DEI statements as a way to discriminate against whites in employment

We’ve noted that essays are the new tool of choice for discriminating in favor of blacks. The Supreme Court’s decision in the Harvard case did not foreclose that possibility, and the diversity industrial complex will attempt to march through this loophole — and not just in the context of college admissions.

By talking up their race and the disadvantages it allegedly caused, black applicants for college admissions, federal contracts, and God knows what other benefits hope to get a boost over white and Asian applicants. It’s very likely they will get it.

Essays can be used not only to boost blacks and Hispanics, but to ding whites, as well. In fact, they are already serving that purpose when it comes to selecting applicants for college professor.

This is clear from a New York Times article on DEI (Diversity, Equity, and Inclusion) statements. These statements force candidates for teaching jobs to describe how they would contribute to campus diversity. Candidates often are called on to provide examples of how, in the past, they have fostered an inclusive or anti-racist learning environment. (This, of course, is an invitation to lie.)

Most of the commentary I’ve seen about the New York Times article has focused on the fact that these statements enforce ideological orthodoxy. That, they do and it’s outrageous.

But there’s another purpose behind these statements. They are used to justify the rejection of white and Asian-American candidates and thereby to clear the way for blacks and Hispanics.

According to the Times:

The championing of diversity at the University of California resulted in many campuses rejecting disproportionate numbers of white and Asian and Asian American applicants. . . .

At Berkeley, a faculty committee rejected 75% of applicants in life sciences and environmental sciences and management purely on diversity statements, according to a new academic paper by Steven Brint, a professor of public policy at UC Riverside, and Komi Frey, a researcher for the Foundation for Individual Rights and Expression, which has opposed diversity statements. . . .

According to a report by Berkeley, Latino candidates constituted 13% of applicants and 59% of finalists. Asian and Asian American applicants constituted 26% of applicants and 19% of finalists. Fifty-four percent of applicants were white, and 14% made it to the final stage. Black candidates made up 3% of applicants and 9% of finalists.

These kinds of disparities are almost never seen in the employment context nowadays. They hark back to the time, many decades ago, when employers often manipulated the selection process to suppress the number of blacks they hired for traditionally “white” jobs.

Given the hugely disparate impact that using DEI statements has had (at least at Berkeley), can their use withstand legal scrutiny? Probably not.

For a selection device that imposes a significant disadvantage on a particular racial group — whites in this case — to be lawful, the employer must show that it is "job-related for the position in question and consistent with business necessity." 42 U.S.C. § 2000e-2(k)(1)(A)(i). And even if the employer makes that showing, the applicant may still prevail by showing that the employer has refused to adopt an alternative employment practice which would satisfy the employer's legitimate interests without having a disparate impact on a protected class. 42 U.S.C. § 2000e-2(k)(1)(A)(ii).

Colleges will claim that contributing to diversity and fostering an inclusive learning environment are job-related attributes, and no court is likely to disagree. However, the issue is whether writing a self-serving DEI statement that the college likes is a valid indicator of these attributes. I doubt that a college like Berkeley could show that it is — at least as they have applied this screening device. As one Berkeley professor quoted by the Times says, “Professions of fealty to DEI ideology are so ubiquitous as to be meaningless.”

I also suspect that rejected applicants could point to equally good methods of determining whether they can teach a diverse student body effectively and without prejudice — methods that would impact white applicants less severely. For example, recommendations from former colleagues and students are probably a better method than a flowery self-evaluation that might not be truthful.

Finally, we should not discount the possibility that, in litigation, discovery would show that the use of DEI statements is intended to screen out white applicants. In that event, the discrimination would be deemed intentional (as I’m pretty sure it is), and there would be no need to use disparate impact analysis to establish the illegality.

Berkeley probably realized that its use of DEI statements placed it on shaky legal ground. (Berkeley might also have realized that it was losing too many good professor candidates.) Accordingly, reports the Times, a vice provost informed those involved in the faculty hiring process that diversity statements should not be treated as a political litmus test or as the sole factor in making hiring decisions. (But it’s not clear how DEI statements can be treated other than as a political litmus test.)

The vice provost added that the university is to evaluate candidates on multiple dimensions, including research. That a college administrator found it necessary to instruct hiring decision-makers to evaluate the research of candidates for professor positions tells us all we need to know about the current state of academia.

In any case, DEI statements continue to be a critical piece of the evaluation process at Berkeley, according to officials and faculty with whom the Times discussed the matter. If they continue disproportionately to exclude white candidates, Berkeley will remain on shaky legal ground. So will other colleges and universities that, no doubt, are using DEI statements to suppress the hiring of whites.