On June 2, As part of the UC Office of the President's Systemwide Academic Freedom Congress, OBI Director john powell participated in a panel that explored the dynamics between diversity, equity and inclusion-related programs and academic freedom." The panel, which was moderated by Tufts sociologist Natasha Warikoo and also included UC Davis Law's Brian Soucek, discussed current controversies, the implications of federal and state legislative actions, and how universities can uphold their commitments to diversity, inclusion, and academic freedom.
Transcript
Natasha Warikoo:
So good afternoon everybody. I want to welcome you to this panel on DEI and Academic Freedom. I'm Natasha Warikoo. I'm not at the UCs, I'm over on the East coast at Tufts University and I'll be chairing this panel. So I want to thank Provost Newman for inviting me to be on this panel to moderate and Jennifer Tang for all of her logistical support of this panel.
So in this panel we're going to explore issues related to, of course, DEI and academic freedom. And I very much appreciated Danielle Allen's tee up of this conversation in her discussion about academic freedom and the importance of diversity inclusion in the context of academic freedom. Professor Allen described how the inclusion of diverse voices in the academy ensures what she called the necessarily adversarial project of inquiry. Still, in the recent past, some have grumbled that DEI policies and practices in higher education have stifled academic freedom and called for what have some called greater viewpoint diversity. This was the argument that ultimately led to President Trump's executive orders banning DEI, though what exactly those bans entail is yet unclear and under litigation.
On the other hand, attacks on DEI at both the state and federal levels, for example, Florida's ban on funding for DEI-related programming and courses in higher education and the Federal Education Department's Dear Colleagues letter, doing the same thing, have been seen as stifling academic freedom as well. And third, most purporting to curtail anti-Semitism on college campuses have been critiqued for their impact on academic freedom as well, such as Harvard's dismissal of the faculty leaders of the University's Center for Middle East Studies or the resignation of multiple college presidents last year in the wake of federal and donor pressure.
And this issue has been tied to the question of DEI and which groups it serves as well. So in this panel we're going to explore some of these thorny issues and we have a really esteemed panel to help us think through some of these questions. So I want to introduce our panel before we get started. We have Professor John, who is the Director of the Othering and Belonging Institute and Professor of Law, African-American and Ethnic Studies at the University of California Berkeley. Professor Powell formerly served as a national director and legal director of the ACLU, and his latest books are Belonging Without Othering: How we Save Ourselves and the World, and also The Power of Bridging: How to Build a World Where We All Belong.
Second, we have Professor Peter Wood, who is President of the National Association of Scholars. A former professor of anthropology and a college provost, he's the author of Wrath: America Enraged and also of 1620: A Critical Response to the 1619 Project. Peter Wood is Editor-in-Chief of the journal Academic Questions and in 2019 he received the Jean Kirkpatrick Prize for Contributions to Academic Freedom.
And our third panelist is Brian Soucek, who is Professor of Law and Chancellor's fellow at the UC Davis School of Law. Professor Soucek is member of the AAUP's Committee A on Academic Freedom and Tenure, and a past chair of the University of California Systemwide Committee on Academic Freedom, Professor Soucek's book, The Opinionated University: Academic Freedom, Diversity, and the Myth of Neutrality in American Higher Education comes out later this year. So we have this really great panel with a lot of expertise in this area.
So I want to just start our panel by asking a very broad question to each of our panelists, and I'd like all of you to talk about what you see as the relationship between academic freedom and DEI as you understand it, and more specifically perhaps between academic freedom and some of the executive orders and the Dear Colleagues letter that really was as it relates to higher education in particular. So let's start with Professor Powell.
john a. powell:
Well, thank you. It's good to be here on this panel and just to cut a little bit of some of the earliest sessions, but one of the things of course is just definitional, what do we mean by DEI? I think we have a clearer sense because of some of the work that's been done by various bodies as to. What we mean by academic freedom and what we mean by DEI, of course, it partly depends on who we are. So different people would define it differently. If you just sort of break out the acronym diversity, equity and inclusion, it may become easier or more difficult. Diversity in some laypersons thinking is just that, heterogeneity, people have different stripes in some important ways. We live in a diverse society, we live in a diverse world. Many of our institutions are, as one might say, organically diverse. Some are less diverse than others. But in some ways it's a descriptor of the world we live in already. As we see people around the world moving in some important ways, societies and places become more diverse.
Inclusion, again, I think just as a descriptor, if people are coming from diverse background, diverse ideological, cultural, religious, racial, linguistic backgrounds, how do you make them feel included? And we know from a number of studies, including my friend and colleague, Claude Steele, that if people just show up from organizations, places which are not normally included, there may be subtle and not so subtle cues that will make them feel less than included. So it's not something that happens organically, it's something that you have to pay attention to.
I think the word that people trip over the most is equity. And again, like all the words, but certainly equity itself has a very varied meaning, and I've written some about that. I won't go into my writing about it except to say that in the '70s and '80a there was a big debate in terms of equality, equality as a normative measure, but also as a constitutionalist legal matter if it meant equal opportunity or equal results. And provocatively is their relationship between those two concepts, opportunity and results, especially as they relate to different groups that have been historically underrepresented.
I don't think the question was sort of wrestling, but I don't think either group ever wrestled to the ground. Eventually what came out of that was equity, but so equity in some ways related to equality. But again, I don't think there's a singular definition but I think a narrow sense we could say equity might mean fairness, but that's sort of just kicking the can down the road. So what's fair? And do we mean fair, again, legally? Do we mean fair, again, a normative philosophical sense? And a lot of questions if we really scratch on it, is incredibly interesting and a lot more nuanced and complex than we might think.
