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Supreme Court should recognize ‘diversity’ programs are about leftist politics, not education

Supreme Court should recognize ‘diversity’ programs are about leftist politics, not education

This essay was first published in the March 7, 2022 Epoch Times.

The Supreme Court will soon decide whether universities may continue to discriminate by race and ethnicity (pdf). The court’s consolidated proceeding includes cases against Harvard University, a private institution, and the University of North Carolina (UNC), a state institution.

The Harvard case arises under federal civil rights law and the UNC case under the Equal Protection Clause in the Constitution’s 14th Amendment. This essay focuses on the UNC case.

UNC’s discrimination is typical of state universities. It biases student admissions heavily against white and Asian-American applicants and favors African Americans, Hispanics, and American Indians.

UNC, like other universities, asserts that its discrimination is driven by educational needs. I believe that is a pretext. I believe such programs are driven principally by left-wing politics.

If UNC wants to defend racial discrimination as educationally necessary, then it should be forced to pony up the proof—with real and quantified data. Not with anecdotes or politically driven “studies.” The court should stop deferring to university bureaucrats on this point, as it did in a 2003 case (pdf).

The Strict Scrutiny Test

The Equal Protection Clause generally prohibits state institutions from discriminating based on race or ethnicity. The principal exception arises if the discrimination passes the “strict scrutiny” test. To survive “strict scrutiny,” the institution must prove the following:

(1) The stated reason or goal is the true one, not a mere pretext.

(2) That reason or goal is “compelling”—not merely helpful or desirable.

(3) The discrimination is “necessary” or “narrowly tailored” to the compelling goal; in other words, there must be no other way to achieve the goal.

(4) The state institution bears the burden of proving each of the three foregoing.

What kind of goal is so “compelling” that a state entity may engage in racial discrimination? Possibly something at the level of national defense. Oddly enough, however, in its 2003 case the Supreme Court ruled that “the educational benefits of a diverse student body” qualify as “compelling.” Yet the court did not require the universities to prove that “diversity” actually provided the purported “educational benefits.” The court said it would defer to the universities’ expertise on that subject.

However, the overwhelming evidence is that “diversity” discrimination is really about favoring left-leaning political groups and reducing the number of traditional and conservative students and staff.

There are at least six reasons for so concluding.

Reason #1: ‘Diversity’ Can Impede, as Well as Promote, Education

Any honest and experienced educator can tell you that ethnic or cultural diversity is a mixed blessing for student learning. Consider this simple illustration: A class consists of one third English speakers, one third Spanish speakers, and one third Korean speakers. This class is certainly “diverse.” But its diversity renders it unteachable. For the class to function, the students need a common cultural reference—in this case, a common language.

This is an extreme case, but it’s not the only one. Cohorts of students with widely different levels of intelligence or educational preparation similarly lack the commonalities necessary to function as a class.

Cultural diversity also can impede education, particularly in basic courses. I learned this in my decades of teaching first-year law students. The American legal system is fundamentally English, so students from WASPish backgrounds begin at a different starting point than students from other cultural backgrounds. Indeed, those from some cultures (e.g., some American Indian tribes) flatly reject the adversarial process that forms a core part of our legal system.

In other contexts, we concede that diversity can hurt education and that common background can help. Consider the enviable records of women’s colleges and historically black colleges. Notably, a 1990 Brookings Institute survey found that some of the nation’s best-achieving public schools were successful partly because they served homogenous populations.

Of course, I’m not denying that diversity promotes education in some contexts (advanced literature courses, for example). Nor am I arguing for racial, ethnic, or cultural segregation. I’m pointing out that in education, “diversity” is a mixed bag. It certainly isn’t a justifiable basis for the viciously unfair practice of racial and ethnic discrimination.

Reason #2: ‘Diversity’ Programs Are Politically Gerrymandered

There’s another reason for concluding that “diversity” programs are about politics rather than education: They are structured in ways that show their professed purpose isn’t their real purpose.

It’s claimed that such programs promote viewpoint diversity. Then why don’t they seek out political and religious conservatives and women with traditional values? Those views are underrepresented in university classrooms today.

It’s claimed these programs seek applicants from traditionally marginalized sectors. Then why do they effectively discriminate against Mormons and Asian-Americans?

It’s claimed that such programs seek a “critical mass” of significant demographic groups. Then why does a clear definition of “critical mass” always elude us?

There’s only one coherent explanation for such programs, and that is political. They almost universally favor the following groups: African-Americans, Hispanics, Native Americans, LGBTQ people, and feminist women. What these groups have in common is that they all are major components in the base of the National Democratic Party.

Reason #3: Universities Reject Non-Discriminatory Ways of Achieving Diversity

The strict scrutiny test bars discrimination if there are other ways of achieving a “compelling” goal. But universities sometimes reject other methods and discriminate instead.

For example, in 1996 the University of Texas (UT) faced a court order to stop racial discrimination. It therefore adopted a program to build a diverse student body through non-discriminatory methods. In 2000, UT announced that its ‘‘enrollment levels for African American and Hispanic freshmen have returned to those of 1996.”

But in 2003, when SCOTUS upheld some discrimination, the UT president immediately announced a return to discriminatory practices (pdf, pp. 2217–18). The most reasonable explanation is that those practices are part of a political spoils system.

