Author’s Note: While I am a lawyer, I’m not your lawyer. Nothing in this article is intended to be legal advice from me, my firm, Minding the Campus, or anyone else. If you have a specific legal issue, I encourage you to contact counsel, particularly one familiar with the state law applicable to your situation.
Since I began writing about the cancer of wokeness currently metastasizing in American academia, I have been contacted by many concerned faculty members from coast to coast. They confirm, often with truly chilling examples, the dismal state of affairs—plainly illegal behavior is regularly implemented as official university policy, while critics are cowed by the threat of cancel culture. All of them are disgusted by what is happening at their institutions, and they ask the same question: what can we do?
Obviously, given the pervasiveness of the problem, turning this tide is going to take time and effort, through new legislation, lawsuits, pressure from alumni and donors, and more. And there are, of course, many institutions that are probably too far gone to ever be fixed. Nevertheless, there are some tactics that may be useful to concerned faculty, both to retard the implementation of particular woke practices and to create a record that may later prove devastating in a court of law.
Take, for example, the current push to implement “diversity, equity, and inclusion” initiatives in faculty hiring. While dressed in innocuous language, the real intent of such programs is obvious: to enshrine the worldview of people like Ibram Kendi, in which racial, ethnic, and sex discrimination—so long as it is wielded against the “oppressors”—is not only acceptable but imperative. In other words, discrimination against straight white guys (and in many disciplines, people of Asian descent) is a mandatory part of being “anti-racist.”
While this may be an accepted “truth” among the wokerati, as Judge James Ho has noted, implementing it in employment decisions is contrary to federal law. It is also against the laws of most states. University administrators know this: having an official policy of “we are only going to hire female or BIPOC candidates for particular positions” would get them roasted in a lawsuit. For public institutions in states like Texas and Florida, such policies would likely generate severe consequences from the state legislature.
As a result, universities routinely conceal what they are doing by describing their policies in vague, amorphous terms (e.g., the University of Texas at Austin’s mandate for training and hiring based on demonstrated “diversity skills,” as that term is interpreted by the university’s diversity commissars). The schools then implement these policies a la “the first rule of Fight Club”—don’t write down what you are actually doing.
Thus, we have examples like the one provided by Professor Dorian Abbot, where a hiring committee on which he served was told that the dean would not consider a faculty candidate recommended by the committee, regardless of ability, unless it was a woman or underrepresented minority. In such instances, administrators know that officially saying “no white guys” is a faux pas, and so they do it in a fashion that leaves no paper trail and gives them plausible deniability in the event of a lawsuit.
These practices also provide a means for resistance: make a record of the “wink wink, nudge nudge” decisions, and things may change. Often, the realization that a record is being made, and that such practices will not be kept under wraps, is sufficient to make the powers that be back off.
With that in mind, here are three proven tactics for resisting academic wokeness from within:
1. Confirm the Instructions in Writing
When, for example, you are told that “we are only going to hire/interview women/BIPOC/etc. for this position,” ask that such instructions be reflected in the committee or department’s minutes and/or records. If the administration obliges, you’ve now established what is likely a conclusive record of illegal discrimination by the institution.
If it resists (and it probably will), then ask why it is reluctant to put its own instructions in writing. (“If this is our policy, why are we afraid to record it?”)
If asked why you want the instructions documented, say “I am concerned about the legality of what we are doing/being told to do, and I want to make it clear that these are the administration’s instructions.” You might also want to point out that adopting the Kendian approach to employment decisions can result in multimillion-dollar judgments for Title VI violations.
If the administration still refuses, you can send your own confirmation e-mail to those involved, indicating that you are concerned about the legality of the instructions (which you should set out) and the reluctance of the committee and/or department to document it.
2. Ask for Legal Review
Faced with instructions (especially of the “wink wink, nudge nudge” variety) that appear facially illegal, suggest (in writing) that you have questions regarding their legality, and that, accordingly, the committee and/or administration should ask the university legal department for its views before proceeding.