I'll just end by just saying our concept of equality largely comes from a lot of people, as David Gover reminds us, a lot of places, but a lot of people think about the Greeks and Aristotle as sort of the foundation of our concept of equality. And in reading Aristotle, we find that he actually had a complex notion of equality that would include both of what one might call equal treatment, treating everybody the same, what you call arithmetic equality, but also a more complex notion of equality, which is noting that people who are differently situated have to be treated differently, which is in some sense closer to some concept of equity. And he argued that a healthy society would have a proper measure of both. So I think these are real interesting questions. I think unfortunately they become not scholarly questions, they become political questions, they become political footballs that some people really aren't really that interested in what it means, but more how can it be used and maybe misused.Natasha Warikoo:
Thank you. I'm going to invite Professor Wood to answer the question about just the relationship between academic freedom and DEI as you understand it.Peter W. Wood:
Okay, well, let me start with the summary of my objections to DEI, then I'll turn to academic freedom and conclude with more comments on DEI, how the two come together. DEI is mostly bureaucracy and policies presented as the realization of principle. The principle is maligned, the policy is destructive, the bureaucracy burdensome. DEI violates the equal protection clause of the 14th amendment, which prohibits states from denying any person within their jurisdiction the equal protection of the laws. It also violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex and national origin, and also outlaws creating a hostile work environment and retaliating against employees who report or oppose discrimination. DEI impedes discussion of the drawbacks of racial preferences, rendering real debate virtually impossible.
DEI is a workaround of Proposition 209 in which Californians rejected racial preferences, a rejection reiterated several times, most recently when Californians voted down Proposition 16, which was an attempt to repeal 209. The workaround is a form of deception in which the University of California pretends to obey the law while violating it. Academic freedom cannot thrive on deception. The I in DEI, which stands for inclusion, means that each designated group gets to determine for itself the standards by which achievement for the group will be measured. This subverts common academic standards and it subjects members of minority groups to a form of ethnic policing.
Okay, so what is academic freedom? It is the freedom to pursue knowledge through teaching old truths and discovering new ones in the context of higher learning where skepticism and disagreement are the environing conditions. Academic freedom is the doctrine that institutional authority favors or should favor the expression of ideas consistent with the pursuit of truth. That rules out deliberate deceit, falsified data, intentional obscurantism, propaganda and lies. Attempts to uphold academic freedom always depend on discernment about people's motives, who can tell the difference between seeking the truth and attempting to beguile others with falsehood. Therein lies the source of ferocious controversy. Academic disputes seldom end with the disputants agreeing to disagree, they seldom end at all, even when one side is silenced or sent away in disgrace.
But the concept of academic freedom is nonetheless vital. When is a statement of valid exercise in academic freedom and when is academic freedom merely a cover for duplicity? I have some guidelines. Generally speaking, we do not accept academic freedom as providing legitimate grounds for plagiarism, for faking scientific experiments, for falsely claiming priority on someone else's discovery or for many other ethical transgressions.
But even these lines can be difficult to draw. Does someone who exaggerates the statistical probability of the relationship between two variables merely express an opinion which is thus protected by academic freedom or is such an exaggeration of violation of established standards of statistical analysis? In an age where numerous published papers are rife with irreproducible results, we might well prefer to have stricter boundaries. Nudging statistics is adjacent to fraud.
Now, academic freedom sounds like a noble principle but it could well be a path to the ignoble toleration of meretricious results. And not just in the hard sciences, the social sciences and the humanities are also susceptible to manipulations that dress themselves as efforts to excavate the truth that are really attempts to bury it by misusing the authority and prestige of the university to advance favored opinions that have not withstood rigorous and skeptical examination. But of course, we live in a time when a fair number of academics simply reject any distinction between seeking truth and advancing opinion.
For those who doubt this postmodern and some might say pragmatic view of academic freedom, academic freedom is a little more than a useful bit of rhetoric or at best a device for hoodwinking judge or jury, well then how does the doctrine of academic freedom connect to DEI? One way to approach this is to recognize that DEI is indeed a kind of truth claim, or it can be if its proponents care to present it as something that's open to skeptical examination. But for the most part they don't. DEI is often presented more often anyway as a premise that stands in no need of careful examination, scrupulous argument or meticulously sifted evidence, rather it relies on exemplification or persuasion by means of illustration.
Ibram X Kendi's book Stamped from the Beginning: The Definitive History of Racist Ideas in America where Nicole Hannah-Jones has edited volume, The 1619 Project and New Origins Store are works of this sort. They're long and detailed and give the luster of scholarship but very little of its substance. I mention them mostly because they're among the most substantial intellectual pillars of the DEI movement. DEI is a doctrine that combines a melange of claims about racial injustice in the United States. It would take days to unpack all of it, but essentially it depicts American society as a racial hierarchy or, as Isabel Wilkerson puts it, a caste system founded on self-perpetuating injustices. Racism is supposedly everywhere and always has been, every aspect of the American social order expresses this underlying reality. DEI, of course, has colonized cultural territory beyond race, but it now extends to all marginalized or supposedly oppressed subgroups, non-white ethnicities, sexes, genders, gender preferences, sizes, handicaps, and neurodivergences.
DEI, in other words, has become a conceptual empire composed of the supposedly dispossessed. And like most empires, it does not welcome criticism or dissent. Moreover, it presents itself as an orthodoxy garbed in righteousness. The result of that is that it's often been presented in higher education as a full and adequate justification for preferences in student admissions, faculty hiring, curriculum development, course syllabi, grading, the organization of student life, disciplinary policies and informally what has come to be called cancel culture. A simple translation of DEI is that it is racism straight up. The less simple translation is that it is racism that has velcroed itself to a host of other disappointments and grievances so that it can appear as an all-purpose response to the profound unfairness of America and an encompassing rejection of the principle of merit.
