RUTHFULLY YOURS

Many U.S. universities, including MIT, our alma mater, now require Diversity, Equity and Inclusion (DEI) statements in applications for tenure-track professorships, and even for graduate students.  In many cases it is the first filter for applicants, so you may be the new Einstein but if your DEI statement says something like, “I treat all people equally regardless of race or gender,” you will be out of luck.  As discussed below, that isn’t what is meant by DEI, which demands fealty to equity – that is, equal outcomes – not equal opportunity free of discrimination.

Mandatory political pronouncements such as the anti-Communist oaths of the 1950s and 1960s were long ago ruled unconstitutional by U.S. courts. And given the recent Supreme Court decisions regarding affirmative action and freedom of speech, mandatory DEI statements should also be eliminated.

What is DEI, and why might there be objections, legal and ethical, to it?

Let’s start with the words themselves. Here is what Google (via Oxford Languages) says for Diversity: “the practice or quality of including or involving people from a range of different social and ethnic backgrounds and of different genders, sexual orientations, etc.”  

Note what is not there: anything about a range of different ideas or viewpoints. But it is new ideas that will define future progress, not superficial differences such as skin color, ethnicity, or gender. And how does this comport with Dr. Martin Luther King Jr.’s invocation to judge men not by the color of their skin but by the content of their character? Have we abandoned that?

But worse than Diversity is Equity, which, in spite of what many people think, is not the same as equality. In fact, as currently used, it is essentially the opposite. For example, here is the definition used by MIT’s Mechanical Engineering Department:

The goal of equity is to ensure fair treatment. It differs from the principle of equality in that equality affords everyone the same treatment, while the principle of equity acknowledges existing inequalities and adjusts and tailors resources to afford everyone equal opportunity. . . Finally, we measure equity based on outcome rather than intent. If a policy, program, activity, building or other physical structure contributes to inequities, then it is unjust and must be modified to ensure all members of the community can thrive. (Emphasis added.)

In other words, if members of a certain group perform poorly on a test, then it is incumbent on the institution to eliminate or modify the test, or inflate the grades of the poorly performing group. Is that really what MIT has in mind?

We would remind the people who run the Mechanical Engineering Department at one of the most prestigious STEM schools in the world that a newly designed electrical generator or engine doesn’t “care” whether or not the engineers who designed it are DEI-compliant; what is essential is that they have mastered the necessary fundamentals of math, physics, and materials science.

Therefore, it is not unreasonable to have concerns about mandatory submission of a statement supporting DEI. These compulsory statements that determine whether you even get considered for a job run afoul of the Compelled Speech doctrine, which is derived from a series of legal decisions that make clear that the First Amendment to the U.S. Constitution not only limits the government’s ability to punish a person for his speech but also prevents the government from punishing a person for refusing to state some particular set of beliefs.

There are a number of cases associated with the Compelled Speech doctrine. An early one is West Virginia State Board of Education v. Barnette (1943), in which the Court found that school children could not be compelled by the government to salute the flag or recite the Pledge of Allegiance. Since public schools are considered to be part of the government, compelling students to take an oath violated the First Amendment.

In Cramp v. Board of Public Instruction of Orange County (1961), the Court ruled that a Florida state employee could not be forced to take an anti-Communist oath. This case is similar to the anti-Communist loyalty oaths that California universities required in the 1950s, which were ruled illegal in Tolman v Underhill in 1952 and were further limited in Vogel v. County of Los Angeles (1967).

In the 1943 Barnette decision, Justice Robert Jackson memorably wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

These rulings clearly demonstrate that compelled speech espousing (or opposing) a particular political point of view is illegal and unconstitutional.

So how did universities justify requiring DEI statements for job applications and student admissions? The answer is that they hid behind the rubric of “compelling interest,” arguing that a compelling interest in Diversity trumped the Compelled Speech doctrine.

What lent credibility to this theory was the ever-narrowing exception for affirmative action. Affirmative action originally allowed universities to set quotas for various races despite the clear text of Title VI, which states “Title VI prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.” 

But now the Court has ruled that the plain text of Title VI actually means what it says: “Title VI reinforces the colorblind view of the Fourteenth Amendment.” And now it has resulted in a lawsuit against the University of California, Santa Cruz on this very issue.

We put the question of required DEI statements to ChatGPT, which answered that DEI statements might not be seen as compelled speech because they do not tell you how to answer. That must be a very credulous or politically correct chatbot, indeed. Try saying in your DEI statement that “all lives matter” or that you will be colorblind in your treatment of individuals, and see what happens to your application.

Lastly, there is the moral issue. How is it fair to force someone who may not agree with DEI to provide a statement that supports it? How is this different from the coerced confessions of various Communist regimes, or the requirement to join and subscribe to the tenets of the National Socialist Party in order to get the plum jobs in 1930s Germany?

We understand the impetus behind Diversity. Americans are compassionate people and there is a valid desire to give the underprivileged a leg up. But how is it morally defensible to give the daughter of two wealthy Black lawyers preferential treatment over a boy from a family in Appalachia that has never had a college graduate, or a Ukrainian girl whose family fled a war zone with one suitcase and the clothes on their back?

We submit that racial affiliation is the least relevant factor in real Diversity. A far better approach would be to send the huge and ever-burgeoning DEI staff into the hinterlands to seek out promising students with the potential to excel, but who have not considered applying to MIT.

They could then be considered for admission under the same rigorous standards as every other applicant and compete on an equal footing. It could be called the Discovering Excellence Initiative, and they wouldn’t even need to change acronyms. It would take effort and money but only a minuscule fraction of MIT’s $25 billion endowment.

We urge university presidents, and, in particular, MIT President Sally Kornbluth, to tear down this wall of unfairness, immorality, and illegality. Disavow the use of DEI in any aspect or hiring, promotion, or admissions.

Or will it take a lawsuit to make you do the right thing?

Tom Hafer developed systems for neutralizing rockets and drones. He currently coaches teenage robotics teams.

Henry I. Miller, a physician and molecular biologist, is the Glenn Swogger Distinguished Fellow at the American Council on Science and Health. He was the founding director of the FDA’s Office of Biotechnology. Hafer and Miller were undergraduates together at MIT.