WU: Taking DEI to Court

While the cabal of far-left ideologues and interest groups complain that America’s zealous pursuit of diversity, equity and inclusion (DEI) is not far-reaching or radical enough, a coalition of oppositional forces are pushing back against this dominant narrative.

Public interest law firms, advocates, scholars, and activists are increasingly utilizing litigation to challenge the incorporation of DEI-themed requirements in schools, communities, and workplaces. In August, six professors from the California Community Colleges (CCC) system, represented by the Foundation for Individual Rights and Expression (FIRE), sued their employer for compelling them to make formal commitments to DEI as a requirement of the faculty performance and tenure review process.

Since March 2022, the CCC system, the largest system of higher education in the U.S. and the third largest in the world, has implemented a new set of regulatory guidelines stylized as “diversity, equity, inclusion, and accessibility (DEIA).” The proposal requires its 91,000+ employees to help contribute to the system’s vision to become an “anti-racist institution” and demonstrate DEIA competencies in order to obtain satisfactory performance reviews, tenure, or promotion. Groups like FIRE, the Californians for Equal Rights Foundation and the Pacific Legal Foundation opposed the plan during a public hearing process, but the CCC Governing Board voted to approve it anyways. Now, its own faculty members are revolting against these ideologically driven guidelines that mandate them to examine, endorse, and teach “intersectionality of social identities,” “multiple axes of oppression,” “minoritize(d) subordination,” and “equitable student outcomes.”

Several compelling cases can be made to support the rising array of legal challenges against DEI.

The Case for Free Speech

According to Reedly College professor Bill Blanken, one of the six plaintiffs in the lawsuit against the CCC, working DEI into curriculum and classroom teaching is a ludicrous idea:

I am a professor of chemistry. How am I supposed to incorporate DEI into my classroom instruction? What’s the ‘anti-racist’ perspective on the atomic mass of boron?

Not only do many academics in sciences disdain infusing ideology into their pedagogical practices, those in humanities and arts should also be alarmed about the effects of kowtowing to the DEI narrative on academic freedom. Loren Palsgaard, a professor of English at Madera Community College and another plaintiff in the suit, argues against her employer’s classification of hearing uncomfortable ideas as “curricular trauma.” Palsgaard argues that “teaching all sides of an issue,” something discouraged by the DEI mandate, defines education.

There seems to be an emerging consensus in the academia on the threats posed by the DEI political litmus test to academic freedom. A 2022 American Association of University Professors (AAUP) survey found that imposing DEI requirements for tenure was an increasingly popular practice, with 45.6 percent of large education institutions and about 15 percent of medium- and small-sized institutions reporting doing so. More alarmingly, 53.5 percent of the schools surveyed have replaced tenure positions with adjunct faculty positions, many of which are contingent upon the applicants’ willingness to demonstrate support for campus orthodoxies.

An Inside Higher Ed analysis, in spite of the platform’s left-leaning outlook on higher education, acknowledges that faculty contracts and tenure reviews contingent upon DEI-themed conformation encourage self-censorship and chill free speech. An article by the center-right American Enterprise Institute (AEI) explains that mandatory DEI statements in higher education “threaten to restrict employment or advancement opportunities for scholars who dissent from the prevailing consensus on DEI-related issues of public and academic interest.” Simply put, forcing professors to embrace politically loaded terms and frameworks in these statements is antithetical to “a free market competition of ideas, which is the hallmark of our nation’s collegiate system.”

The Case for Equal Rights

After being fired from her DEI position at the De Anza Community College, Tabia Lee took her former employer to court, claiming that the school created a hostile working environment “illegally targeting White people on the basis of race” and falsely accusing her of “whitesplaining.” When Lee, a black female, refused to conduct DEI through the lens of critical social justice and pointed out the importance of equality over equity, she was terminated from the job.