The Trump administration has recognized how DEI has become a pervasive form of illiberal indoctrination in education at every level. Accordingly, the administration has issued a series of executive orders, among these are ending radical and wasteful government DEI programs and preferencing, ending illegal discrimination and restoring merit-based opportunity, ending radical indoctrination in K-12 schooling and restoring equality of opportunity and meritocracy. And there are about five others of these. Some of these executive orders may fall to adverse decisions in the federal courts, some of them may be reinforced by acts of Congress, but they are all now part of the legal environment that the University of California must negotiate. I take them as a mostly welcome clarification of what the Equal Protection Clause of the 14th Amendment said, as well as the Title VII of the Civil Rights Act and the US Supreme Court's position in its decision in the Students for Fair Admission versus Harvard and the University of North Carolina.
I'll draw all this together, academic freedom is based on the concept of merit. Approaching merit requires strenuous and scrupulous efforts to discern the truth. That is mostly a matter of individual effort and ability. DEI, by contrast, is about group identity. Academic freedom is based on merit, DEI is based on rejecting merit, they are irreconcilable.Natasha Warikoo:
And I see that questions are coming in and some interesting differences between Professor Powell, Professor Wood in terms of the definitions of DEI that I think we'll get to in a few minutes. But first I want to bring Brian Soucek into the conversation about the relationship between academic freedom and DEI as you understand it.Brian Soucek:
Thanks, Natasha, and thank you for being here with us and moderating us today. Are there potential collisions, tensions between academic freedom and DEI, the wide variety of DEI initiatives that exist in the world? Well, sure, of course there are potential collisions. There are also collisions, both potential and actual, between academic freedom and prior practices within universities that didn't prioritize or in some cases actively worked against diversity, equity and inclusion. The decades we spent actively excluding any number of populations within higher education had an enormous effect on academic freedom, not just the academic freedom of those who were excluded from participating, but the way in which academic freedom depends on the kind of robust and diverse set of opinions and backgrounds and experiences that Danielle Allen was talking about earlier today, etc.
And so there's not a neutral position when it comes to DEI. Whether you try to advance it, as the University of California has been doing for the last couple of decades, whether you remain blind to it, whether you actively work against it, there's not a neutral position among those. And so to me the question is what are we to do to try lessen those tensions or if possible, eliminate any potential tensions between our goal of advancing diversity, equity and inclusion and our robust commitment to academic freedom?
So just to zoom in a little bit, since there is such a wide variety of initiatives that fall within the DEI umbrella, let me just focus on one that I've written mostly about, and that's been important within the UC system and continues to be contested here. And that's the use of diversity statements, whether in hiring or in advancement. So this is a place where there are potential collisions or tensions between use of diversity statements and academic freedom. But to me, rather than just the call that we so often hear that that means they must automatically be abandoned, the far more important question is, well, how can they be done the right way so as to avoid or eliminate those kinds of tensions?
So for example, as system-wide recommendations here at UC now say in the use of diversity statements, this dates back three years now, we should be asking people not about their beliefs, but about their actions, their plans. This has a huge effect on the academic freedom tension in this area. For one thing, it just makes diversity statements more effective. People can bluff or lie about their beliefs, but their actions are something they've either done or they haven't done.
And in some ways, even more importantly, by asking about actions rather than beliefs, it leaves open this space outside of a diversity statement for people to freely express their beliefs about the value of diversity, you can do your job as UC defines it, you can advance what the university sees as its mission and say all the ways that you've done so while at the same time outside, just as in any other area like teaching or anywhere else, you can be out there in the faculty senate or in an op-ed pages of the New York Times saying that UC puts too much emphasis on this or the emphasis we put we carry out in ways that are ineffective. There's no collision there if you're being asked about actions rather than beliefs.
Similarly, if schools avoid having some kind of one-size-fits-all correct answer to the notion of a diversity statement, avoid some kind of university-wide rubric and instead has them evaluated bottom-up by the experts within each individual field where they presumably know what the DEI gaps or challenges are and can evaluate whether the things people are doing to fill those gaps or meet those needs are effective, that makes an analysis of diversity statements and evaluation of diversity statements deeply analogous to all the other kinds of peer evaluations that we do that are at the very heart of what academic freedom means.
And finally, I'd say that if DEI policies generally, diversity statements in particular, are decided through robust shared governance, then that avoids the problem and the criticism we often hear that these are initiatives that are just top-down mandates by bureaucrats, by administrators. I think we might talk about later in the panel, I think UC has a really admirable tradition here of at least 20 years of really robust shared governance that has gotten us to the point we are in regard to DEI generally and diversity statements in particular. Unfortunately earlier this year in March, there was a bit of a breakdown in shared governance when the regents unilaterally decided to end the use of diversity statements in hiring, not in advancement. So we received a letter in March from Provost Newman saying, "I write at the request of President Drake to inform you about a decision by the UC Board of Regents to change the university's practices," with regard to our use of diversity statements.
This was not discussed in any open meeting of the regents. This was not part of a coordinated conversation with the faculty, with the Academic Senate. And so that's an academic freedom problem just as it's an academic freedom problem, in fact, a crisis when external operators, when politicians, donors, the president try to step in and tell a university like the University of California what its mission should be and how within the bounds of the law, and we can come back to the question of why we are within the bounds of the law, contrary to what Peter just said, but why within that space we shouldn't have the institutional autonomy to decide what's important to us as a public university serving California.
Natasha Warikoo:
Thank you. And I really appreciate your bringing in the very local context of the UC system and some of the specific example of the statement. So I want to just dig into this question of what policies and practices specifically we're talking about. And so Brian, that was very helpful that you talked about the statements because I heard very different definitions between John and Peter in terms of what exactly we're talking about, and maybe that's going to be helpful. So John, I heard you talking about pluralism, feelings of inclusion, equity and the equity of opportunity versus outcome. And Peter, I heard you talking about, I heard you say bureaucratic policies and then sometimes academic freedom of covering sort of ideological projects.