Reason #4: Universities Frequently Discriminate Against Conservatives

Incidents of racial discrimination, like incidents of sexual harassment, can be part of a wider pattern. Understand the pattern, and you understand “diversity” discrimination.

Part of the wider pattern is bias against conservatives in hiring and promotion. At the administrative level, the current job description for a deanship at Albany State University in Georgia is typical. It says that the successful candidate must “infuse diversity, equity, and inclusion into all aspects of the position’s responsibilities” (pdf). In other words, if you disagree with the left’s DEI agenda, don’t bother to apply. This assures that no honest conservatives are hired.

At the faculty level, any conservative or moderate professor (there are a few remaining) can regale you with anecdote after anecdote about how academic political discrimination works. Nor is the evidence merely anecdotal; empirical studies have documented the results (pdf).

Sometimes conservative applicants are excluded for trifling reasons. Sometimes more difficult promotion standards are imposed on conservatives. And as the academic careers of Ward Churchill and Elizabeth Warren demonstrate, when a professor is sufficiently politically correct, some universities seem to apply virtually no serious hiring or promotion standards at all.

Recently, discrimination against conservative staff has become more blatant. The latest edition of the Heartland Institute’s Heath Care News (pdf) reports that the University of North Carolina-Chapel Hill medical school

has … revised guidelines for appointment, reappointment, and promotion of faculty that include diversity, equity, and inclusion (DEI) training and making a “positive contribution to DEI efforts.” … [T]he staff has to accept subjective indoctrination in DEI and materially demonstrate acceptance of that doctrine through active participation in promoting it, such as through materials provided to students. … The university provides a nonexclusive list of activities an applicant could use on his or her curriculum vitae (C.V.) to demonstrate what it calls a “positive contribution” to the promotion of the DEI doctrine.

The National Association of Scholars has assembled a long list of university faculty who have been fired or persecuted for expressing “non-woke” political views.

Reason #5: Universities Gerrymander Programs to Serve Leftist Politics

Another part of their political pattern is how universities bias their programs and course curricula. When I taught at the University of Montana, it billed itself as the state’s flagship liberal arts institution. But it focused far more heavily on leftist favorites such as “environmental studies” (which is technically not a liberal art at all) than on such traditional liberal arts programs as Greco-Roman classics. The law school (where I taught) devoted far more resources to lefty favorites such as environmental law and Indian Law than to courses of more value to most graduates, such as commercial law. Similarly, the law school’s clinical program offered more opportunity for “progressive” activism than for conservative activism.

Featuring leftist programs and courses gives universities an excuse to hire more leftists. The University of California at Berkeley has created something called the Othering and Belonging Institute. Here is its current advertisement for new faculty (pdf):

The University of California, Berkeley invites applications for a full-time tenured faculty position as part of a campus-wide cluster hire in the area of Diversity and Democracy. The three areas of focal interest for this position are …  1) diversity and identity; 2) diversity, civil society and political action; or 3) legal or philosophical frameworks for diverse democracies. Special consideration will be given to candidates who work in one or more of the following areas: 1) the content and contestation [sic] of group identities; 2) the civic and political engagement of diverse populations within local, national, and transnational contexts; or 3) the normative or legal implications of racial and ethnic diversity within democratic societies.

How many conservatives do you think will apply for that position?

Sometimes universities create special “centers” so they can go outside the usual procedures to hire the politically correct. The University of Montana created a Center for the Rocky Mountain West to give jobs to former state and local politicians, all liberals. When Colorado’s Democrat governor Bill Ritter decided not to run for a second term in 2010, Colorado State University erected a Center for the New Energy Economy and put Ritter in charge. Neither Ritter nor any of the politicians hired at the Center for the Rocky Mountain West had significant academic credentials.

Incidentally, don’t be fooled by the line that in creating leftist programs universities are merely responding to student demand. University propaganda largely shapes student demand.

Reason #6: State Universities Serve as Leftist Political Action Centers

Still another part of the wider political pattern is that state universities often dedicate public resources to leftist causes. I’ve already noted the creation of special departments and centers. State universities also offer free facilities for “progressive” activities. When I was a visiting professor at the University of Utah, law school facilities regularly were used to facilitate ACLU and environmental lawsuits.

State universities often seek to pull public debate to the left. The University of Montana School of Forestry is a partner in the “Wilderness Connect” website—essentially a political platform promoting more government-controlled wilderness. The site extolls the “benefits” of wilderness, exhorts readers to support environmental organizations, and promotes the highly controversial view that government-controlled wilderness furthers economic growth.

Similarly, on Oct. 28, 2021, the same institution sponsored a program called “A Climate Conversation.” You might expect a range of views, but that would be naïve: The only two invited commentators were both climate alarmists: former Vice President Al Gore and former Sen. Max Baucus (D-Mont.).

Constitutional Implications for ‘Diversity’ Discrimination

The overall picture strongly suggests university racial and ethnic discrimination is more about politics than education. Accordingly, the Supreme Court should apply the same strict scrutiny standards to that discrimination it applies in other cases of state racial discrimination. It should require UNC to prove that (1) the real and sole purpose of its “diversity” program is to promote education rather than political outcomes and that (2) the program does, in fact, measurably and significantly promote student academic improvement.

Rob Natelson