Outside of academia, the American Alliance for Equal Rights is suing two international law firms for hosting discriminatory diversity workshops. The first firm, Morrison and Foerster LLP, has a fellowship program named “the Keith Wetmore 1L Fellowship for Excellence, Diversity and Inclusion Program,” which offers law students from underrepresented groups $25,000 over a two-year period. The second company, Perkins Coie, has two diversity fellowship programs, with one providing a $15,000 stipend plus a $10,000 award to first-year law students “who are members of groups historically underrepresented” and the other giving away a $25,000 summer fellowship to second-year law students from underrepresented groups. “Students of color, students who identify as LGBTQ+ and students with disabilities are encouraged to apply.”

DEI-themed programming oftentimes requires giving preferential treatment to target populations in order to boost proportional representation or compensate for past marginalization. Unequal and discriminatory treatment of those outside the target groups follows as a natural result. In the summer of 2022, a DEI consultancy named “The Root of Us” marketed a “Racial-Healing Circle” training program, which featured conversations on racism, racial identities, master narrative, privilege, microaggressions, white rage, and white fatigue. To integrate reparations into the program, the consultancy charged a $30 fixed weekly entry fee to white participants and a $0-$30 donation entry fee for BBIPOC (Black, Brown, indigenous people, people of color) participants. While this particular case involving a private company and willing participants may not be legally actionable, it is illustrative of the inherent incompatibility between DEI as currently practiced and equal treatment.

The Case for Merit

Last but not least, the issue of merit must be considered. How can colleges and universities and businesses accomplish their DEI goals and simultaneously uphold academic or professional standards? Do they compromise or even forego meritocracy in order to attract, recruit, and reward “more diverse” applicants?

In May 2023, Dr. J.D. Haltigan, a developmental psychologist, sued the University of California system for violating his First Amendment rights by mandating him to submit a DEI statement in his application for a faculty position at UC Santa Cruz. The lawsuit argues that the university’s DEI declaration requirement in faculty hiring, a political litmus test, not only harms academic freedom, but also effectively displaces “scholarly rigor, objectivity, and originality.” Due to his unwillingness to comply with the ideological test and his expressed commitment to “colorblind inclusivity, viewpoint diversity, merit-based evaluation, and […] outreach to underrepresented groups in higher education,” Dr. Haltigan was not considered for employment. His expertise and qualifications in child and adolescent mental and physical illness were overlooked.

The decisive left political bias in higher education has also influenced national security. The U.S. Naval Academy, where our future Navy and Marine Corps officers are trained, published a Diversity and Inclusion Strategic Plan in 2021, in which the nation’s premier institution for military education pledges a revamping of its recruiting, training, and policies to foster equitable opportunity. One of the strategic goals for the academy to “improve inclusivity and fairness in all aspects of the midshipmen experiences,” for instance, requires addressing implicit racial bias and increasing representation of minority academic staff. The plan is criticized by an Academy graduate:

This vision, if achieved, will erode the competency of future officers and imperil our national security. […] By giving priority to DEI-specific learning and training, USNA will necessarily degrade traditional facets of course development and pedagogy. This will lead to politicized content devoid of the rigor necessary to develop thinking officers who may one day lead sailors and Marines in combat.

The problem of subjugating free speech, equal treatment, and merit under the DEI concept is not dissipating, in spite of its legal precariousness. George R. La Noue, Emeritus Professor of Public Policy and Political Science at the University of Maryland, observes:

DEI is now a ubiquitous mantra across the country, adopted by corporations, professional associations, scientific funders, publication reviewers, museum collections, award ceremonies, theatrical productions, movie casts and plots, orchestras, and their repertoires, among many other industries and institutions.

DEI’s pervasiveness is especially acute in higher education. A 2021 AEI report by Robert Maranto and James Paul found that 34 percent of elite universities required diversity statements from applicants and 68 percent of all surveyed colleges included the terms “diversity” or “diverse” in some fashion. Another survey by the Chronicle of Higher Education discovered that 679 out of 892 faculty candidates for life sciences positions at UC Berkeley were rejected for failing initial DEI metrics.

But the cracks are starting to appear in the DEI leviathan, as more lawsuits are being filed in federal and state courts. Some state collegiate systems, such as the University of Missouri, the University of North Carolina, all three public universities in Iowa, and the University of Georgia, no longer require DEI statements or diversity essays for job applicants.

We must keep up the pressure to ensure equality for all.

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