And I'd love for the two of you to respond to each other and just talk maybe more specifically about what are the policies and practices that you think are beneficial to the universities to help maintain academic freedom related to this varied umbrella, and I appreciated Danielle Allen saying, "Well, this phrase has decreasing utility because we mean such different things by it," but maybe you could say a little bit about how you see these policies and any response to the other panelists in terms of this issue?john a. powell:
Well, I'll jump in. So first of all, I mean, at least from my perspective, any serious look at core values, core words invites something deeper than just a quick dismissal. And that's why I sort of started with equality. I mean, it's interesting, people may not know that Lincoln partially in the Gettysburg address criticized the US founding documents because he felt like equality did not really play a substantial role in our constitution in the midst of enslavement of a lot of people and was calling for new birth of freedom. And he was also challenging Jefferson's understanding of equality.
I say that not because Lincoln was right and Jefferson was wrong, but these are really complex subtle concepts. We throw them around like we all know what we're talking about, we don't. And that's the only reason I went back to Aristotle, it's not as simple, no one, I think, calls Aristotle duplicitous. And when the Supreme Court took up the case Brown v. Board of Education, it tried to figure out what the drafters really meant, thought about equality and race and basically said they couldn't figure it out, that he had nine people spending a lot of time, inviting a lot of briefs and they said it's too either remote and or complicated and what we do now is sort of slogans DEI.
First of all, if you do a word search and go back to the use of words, let's start with diversity. Diversity was largely not present in the US lexicon until the case coming from Brian's neck of the woods, Bakke v. UC, Davis. And the case was not framed as a diversity case, the case was framed as a civil rights case and Powell rejected it as the civil rights case. And I want to get into all the details, I mean, I think this is supposed to be a discussion, not really a lecture, but basically Powell really changed the law a lot. Up until then the Supreme Court had held that one of the purposes of the court was to protect discrete and insular minorities, that had come from a 1930s case. And what Powell said in Bakke, he rejected that after 50 years, he said, "There is no discrete and insular minority. We're a country of minorities and therefore the court has no specific roles in terms of protecting any one group as opposed to the other."
And then he said something else, he said, "There is such a thing as societal discrimination, I acknowledge that, but it's too amorphous and so we can't use it," so he rejected that. So he was rejecting and then he said, "We can use, and the universities have a special role if they want to promote diversity." That's when diversity really took on its current robustness, if you will. Literally, if you go back before that decision, it's almost no discussion of diversity. And then there was a huge discussion of diversity without ever really in the first couple of years, most of the, what I'm calling civil rights communities, was criticizing diversity as a sub-diffuse from talking about discrimination. They were really talking about race and talking about specifically Blacks, but others being locked out of our society and being a need to address that.
Last thing I'll say in terms of history, most of the civil rights legislation that we take for granted now is passed under Lyndon B. Johnson. Go back and read what Johnson had to say about these things. What is Johnson's understanding of what he was doing when he was pushing the civil rights movement, when he was pushing Title VII, when he was pushing Title VI, when he was pushing Title XIII? Not that his understanding is the end of the story, but it's significant. It's very different than the way we talk about it today, and he certainly would not have said diversity is illegal. In fact, he said just the opposite and he rejected, expressly rejected the notion of color blindness, as did the court initially.
So again, part of the challenge is for us to wrestle with this in terms of who we are, what kind of society we want to live in, not just in terms of the law, the law is important, but also in terms of our larger society, the normative cause that I think Daniel spoke to today. And just to be crude and to the point, I have studied these things many years, obviously studied the Greeks, studied the Romans study and we had people who disagree with me in terms of what do we mean by equality? What do we mean by diversity? What do we mean by plurality? What do we mean by democracy? These are really heavy questions.
I've never read anything written by President Trump on these issues. I mean, I read the executive orders, but from my perspective, to be honest, he's not a scholar, it's not a serious discussion, he's not seriously engaging these issues, it's political football. So when you have Christopher Rufo saying, "As a strategy, I'm going to make the concept of critical race theory and diversity, equity inclusion poison in the American discourse," he's not saying, "I'm going to do an extra thesis and really help people understand it", no, I'm going to use this as a wedge issue. And that's where we are right now. And it's a little bit disheartening to have this discussion as if now all of a sudden Christopher Rufo and then he obviously has a huge influence in the Trump administration, is now defining what Aristotle meant, he's not. And I'm not saying I got it all right, but I know that's not the answer.
And so I think we are a pluralistic society and the thing that Bakke, it was a medical school issue, and much of the civil rights movement was trying to address was our history and the history of locking out formally a large part of the population and enslaving a large part. That's our history. It was trying to address that and President Johnson is explicit that we have to address that, and as a society we refuse to address it. Instead, I'm giving a talk tomorrow to a foundation and one of the questions I ask them is this, when is it right and fair to treat everybody the same? When is it right and fair to treat people differently? And again, very simple question, but if you think about it, they're not obvious answers. And then you can have some concrete examples, and I'll just give you one then I'll stop.
I talk about if you have three children and one of them has strep throat, you go to the doctor to get some medicine for strep throat, you don't come home and distribute it evenly between your three children. People would say it's bad parenting. Why? Because they're situated differently because they have different needs. And so geometric equality is what Aristotle would say you notice, so when is it important to notice people's differences?