This creates a dilemma. If your request is refused—particularly if the instructions are indeed illegal—the refusal becomes evidence that the institution is either uninterested in ensuring it is acting legally, or else is trying to conceal its illegal activities. This would be devastating in any future litigation or other investigation involving the institution. If, on the other hand, it does send the instructions to legal, then an attorney is going to have to analyze the issue. If he analyzes it with integrity, the answer should be “we can’t do that.” If he is under pressure to “come up with a justification,” any decent lawyer will realize that a memo or report expressing this will likely cook his goose if the university subsequently gets nailed (i.e., “But the lawyer told us that it was OK! It’s his fault, not mine!”).
3. Ask Hard Questions in a Public Forum
An excellent recent example of this comes from University of Texas Professor Richard Lowery. At recent UT Faculty Council meetings (which include a session similar to “Prime Minister’s Questions” with the UT president), Professor Lowery asked President Jay Hartzell to explain UT’s new DEI faculty hiring plan, including what its so-called “diversity skills” actually are. As you’ll see from the video (starting at the 44:30 mark), President Hartzell essentially evaded the questions, and reacted with a laugh (45:45) at Professor Lowery’s indication that legal experts had raised serious questions regarding the DEI plan.
Nevertheless, these questions apparently caused President Hartzell some heartburn, because at the next Faculty Council meeting, he felt the need to make a statement giving UT’s justifications. But in so doing, he actually made matters much worse for UT.
Hartzell articulated three motivations for the DEI plan: 1) The plan ensured a diversity of viewpoints on campus (29:00); 2) it was necessary to assure that underrepresented groups had “role models” on the faculty (30:35); and 3) it helped UT hire faculty who were committed to “inclusiveness” on campus (31:25).
As Professor Lowery pointed out in his subsequent questions (beginning at 35:45), UT’s DEI plan has nothing to do with viewpoint diversity (unless, of course, you believe that all members of X identity group think alike and must share the same viewpoints—a rather bigoted belief, in my opinion). Note also that President Hartzell once again would not define “inclusiveness,” other than to suggest that anyone opposing UT’s DEI initiative were ipso facto bigots.
But it was President Hartzell’s second justification—discrimination as necessary to provide “role models”—that was the real gem. Over thirty years ago, in Wygant v. Jackson Board of Education, 476 U.S. 267 (1986), the United States Supreme Court rejected the “role model” justification for racial discrimination in education employment and held that discrimination on that basis violated Tile VI. Thanks to Professor Lowery’s questioning, President Hartzell has now made a clear public record that one of UT’s official motives for its DEI initiative is something that has been known for decades to violate Title VI. (One hopes the Texas Legislature is paying attention . . . as well as any employment plaintiff’s lawyers out there.)
While the tactics I describe above are in the DEI-employment context, they can work equally well when confronting university violations of free speech, viewpoint discrimination, and similar matters. And while your mileage will vary depending on applicable state employment law, raising questions that a particular policy, practice, or decision may be illegal can insulate you from retaliation (and, in many states, can give you a heavy cudgel with which to hit back if the institution does retaliate).
Remember the old chestnut that “sunlight is the best disinfectant.” Much of the woke agenda on campus works because it is employed covertly. Force (or threaten to force) it into the light, and it will either retreat, or it will be easier to fight.
Image: Randy Fath, Public Domain
I tried this recently when my institution published a job opportunity (actually 5 positions). The subtext was “whites need not apply.” I was blown off. Now a white male candidate has expressed objections. We’ll see where it goes.
This is great advice for tenured faculty, but if I were to ask that question of my chancellor at a public forum, I would be fired within a day.
There is nothing in the Jewish Bible that says that God cares about your race. I assume that the same statement could be made about Christian Bibles (any denomination). Otherwise, wouldn’t the Klan have rubbed it in peoples’ faces for decades?
Does a Jew or Christian have a position that university antiracism training or DEI programs violate the First and Fourteenth Amendments by forcing employees/students to make decisions based on race?
I realize that private universities may have a position that because they aren’t governmental entities they aren’t violating the First Amendment. Nevertheless, I would like to see someone put them in the position that they have to admit that their policies would violate the First Amendment if they were a governmental entity.
I wish I could be more optimistic, but I must disagree with the author.
1.) Universities started being founded (1088A.D.- Universitat De Bologna) for the distinctly political purpose of reinforcing the power of the State, against the Church. It was successful in providing government clerks wholly dependent on the State, and not responsive to Excommunication of a ruler. Really significant power of Excommunication was broken by 1500, because rulers no longer needed outside approval to rule. From there, the University has marched hand in hand with the State, funded by it, and by those dependent on it, and structured by its needs.
