to ensure they don’t operate as litmus tests, and universities should largely leave the task of evaluating faculty and faculty candidates to their disciplinary peers, not administrators.

A university’s mission to produce and disseminate knowledge requires ample room for faculty to think and speak freely.

Again, universities naturally may evaluate faculty members’ effectiveness at reaching and helping a broad range of students academically. And there is nothing wrong with institutions recognizing faculty members’ relevant teaching, research, and service activities and accomplishments that might be characterized as DEI contributions. Faculty members who, for example, make special efforts to mentor international students, create research opportunities for underrepresented minority students, develop pedagogical practices to help accommodate disabled students, or hold office hours at a time that accommodates students with families can certainly have those activities considered and recognized in their reviews. 

But a university should not selectively recognize only activities that align with particular ideological perspectives or conclusions: For instance, it would not be proper for a university to recognize rigorous research that shows benefits of affirmative action, while refusing to give credit for equally well-founded research suggesting that affirmative action causes more harm than good, or vice-versa. If universities are going to invoke DEI in evaluations, they should construe it broadly to cover a very wide range of activities rather than a subset of activities that fit within predetermined ideological boundaries. Universities would do well to expressly include diversity of thought and perspective within their definition of “diversity” and define “inclusion” to extend to tolerance of ideological diversity and support for intellectual openness and the free exchange of ideas.

Further, universities should make clear that listing any academic DEI activities is entirely voluntary, answers will be evaluated in a viewpoint-neutral manner, and no faculty will be rewarded or penalized for supporting or deviating from university-approved viewpoints. Requiring a separate narrative DEI statement, which inevitably will be judged against other faculty members’ statements, pressures faculty to enthusiastically endorse the university’s stance on DEI, even if the university does not explicitly instruct them to do so. Ideally, universities would not even solicit voluntary statements, which, even if truly optional, may feed a perception that it is mandatory in practice and leave faculty members who decline to submit one conspicuous in their refusal. Institutions should be extremely careful to avoid even the perception of bias in the evaluation process, which may lead current or prospective faculty to simply engage in activities or write statements that speak to the perceived ideological aims of hiring and evaluation committees, raising concerns about self-censorship, compelled speech, and infringements on academic freedom.

It should be sufficient for faculty to voluntarily list any of their teaching, research, or service activities or accomplishments that happen to intersect with DEI the same way they would any other academic activities related to their scholarly interests.

Universities can promote DEI while upholding free expression

FIRE recognizes that universities may pursue certain aims related to DEI — but only as long as those efforts do not conflict with freedom of speech or academic freedom. Universities seeking to advance DEI must do so in a manner that respects the expressive rights of faculty and students. 

Universities have a variety of ways to advance their visions of DEI without infringing their constituents’ individual rights.

This is not a zero-sum game. The ideals of free speech and diversity/inclusivity need not live in tension; in fact, the latter depends on the former. To paraphrase former congressman and civil rights leader John Lewis, without freedom of speech and the right to dissent, any movement for genuine diversity and inclusion is a bird without wings. The most marginalized voices are those most in need of free speech protections. When universities uphold expressive freedom, they allow a diversity of voices and perspectives to flourish and create space for dialogue across lines of identity and ideology.  

Universities have a variety of ways to advance their visions of DEI without infringing their constituents’ individual rights. They can promote these values through institutional statements, community events, administrative outreach, support services, and other non-mandatory programs and initiatives that ideally further a robust conception of diversity and inclusion — one that encompasses diversity of perspective, intellectual freedom, inquisitiveness, tolerance of dissent, open-mindedness, and epistemic humility.

A university’s mission to produce and disseminate knowledge requires ample room for faculty to think and speak freely. Scholars must be judged on academic merit, not on whether they profess their faith in university-approved viewpoints. FIRE will continue to combat any institutional efforts to leverage DEI to purge the campus of dissenting views on issues of public and academic concern.