So I think these are serious questions. I don't think the current environment from my perspective really invites a serious discussion. I think in fact, I've not disagreed with a lot of what Peter said, I think it invites some issues and I don't think it's because people are just tricksters and trying to avoid, but because there's a threat. So when the president says, "I'm going to take your money unless you do what I say," and the courts, a number of the courts have already ruled that you can't do that, you can't do that, you can't talk about academic freedom or freedom of speech or political process, you can't just by fiat say, "Diversity, equity and inclusion is bad. I'm declaring it's illegal and I'm going to take all your money away unless you do what I say." And then it's just the hypocrisy of that that's a serious discussion.That's a power move, but it's not a serious examination of what kind of society we have or should have.
Peter W. Wood:
Okay, well, I don't know where the courts will end up on this. You may be right, I said that before. I very much welcome your bringing history into this, especially the Bakke decision. Like you, I've spent many years working on this issue. First a little bit of history of my own organization which comes into this, we were founded in 1987 and from the very start opposed racial preferences. It was the National Association of Scholars that devised what became Proposition 209 in California. Long before I ever heard of Donald Trump, and certainly long before Christopher Rufo was born, NAS has been fighting against racial preferences and using the tools of law to do so, fighting against racial preferences in favor of what? In favor of establishing the principle of merit and treating all people equally by those principles of merit.
Differently situated of course, every individual is differently situated, treating individuals as differently situated is different from treating whole groups as differently situated and imposing on those groups the power of bureaucrats who get to determine who is in the group, who is not in the group, and how the rules will be applied. That's pretty much the area where I operate.
Now, on the word diversity, it really does deserve a little bit of attention here. It's not a new word in the English language. For many centuries it was a word that came very close to meaning civil war. To say that a country was diverse meant that it was ill-governed, and you can find centuries of quotations in the Oxford English Dictionary to substantiate that, that was its primary meaning. You cannot find diversity of course in any of the American founding documents. The closest you can come to the idea is in Federalist number 10, where the closest synonym for it is faction, and faction is something definitely to be fought against in the governance of the country.
How does diversity begin to gain a positive connotation? The answer is Charles Darwin. It turns out that Darwin found in diversity of species or the members of a species a positive cause for further evolution. And with Darwin's influence through social Darwinism and the like, we began by the early 20th century defined diversity a more positive connotation. But when Justice Powell hauled diversity out of the amicus brief filed by Harvard and several other universities, he could not find a single other Justice on the Supreme Court to agree with him. That portion of the decision that he wrote in the Bakke case was set aside, it was dicta from the Supreme Court, something that one Justice had said and no other Justice agreed with. And as you noted, it felt like a lead weight when it was issued. No proponents in the civil rights community thought this diversity idea had any merit at all, and they opposed it wrongly.
It wasn't until several years later, Bakke is in 1978, the first positive use of his decision I can find was 1983 when the affirmative action office at the University of Pennsylvania renamed itself Diversity Office. Why did it do so? You can read about it. It did so because they were afraid that the Reagan Supreme Court was going to knock down affirmative action and they needed some alternative path to keep racial preferences alive. So that's when Bakke's decision came to life. It remained without any substantial Supreme Court backing all the way up to Sandra Day O'Connor's opinion in the Grutter case in 2003. And that's when we begin to get the diversity doctrine written as a substantial law which the rest of the country has to follow. That, of course, was a highly disputed opinion on the Supreme Court. O'Connor got the majority, but she also put a 25-year clock on it and said, "After 25 years, we will no longer need this run around of the Constitution."
Anyway, there is a long history here to be told, not just about the word, but about the concept and the way that it's been employed in American higher education. It has gained the status that it has by means of the academic community, which found it to be a highly useful way to avoid the letter of the law, which is exactly what it has done with Proposition 209. The proponents of racial preferences have tried almost every year since to find some way to get the courts to overturn it, to set it aside, to get a new referendum going and have failed every single time. Why have they failed? Because the majority of Californians, let alone the majority of people in the United States, hate this idea. They do not want to see racial employed in the workforce, in the government and in the schools.
Who favors it? Well, you folks favor it, you folks who are on this call, most of the people who are probably listening to this broadcast, the University of California is in love with the idea, they've used it, they've enjoyed being able to smirk at the popular will of the people for more than two decades now, and I'm sure they will continue to do so. It's a great tool if you want to hold the power to tell the American people what they must do rather than listen to what the American people want to do. I have no particular brief for President Trump or for Christopher Rufo, they are what we kind influential people and powerful people, but the cause that they've adjoined to is a cause that I've advocated for decades long before they appeared on the scene. So don't put me as someone who is simply an expositor of their views, because I'm not.
Natasha Warikoo:
I appreciate this discussion and I want to just broaden it a little bit beyond this issue of affirmative action, and I know California has a long history in thinking about this issue and in the UCs in particular. And I want to bring in Brian here to just talk a little bit, you have a lot of expertise, particularly in University of California, and you talked about the kind of institutional mission and the work of the university. Could you say add a little specificity to the work that you're talking, that you talked about the actions with respect to the mission of the UC system with respect to this question of diversity and what does that mean and pluralism and beyond and looking maybe beyond this question of affirmative action?Brian Soucek:
Sure. I mean, just as a starting point, it well may be that, going back to your previous question, that the term DEI has become so toxic and so weaponized that it just isn't useful because people aren't able to think down to what it might possibly mean beyond the talking points. But I think if we step back from that and ask whether a school like the University of California should care about who benefits from its teaching and who benefits from its research, that becomes a thing that if I don't just say, "Do you support DEI or not?" If I go and ask people, "Does it matter? Does our concept of academic merit, should that be abstracted from questions about who benefits from my teaching, who flourishes in my classes, and whether a population as diverse as California's benefits from the sort of research that goes on at this institution that they help fund?" I think people are going to have a very different answer.
