…but can't quite acknowledge it.  I sent the following letter to CHE:

To the editor:

When Brian Soucek assures readers that diversity statements “are constitutional — at least if they are done the right way” and reveals that the University of California is changing its approach to their utilization accordingly, he effectively admits that the prior criticisms of the legality of diversity statements, including mine (Leiter, “The Legal Problem with Diversity Statements,” March 13, 2020), were in fact correct.   Rather than openly acknowledge that, Professor Soucek misrepresents my views and that of other critics.

After citing my Chronicle essay for the argument that Berkeley’s use of diversity statements constituted unconstitutional “viewpoint discrimination,” Soucek then attacks a strawman:  “Critics often say that public universities, bound as they are by the First Amendment, can’t discriminate against students and employees based on their viewpoint.”   I said nothing of the kind.  I said, correctly, that “Government cannot, excluding a few exceptions such as political appointments, base a hiring decision on the speaker’s political viewpoint.”  That faculty “engage[] in rampant viewpoint discrimination when…grad[ing]…student’s exams” (as Soucek puts it) is irrelevant:  as he admits, you cannot mark down a chemistry exam because the student opposes abortion. 

Soucek  complains that critics “assum[e] rather than argu[e] that DEI contributions are not part of the job description for most academics,” quoting my observation that diversity has “little or no relationship to a faculty member’s pedagogical and scholarly duties.”  Soucek omits, however, that I was explicitly criticizing Berkeley’s diversity requirement, according to which a job applicant’s diversity statement would get a low score if s/he “describes only activities that are already the expectation of Berkeley faculty (mentoring, treating all students the same regardless of background, etc.).” In other words, Berkeley’s diversity requirement explicitly distinguished a commitment to the diversity ideology from a faculty member’s other pedagogical duties.

Soucek suggests Berkeley and other UC campuses can avoid legal problems as long as diversity requirements represent “criteria experts within the discipline conscientiously judge to be relevant to the job.”  That point would rule out most university requirements of diversity statements, which are administratively imposed.  If different departments can genuinely decide on their own if actions in support of “diversity” (as distinct from the usual pedagogical duties of faculty, such as “treating all students the same regardless of background” as Berkeley put it) are relevant to the job, and if their disciplinary peers at other universities concur, then Soucek may be right that academic freedom protects such a decision.

Suppose, however, members of the economics discipline decided that actions in support of “capitalism” were “relevant to the job.”   Does that mean economics departments at public universities could exclude candidates who do not demonstrate in practice their commitment to capitalism?  One hopes that the courts would see through this pretextual form of viewpoint discrimination.