Diversity Statements and the First Amendment

In 2024, I was honored to deliver the Roscoe Pound Lecture at the University of Nebraska College of Law. The article based on that lecture is now in print, and until the Nebraska Law Review updates its website with the contents of issue 4 of volume 103 you can find a PDF of the article here.

The article is called “Diversity Statements, Academic Freedom, and the First Amendment.” From the abstract:

Diversity statements have become a common component of applications for faculty positions and student admission at universities across the country. They have also become politically controversial, with several states banning the use of such requirements at public universities. The use of diversity statements also raises difficult constitutional questions under the First Amendment at public universities and academic freedom questions at both public and private universities. Although there are versions of such statements that might pass constitutional muster, as commonly designed and implemented the use of diversity statements likely violates both First Amendment and academic freedom principles. Indeed, diversity statement requirements for faculty hiring are inconsistent with multiple lines of constitutional doctrine.

From the introduction:

This Article develops the constitutional case against the use of diversity statements across several parts. Part II describes what is known about how diversity statements are designed and used in universities. Part III outlines the academic freedom principles that are applicable to the use of diversity statements. Part IV reviews the history of the controversy of the use of loyalty oaths in universities in the mid-twentieth century and draws out some lessons from that experience. Part V applies government employee speech doctrine to the diversity statement requirements for faculty positions at state universities. Part VI applies the political patronage doctrine to diversity statement requirements for such positions. Part VII applies compelled speech doctrine to the use of such diversity statements. Part VIII summarizes the argument and concludes.

The thrust of over half a century of First Amendment doctrine is that state universities are to be the home of a wide diversity of thought and that the artificial imposition of intellectual uniformity on state university faculty runs contrary to First Amendment values. When state universities take adverse employment action against scholars, including by denying them employment, on the basis of their political and social ideas, the state bears a very high constitutional burden to justify such action. To sustain such action, the state must be able to demonstrate that it is taking measures that create the least interference with constitutionally protected expression that might be necessary to advance a compelling governmental interest. At the very least, this necessitates that the state be able to demonstrate that policies that burden disfavored political ideas are essential to advancing the genuine educational and scholarly mission of the university. Such speech restrictions should be professionally justifiable and not mere matters of political convenience or preference. Policies that merely serve to reinforce political orthodoxies on college campuses are constitutionally unjustifiable. Taking such principles seriously casts a substantial constitutional shadow over the practice of using diversity statements to exclude from state university faculties individuals with disfavored beliefs and opinions about matters of political and social controversy.

Read the whole thing here.

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