And that's the kind of conversation that you see started having more explicitly in the wake of Prop 209, in the wake of that statewide discussion. So 20 years ago, in 2004, I think it was, the then president of UC established a committee that put together what eventually became the UC's Diversity Statement. It's now Regions Policy 4400. It defines diversity both in a very broad sense about the different kinds of viewpoints that stem from different experiences, people of different races, ethnicities, religions, geography, on and on and on. And then at the end of the statement has a narrower version of diversity where it talks about being especially mindful of populations that are currently underrepresented and historically have been excluded and wanting to put a special focus on making sure that what we do benefits them.
Now, that statement says that diversity is integral to the university's achievement of excellence, right? So this is something internal to what we do, not some kind of added-on thing. And at that same time, the faculty senate, the Academic Senate here at UC began what are pretty wonky revisions, but this is what shared governance is, right? It's a lot of wordsmithing of policies, of debating what it means, what academic merit, how it's going to be defined and evaluated at throughout our system. And so there was intense attention to our academic personnel manual, section 2101d, which defines academic merit both for hiring for advancement. And it tried to recognize that if diversity is integral to the university's achievement of excellence, then contributions to diversity, things that help your teaching reach a more diverse public, your research reach a more diverse public, mentorship of a diverse population, all of that should be seen as a way of advancing the university's mission and thus should be rewarded.
And if that's the position, which seems to follow to me straight from the mission, "Here's our mission, contributions to that mission should be rewarded," well, then the university needs to know about them and that's how we got to diversity statements, which were first used, I think it's San Diego in 2009. So this is a long process. After that, there was 10 years of revisions to APM 2101d, and that's how much discussion was going on because there were real concerns at the beginning that by enshrining this in the manual, it might privilege, let's just say people like me and John that write about this kind of stuff, people that this is their research area. It seemed like if we are rewarding contributions to diversity, does that mean that people that do equal protection type work are going to have a leg up there compared to biologists? And they wanted to be clear, no, no, it's much, much broader than that. It crucially involves the kind of mentorship that has formerly been disproportionately born and not fully recognized within our system.
So I think what that history says is that it's question begging to just assume, as many critics often do, that contributions to diversity are somehow extraneous to academic merit. So when somebody says, "We just need to be judging people on their merit," well, I need an account for why the things I do to more accurately reach my diverse set of students isn't part of me being a good professor or why if our school is putting out to the kind of research that really is reaching a wide variety of populations within California, why that's not a benefit to our research profile, why that is not itself academic excellence? And I don't often hear that explanation, I just normally hear that answer being assumed.Natasha Warikoo:
I appreciate that very much. So John, I want to turn now to some of the institutions that are either academic institutions or adjacent, the AAUP or professional academic associations. And could you say a little bit about how some of these institutions are responding to the executive orders, the Dear Colleagues letter, the sort of bans on DEI, as unclear as that phrase is? And are there other actions that you think they could or should be doing in response to the federal actions?
john a. powell:
So a couple of things, I would make it clear... You're responding to the administration, right?Natasha Warikoo:
Yes.john a. powell:
Because federal government's larger than the administration.Natasha Warikoo:
Oh, sure, thank you.john a. powell:
Secondly, I think I tried to suggest this earlier, if there is such a thing, and maybe Brian might suggest there's not, but a dispassionate conversation, a serious conversation. So despite the going back and forth between me and Peter, Peter doesn't want to be lumped with Trump and Peter, I probably don't like being lumped with you people. But anyway, we could have disagreements, we could have a discussion, we could actually explore the history. I challenged the notion, for example, of when diversity became relevant. I think in terms of federalist papers, there's very much concern with factions, there's very much concerns with minorities, there's very much concern with protections, and it got picked up by the court. I don't want to get into it.
My point is this, it's the threat that's driving a lot of the action. You know what? People can believe that they're on the right side of the law, and if they have their day in court, which is more likely to turn into a decade and hundreds of thousands of dollars later, most people's like, "I don't want it. I don't want to be in court for the next five, 10 years. I don't want discovery when someone's going through all of my papers. I don't want my funds to be held up while we try to resolve this. What do I need to do?" Right?
So a lot of companies, and we've actually looked at them, institutions, a lot of them quietly will say, "We support the underlying values that's associated with diversity, equity, and inclusion, but we simply don't want to be in the crosshairs of the Trump administration," and basically saying they don't play fair. They're not asking questions that we can honestly answer and resolve it. Is there some things that would be beyond the pale? Probably, that's true about anything, that's not sort of a great secret that something's happening that maybe didn't quite fit every particular definition.
So what companies are doing, and I work with a lot of them, so I don't want to name them unless they named themselves, some of them are saying, "We're not changing. We think the law's on our side, we think what we're doing is legal. We've actually gone to court. We're not going to change." Some are saying, "We will change. We'll scrub our website, change our practices, we won't have any more interest groups. What else do we need to do?" And then there's those who are saying, "We're going to sort of keep doing what we're doing, but we're going to name it something different." And to Brian's point, maybe the words, the phrase itself has become so toxic, can we pick a different word, a different whatever that's less toxic? New York Times reported on this recently said, "Okay, instead of calling it DEI, can we call it belonging?" Interesting. I run the Othering and Belonging Institute, not the DEI Institute. And I said, "Yeah, no, maybe, not to just be cute, not just be sub-diffuse, but belonging means something. So if you use it, I really want you to mean something."
What I think is largely missing, because we had decades of companies, of schools, of cities, of groups saying diversity, equity, inclusion in some fashion is a good thing. And I used the analogy, if you have a leak in your roof, most of us will call a roofer and get the leak fixed. We wouldn't call the wrecking ball and say, "Destroy the house. My house has a defect." We would say, "Okay, how do we learn from some mistakes?" How do we do what Brian was saying, bring in all the voices and have a real discussion and see if we can learn each other and reach some common ground? We're not doing that right now. In order to do that, we have to talk about what is it that we're really trying to achieve through this protracted process, diversity, equity, and inclusion? What are some of the things that we made missteps? How can we improve?