2.) The University has *every* reason to support the “woke”, because the “woke” support “causes” specified by the University. In particular, they support “causes” that will be serviced by government clerks in positions requiring University certification as the beginning of their career. In these, it sustains the growth of the University as a social institution. Among those “woke” programs is the continual presence of anti-religious exposition at every opportunity.
4.) I agree that resisting from inside the University structure is a dying fail. Instead of the 40 years ago Dr. Ed puts it at, I would have put it at 50 years, when Critical Theory began its own “Long March through the Institutions”, under its banner that *All* human relationships are based in power!” It only became visible to those paying attention at 40 years ago. The “woke” intend to keep that power as much as Lenin did, when he announced, in the matter of elections, that “The People’s Soviets did *not* take power to hand it over to others!”
5.) If we are to gain an ability to pass knowledge from one generation to the next without “woke” policies delimiting what can be discussed and passed on, then we must build new social structures to do this that are *not* dependents of the State. That is the long hard road we have in front of us. The sooner more people realize this, the sooner we can get started.
Totally agree with you, especially #5. We must build our own platforms for communication, education, etc., and become our own bastions of influence. Given the choice, I predict many will see the light and come over to truth, authenticity and good sense. Some (many?) follow the “flow” at this point because they feel it is overwhelmingly their only option. Let’s create that option, but it must be done independent of federal financing.
Unfortunately, these “Tactics” while championed here to “resist wokeness” will have the opposite effect the write would hope. It is good to have and search for people of a diverse background especially in education as you risk a bottleneck of rich and city-dwelling people (as we already see). If a school was to search for a professor or students from disparate economic/rural backgrounds (as I believe they should) the author would likely not see this as discrimination because everyone is so stuck on opposite battle lines of race. A rich professor or student would have had lots of opportunities to “become the best candidate” simply because they could afford to take on unpaid internships/work or pay for tutors or be in a position to not have to work while studying. These “tactics” while claiming to fight against discrimination would actually serve to foster in universities the blight that this organization claims to fight against. If we want universities to be a space for rigorous thought and debate, then they should be allowed to seek specific students and professors to fill experience and cultural gaps in the same way that they fill knowledge gaps.
The objective of an education is not to fill and experience “cultural gaps”, it is to impart knowledge. Funny thing about knowledge (at least in real majors like STEM) is a student’s culture or life experience is completely irrelevant and adds nothing whatsoever to the educational experience or a student’s preparation to learn. Being a racial minority who grew up in an inner city environment doesn’t do a whole lot for you on that integral calculus midterm exam. Not sure what cultural gaps need filling in that time series analysis and forcasting class you need to take for that BA in business degree.
Also, so what if one person has “lots of opportunities” to become the best candidate? More power to them. Are students not entitled to have the best and brightest professors? Perhaps you could explain how hiring lesser qualified candidates benefits students. It would also be good to know how coming from a disparate economic/rural background makes one a better accounting, civil engineering, physics, italian language, medieval history, etc. professor.
When I was an Assistant Professor of Public Health at Purdue, we had the public health faculty preparing a self-study document for CEPH accreditation, and I noticed that it included language with specific numerical quotas for hiring faculty and admitting graduate students based on race, sex, and national origin. I immediately saw the problem – such have been ILLEGAL since the Bakke decision in the 1970s, and pointed that out and the fact that it would create Problem #1 above- it was prima facie evidence of discrimination if we were sued. I had other faculty members react as if I were a Klansman, but I insisted that we seek review by the University counsel before adopting it to make sure (Option 2 above). Our program chair took it to the (black) University Affirmative Action Officer, who backed me up and insisted in quite firm language that the paragraph be eliminated.
I accomplished that goal, but it was probably another nail in the coffin of tenure, as we were mishoused in a PE department and had a chair who was actively pushing to eliminate our program in any way he could – including harassing public health faculty with false police reports and such, overturning departmental faculty votes by submitting names other than those chosen by faculty for fellowships when the student in question was in the health program, etc. Somehow, despite being one of the top externally funded researchers and one of the most productive at publishing in the whole department, having good teaching evaluations (one semester I had students in a graduate seminar give me PERFECT evals), service on two CDC advisory boards, a state-level rural EMS task force, and consulting for DoD on Medical Civic Action doctrine, being a member of a journal editorial board, winning a mentoring award, and having MPH students producing thesis that other faculty described as better than a lot of departmental PhD dissertations, he managed to kill my tenure.
