Required statements on diversity, equity and inclusion (DEI) are fast becoming a part of admissions and hiring at universities and professional schools. “A review of the admissions process at 50 of the top-ranked medical schools found that 36 asked applicants their views on, or experience in, DEI efforts,” according to a recent report by Laura L. Morgan for the advocacy group Do No Harm.

Controversy has mounted over to the extent to which these requirements, in the words of Princeton’s Keith Whittington, function as “political litmus tests, requiring that scholars pledge themselves to believe and advance a set of contested political values.” DEI statements vary widely; some may serve as desirable or innocuous ways for applicants to signal that they are involved with their communities, or that they believe they can study and work successfully with persons from cultural backgrounds different from theirs.

On the other hand, reports Morgan, many medical schools “were overt in asking applicants if they agreed with certain statements about racial politics.” Among questions asked: “We are interested in combating all forms of systemic barriers, and would like to hear your thoughts on opposing specifically: systemic racism, anti-LGBTQ+ discrimination, and misogyny. How will you contribute?” (University of Pittsburgh School of Medicine) “Please share your reflections on, experiences with, and greatest lessons learned about systemic racism.” (University of Minnesota School of Medicine). “What have you done to help identify, address and correct an issue of systemic discrimination?” (University of Miami Miller School of Medicine). “Without limiting the discussion to your own identity, please describe how you envision contributing to the core values of diversity and inclusion at our School of Medicine, and in the medical profession.” (University of Maryland) Some of these would appear to approach tests of belief and intensity of commitment to belief. “Academics seeking employment or promotion will almost inescapably feel pressured to say things that accommodate the perceived ideological preferences of an institution demanding a diversity statement, notwithstanding the actual beliefs or commitments of those forced to speak,” Janet Halley of Harvard Law has written.

The question naturally follows whether the U.S. Constitution permits public institutions such as state universities to make the chances of acceptance turn in part on avowals of belief. Eugene Volokh, the UCLA First Amendment expert, recently debated UC Davis law professor Brian Soucek on the subject. Volokh offers the following analogy:

[Suppose] we get involved in another war. Much of the country, including [the university system], very much supports the war effort. So the University decides to offer faculty members and prospective faculty members an opportunity to mention their work related to the subject for purposes of evaluation, promotion, and hiring.

If, for instance, some professors joined the National Guard, which takes extra time, that could be used in deciding whether they were being productive enough scholars (just as other faculty might get extra time for tenure evaluation if they took semesters off because of illness or for parental leave). If they put on programs that helped returning soldiers, that would be counted as a form of “service” (faculty generally being evaluated on scholarship, teaching, and service, roughly in that order), even if normally service would otherwise focus on other subjects (such as service on university committees, or writing op-eds or blogs educating the public on the faculty’s areas of expertise). If the History department decided that military history hadn’t been taught enough, then indicating that one is teaching military history or is about to do so might count for extra teaching credit. I don’t think this would violate the First Amendment or academic freedom principles. A university is entitled to set and recalibrate its priorities in these ways.

On the other hand, say the university said (following UC Davis) that “applicants seeking faculty positions … are required to submit a statement about their past, present, and future contributions to promoting [the war effort] in their professional careers,” and did the same for existing faculty as well. This doesn’t expressly forbid people from criticizing the war, or from just avoiding matters having to do with the war. Perhaps even behind closed doors the university might try to deal with this fairly, maybe even weighing scholarship or public commentary that comes to an anti-war conclusion equally with scholarship or public commentary that comes to a pro-war conclusion.

But wouldn’t the message be quite clear—if you want a job here, or if you want to keep your job (especially if you’re untenured), or if you want a promotion, you’d be wisest to express pro-war positions, or at least keep your anti-war positions to yourselves? And is that consistent with the First Amendment and academic freedom principles?

Food for thought, especially since support for war efforts along with concepts such as “100% Americanism” have been considerations in university employment at various points in American history. A couple of related posts: Ontario bar effort (from which it backed off following a membership revolt) to require lawyers to “promote” equality, diversity, and inclusion; and David Boaz on a “right to remain politically silent.”