Pluralism in some ways is pretty much baked into our DNA. We didn't create a state religion under the First Amendment because we didn't want to become a religious state, we wanted to be a pluralistic state. We rejected the notion for assimilation, because we, again, saw something different, we saw something richer, and we're still an experiment. So what's been missing in this discourse, back to your question, is that for those who really believe, and some don't, morally believe that DEI is wrong or whatever, but for those who believe there's some underlying value in terms of what we're trying to do, what is that? State it. State it publicly. We can't have a public discussion when people are afraid to talk. And right now, there's so much fear that even powerful people, powerful institutions, being very powerful, talking about billion dollar, even trillion dollar institutions, and that's not an exaggeration, will say stuff privately, but will not say stuff publicly because they're afraid of what would happen to them. And so it's hard to have a meaningful discussion to air this in such an environment.Natasha Warikoo:
Thank you. I want to just invite our audience to submit your questions into the Q&A, and we'll turn to the Q&A in just a few minutes. But before we do, I'd like to just open, ask our three panelists just to say a little bit about what's one thing you'd like to see perhaps in the UC system or otherwise related to some of these questions about, if we want to call it DEI, pluralism, inclusion, belonging, and as it intersects with academic freedom? So one prediction or hope for the future or action that you'd like to see in the coming years. Anyone can go first.Brian Soucek:
Well, one action I would like not to see is any further, what we might call anticipatory obedience on the part of UC to try to do what the Trump administration would like us to do before it even tries to force us to do so. So as John just said, these are issues that could take years and years to litigate if it comes to that, and in an ideal world, nobody wants to spend that kind of time and money. That's not what we're here for. But on the other hand, if these are values that are integral to our mission, we really have no other choice. And I'm not saying that we need to openly provoke the administration or anything like that, there's just unreal amounts of money at stake here and just such great research in all fields, not just the sciences, across the university that are really being threatened. And I very much understand and respect the administration and regent's desire to avoid those kinds of just horrible and very tangible threats. But on the other hand, we don't need to do the administration's work for them.
And so my hope is certainly that we've seen the kind of reaction that Harvard has gotten when it chose to stand up to the attacks being waged against it. I mean, we've seen both the positive, the amount of respect, the sigh of relief, the support they've received, including financial support, the donations that have surged, but we've also seen that the administration has doubled down in its funding cuts to them as a result. I hope they won't be left alone in that. I hope that our great public universities like UC will be joining in that, and other great private universities will also, in order to really stand up for these values that we've long proclaimed.
I think we've done a good job, a very good job historically, certainly in the case of non-citizen students and in fact many undocumented students when they've faced attacks, including in the prior Trump administration, we've led that litigation on behalf of DACA, preserving DACA on behalf of our Dreamers. And I just hope that we'll continue doing that both in standing up against the anti-DEI initiatives, but also the anti-trans initiatives. Right now, of course, we've got the trans ban in the military, we have any number of students who would love to get jobs, we're still hosting military recruiters because we're required to under threat of federal funding cuts.
And we just haven't heard quite enough of the university expressing its values in terms of, "These are our students." We hear a lot in the world right now about institutional neutrality, but even there among the people that call for universities to remain neutral, there's always the carve out that universities can, or in some cases, according to University of Chicago, must speak when their very mission is under threat. And that's what we're facing right now. And so I just want to be clear that these are the values that we do continue to see as being within our mission.
Natasha Warikoo:
Peter, do you want to jump in? Oh, sorry, go ahead, John. Sorry, I couldn't tell who was talking. Peter, go ahead.Peter W. Wood:
A piece of this I would like to pick up from both John and Brian is the fear of the cost of litigation and the complications that result from that. I've spent the last 20 years or so defending individuals caught up in litigation because they ran afoul of the DEI offices or the similarly situated authorities on their campus, have lost their jobs, have been punished in various ways. It seems to me bitterly ironic that you would be concerned about paying those costs when you've been imposing those costs on other people routinely for a generation or more.
What would I like to see in higher education in California in particular? Serious rethinking of the mission of the universities. Those missions have been severely compromised by the desire of the faculty, so much for shared governance, and by administrators to do whatever they could to thwart what the people of California voted into law in 1996 with Proposition 209. What California needs is a university that responds to the needs of the people of California rather than the faculty and administrators of California. And basically it's that simple.john a. powell:
Well, California is a great institution, I'm at Berkeley, and no institution is perfect, but California's a land-grant institution and by part of this charge as supposed to serve the people of California. And as we know, the plurality of the people in California are Latino, and the Latino needs, diverse group, it's not a singular group, but some of those needs are not attended to as much as they could have.
I think what makes the University of California great is both its research and its teaching, where we sort of applaud today more often than not is the sciences. And we have great science department, great engineering department, but we don't think so much about ethics, we don't think so much about humanities. And being here right next to it, right in Silicon Valley and every day we're talking about AI and literally if you listen to any of the social media, they're saying students need to learn to become versed in AI. I think, "Well, I'm not so sure about that." I think what we don't have enough groundedness in is humanities. The world is getting smaller and smaller in a sense, becoming more and more diverse, the diverse is becoming more and more functional, if you will, and we don't really have the tools to engage and understand each other. So I would hope the university would actually do that. I mean, one of my more recent books is, as you said, is Bridging, how do we learn to talk to people and institutions who disagree with us?