I miss teaching, working on my own projects, mentoring students, etc. – but I am very happy to not have to deal with faculty politics in my current private sector position with a medical analytics firm. Our CEO would not tolerate the crap I saw in academia, as it would cost the firm too much money.
This is asinine — all this will do is identify you as a “problem” and get rid of you later under some pretext or another. I speak from experience here.
The legal disclaimer speaks volumes — and lawyers really can’t be found. Again, I speak from experience here.
I consider this advice to be irresponsibly reckless. Do not forget that Mike Adams is dead…
“ The only thing necessary for evil to triumph is for good men to do nothing.”
I suppose you’d have suggested that people like Gordon Klein and Dorian Abbott should have just meekly taken their lumps and shut up, rather than fighting back.
Good lawyers willing to take on universities are out there, as well as groups like FIRE and other organizations willing to bring the heat. But as long as faculty are unwilling to take even modest action to resist this evil, its continued success is assured.
Is it going to be easy? No. Do you need to be smart in choosing what battles to fight and how to fight them? Yes. But simply surrendering guarantees defeat.
LKB – there are a LOT of ways that they can get around the risk. For example, I could not pursue legal action over my tenure decision, even though I vastly exceeded the departmental written requirement (our college ombudsman said I was the first tenure grievance she had seen in her career who had a clear-cut case, all prior annual evals stated I was making satisfactory progress, and I could prove the chair lied to the Dean in his account), because under state law, all positions are on an “at-will” basis and hence they needed no reason to end employment. I DID stick them with an additional 6 months salary and benefits – about $65K – due to the chair’s failure to process paperwork properly in violation of university regulations.
Assistant Professors are at great risk, as most schools hold secret P&T discussions and votes, and a vague complaint of “non-congeniality” is enough that Deans, Provosts, and Trustees take the departmental vote as justification for the decision. There is almost no legal recourse at ANY school in the event of an adverse vote, and many state schools operate under laws that have ALL faculty employed on an at-will basis. Many contracts at other schools apply the same to non-tenured faculty. If you think the courts go overboard in giving deference to regulatory agencies under the Chevron rule, you haven’t seen anything given the deference given to tenure decisions by colleges.
Mike Adams won his promotion case because he already had tenure and was protected from termination when he fought. It still cost him financially and emotionally, and subsequent harassment drove him to suicide. I had my chair when I grieved over his harassment resort to SWAT’ing me with a false report to campus police of a “large weapons stockpile” in my campus office – which result in the campus police searching my office during my scheduled student office hours. Even after it was proven he made a false report, no charges were filed, and the school covered it up by allowing him to simply step down as chair without penalty. This was not the ONLY such case in his history – he falsely accused a tenured full Professor of sexually harassing grad students in class, charges all of the students in the said class testified were false.
I think the key here is to choose your battles wisely.
It is my observation that some of the most malicious woke university administrators have an achilles heel: hubris. They believe they are virtuous and right and unstoppable and so they will put things in writing. Concentrate on those cases where the evidence is clear that discrimination laws are being violated. Then go in for the kill in court.
The time for the good men to act was 40 years ago. That’s when the radicals started getting tenure, when the Offices of All Good Things and “Studies” programs were being established.
Instead, they did nothing — first ignoring Student Affairs and then the growing evil in Academic Affairs as well. They kept their heads down until they could quietly retire with their pensions and emerati status.
These men were not cowards — most were WWII vets who had used their GI benefits for grad school. They’d lived through the turmoil of the late ’60s and hoped that this, too, would pass. It didn’t — the ’60s essentially became a smouldering backdraft that has now exploded into a conflagration.
And any firefighter will tell you that attempting to fight a conflagration is nothing but suicidal.
Even with tenure, they can create a living hell for you. Without it, they don’t even need to manufacture a reason to get rid of you (as I note from experience in my comment elsewhere). For that matter, tenure is a fiction at many public institutions – Indiana statutory law specifically states that ALL state university employees are employed on an “at will” basis, and hence the tradition ideal of tenure protections is illegal.