DEI’s Inevitable Descent into Legal Trouble

Depending on which side of the political aisle you choose, “diversity, equity, and inclusion,” better known as DEI, stands for very different things. For the far-left, who have largely coopted and infected their less radical comrades, it is something inherently good and imbued in America’s DNA. In response to increasing demands for dialing down DEI programs, they have even come up with a cheesy rebrand for “diversity, equity and inclusion:” “Definitely Earned It,” because “you have to be twice as good to get half as far.”

If a person has earned a job or admission offer based on measurable qualifications, why is DEI needed to buttress that person’s prospects in the first place? Giving favorable treatment in the name of DEI to a college applicant who scores over 60 points less on the SAT than the “overrepresented” counterpart doesn’t comport with the “twice as good” slogan.

The rest of us—conservatives, classical liberals, libertarians, and heterodox thinkers alike—do not associate the now-infamous euphemism with anything encouraging. In practice, DEI translates directly into racial quotas in hiring or admissions, engineered “equal” outcomes, and retributions against detractors. Opponents call it “discrimination, exclusion and indoctrination,” to wit. Industry leaders want to replace it with “Merit, Excellence and Intelligence.”

Having realized that they have been duped into paying handsomely for cultural Marxist rubbish at the expense of the law and institutional competitiveness, a succession of schools and companies are seeking to break free from the DEI cult. In May, MIT led the course-correcting journey by ending the use of diversity statements in hiring. Harvard—its School of Arts and Sciences—and Stanford soon followed suit. But these detractors remain the minority, compared with the vast swamp of true believers and useful idiots.

In progressive Maryland, for instance, the state university system has maintained a highly integrated DEI function, complete with sub-focuses on disability accessibility, bias incident reporting, diversity training, an LGBTQ+ Equity Center, a Black Cultural Center, multi-ethnic student education, and freshmen onboarding. To the University of Maryland diversity czars, DEI is grounded in “social justice principles,” “morally right and educationally sound.”

Last month, the National Association of Scholars (NAS) Maryland Affiliate, a volunteer group of professors and scholars in Maryland, released a report on the 2023 DEI program reports from all 12 of the University of Maryland campuses. The detailed analysis identifies glaring conflicts between these DEI programs and both the Equal Protection Clause and the free speech rights ensconced in the U.S. Constitution. Aside from the two major constitutional issues, Maryland’s state university DEI activities also run afoul of the judicial precedent against race-based college admissions set in Students for Fair Admissions, Inc. v. Presidents and Fellows of Harvard College, as well as the precedent barring compelled speech in West Virginia Board of Education v. Barnette.

Using DEI to cure racial or ethnic “underrepresentation” in student and faculty demographics, a common theme of all programs analyzed by the report, is particularly suspect due to the inevitable leap from representation to racial classifications. Many diversity programs, such as the “Bias Check” training series at the Bowie State University, anti-bias training at the Frostburg State University, and the “Fix Your Climate” learning session at the Towson University, which “interrupts” racism and microaggressions, gravely threaten academic freedom and unlawfully compel speech.

The NAS Maryland Affiliate’s report presents five policy recommendations to the Maryland Board of Regents:

• Use one standard definition of underrepresentation that conforms to the Constitution, SFFA ruling, Title VI and Title VII.
• Develop and disseminate clear definitions of protected vs. unprotected speech.
• Commit to intellectual diversity and academic freedom.
• Avoid compelled political or ideological speech as a condition for admission, employment or financial rewards.
• Make legal compliance records transparent and accessible.

A similar endeavor is unfolding at MIT, where an alumni group submitted a comprehensive set of recommendations on free expression to the university in late May. These include upholding the critical importance of viewpoint diversity, transparency, and accountability, following MIT’s decision to end the use of DEI statements in faculty hiring.  The group, the MIT Free Speech Alliance, the largest independent organization of MIT graduates, has actively campaigned against DEI mandates and rampant cancel culture on campus.

But it is still too early to celebrate. Even the handful of colleges and universities that have done away with compulsory DEI hiring are far from being immune to the entrenched culture of affirming identity politics via a proliferation of DEI-themed activities. MIT’s School of Science has a DEI office under the Office of the Dean, which enforces the school’s DEI action plan and supports MIT’s systemwide Strategic Action Plan for Belonging, Achievement, and Composition.  The school’s DEI action plan proposes, among other lofty goals: giving additional support for “underrepresented” groups, using “inclusive language in the job description,” designating individuals to whom people can report DEI-related concerns, and promoting “affinity and identity-based activities.” By the same token, the MIT strategic action plan reads like a woke word salad decorated by “inclusion,” “collective well-being,” “equity pathways,” and “social justice.”

In late July, three University of Alabama campuses closed their DEI offices to comply with the state’s legislative ban on compelling state university students and faculty members to support race-based policies or submit DEI statements. Rather than saying “good riddance,” the University President explained in an official statement to the campus that the DEI division will be replaced by a new office called the Division of Opportunities, Connections and Success, led by the university’s former DEI administrator.

Unless we relentlessly confront DEI’s apparent legal issues in courts and continue to advocate for broader cultural, normative, and institutional changes, the hard-fought momentum against the infectious ideology will be easily hijacked and subverted by a new generation of schemes to package the old wine in new bottles. Progressive university bureaucrats, especially those who benefited from DEI, are not likely to heed the honest advice of watchdog groups, until we give teeth to our proposals. As Timothy K. Minella, a senior Goldwater Institute fellow, argues:

Moves against required diversity statements are welcome developments, but simply removing these statements from the formal hiring process will do little to roll back DEI and restore institutions of higher ed to their foundational missions. Higher-ed reformers must keep up the pressure to confront DEI in all forms, including within the hiring process and the curriculum.

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