So I feel like what makes university great is it's this beacon for hope, but it's also teaching. And it's not just teaching for the students at Berkeley, but in a sense helping to teach for the world, not with hubris, but with humility, engage these things. Now, I understand, again, as a practical matter, you don't want to be in the area of the Trump administration, but I sometimes ask people, "What would you have done in 1933 Berlin, Germany?" And a lot of people like, "Yeah, I'd fight the good fight. I'd stand up to Hitler, I'd do this." I day, "What do you do in 2025 America?" So yes, there may be some costs.
And I think from my perspective, Peter, I don't know who the people that you're talking about, but when the government and the Justice Department and takes a role as aggressive as happening now, that's not fair, from my perspective, fair symmetry of saying some people were mistreated, where you have like what's happened at Harvard, what's happened at law firms saying, "I'm going to basically attack law firms that represent people I don't like." It is unparalleled. So in the midst of that, how does the university find its voice with others and stand up for what it really believes in? And again, not without open to criticism, not without open to discussion, but I think that can't be the end of it.
Natasha Warikoo:
Thank you. I'm going to turn to the Q&A and feel free to send in other questions as well. But I'll start with a question from Steve Brint. So Steve said, "I perceive a certain amount of bad faith in UC DEI policies," I'll try to summarize this, so that is a claim that all kinds of diversity are valued for purposes of not running afoul of Prop 209. We see this not only in the evaluation of diversity statements, but also in the Advancing Faculty Diversity program, Presidential Postdoc Fellows program, and the Equity Advisors program. So he wanted to ask John and Brian, whether you are certain that this kind of bad faith does not exist in UC policy? Either John or Brian.john a. powell:
So of course, I mean, university is a big institution, and then you have the UC system, which is the biggest. Is there some bad faith? Certainly. I mean, can you think of a large institution where you don't find some bad faith? What I try to help students move beyond, a cynicism and also frankly, beyond purity, that I'm not going to get involved in something unless it's exactly what I want it to be. But I don't think that's true with most of the people. I think the people are really sincere, they're trying to figure out something.
So yeah, I mean, I think, again, if you go into my own writing, I've written some critiques of the way people use equity that was problematic. That was way before Trump. And I've written less about that since Trump because it's like I don't want those two things to be conflated. But if we care about something, we have to be willing to engage and learn from it. That's part of being an educator, that's a part of being alive. But I don't attribute, at least to me in this climate, that would not be my major focus. But yes, I think certainly there's been some bad faith, but I don't think it's rampant.Brian Soucek:
Earlier I said that the way I would like to see, in the case of diversity statements, to see them operate is for each field to be thinking through what the gaps, the shortcomings are in their field. And of course, there are going to be some that cross over throughout the university, things that we might be doing poorly across the board. For example, in regard to different kinds of access to people with certain disabilities that have trouble reading our slides or things like that. There are things that cut across. But then there are just ways in which, my PhD is in philosophy, I was a philosopher of art, there were shortcomings in philosophy of art, there are shortcomings that are different from our shortcomings in law, and I have to imagine the shortcomings that you find in the math or biology departments. And I would like for people to focus on that.
And it's just going to be the case that in many of those fields, some of the biggest shortcomings do track the kinds of group divisions that have historically been the focus of discrimination, have received the most historical discrimination, been some of the most political powerlessness over time. So it shouldn't be a surprise that some of our diversity initiatives are going to focus on the groups that have experienced that kind of history.
But I think we often, too often have these kinds of conversations without considering the way that these sorts of initiatives help people with physical and mental disabilities, help people who are first-generation students. I mean, I certainly don't think these accusations of bad faith, if you think, Stephen, if you think that UC doesn't care about contributions that are made to make the place more inclusive, say to people with disabilities or first-gen students or that kind of thing, I disagree with that. And so we tend to focus on the areas that Peter Wood was targeting in Prop 209, race and gender. And sure, diversity doesn't mean just everything, but it should mean meeting the needs that are there, and those are actually quite broad.Natasha Warikoo:
I'll turn to another question, this is from an anonymous attendee. "Brian mentioned having diversity statements focus more on actions than beliefs. However, don't actions stem from beliefs? Therefore, wouldn't diversity statements that focus on actions still reflect the applicant's belief?" Let me just clarify that.Brian Soucek:
So every three years when I get reviewed for my next raise, I also have to report on my teaching, right? I've got a teaching statement. I report on my actions. What classes did I teach? How did I revise my syllabi? Did I make new course materials? What were my student teaching evaluations? All that kind of thing. What I'm not being asked to do is saying something like, "I think teaching is the most important part of my job and I wish I could do more of it," or something like that. And in fact, because I'm just reporting on what I've done, I can without any hypocrisy outside of my teaching statement show up at a Academic Senate meeting or write a letter to the editor of my local paper saying, "My teaching load is way too high and UC is forcing us to put our teaching ahead of our research and that's hurting our mission," something like that.
I just think of diversity statements as analogous to that. Even as academics, we have jobs and jobs come with performance evaluations of how well you've advanced the mission of your institution. We tend to think that we're not like other workers, but in many ways we are. You could have somebody at the widget factory and you could talk about their commitment to their job, and I think this often gets confused in talk of contributions to diversity because there's two ways in which you can be committed to your job, even at the widget factory. One is you really believe in widgets and think widgets are helping save the world, and I'm committed to making widgets in that sense. The other is I show up to work every day at the factory on time, and I hardly ever miss a day and I produce a lot of widgets and my boss could say, "Wow, you're a really committed worker." And there's that sense in which we are advancing the mission of this particular university and we might do so while also criticizing the mission of this university. And I just don't think those two things are incompatible.Natasha Warikoo:
So we are almost out of time. I want to just invite the panelists, if you have one last 30 seconds, a minute max thoughts that you wanted to share related to these questions of DEI an, bring it back to academic freedom, I want to invite you to do so before we close out.Peter W. Wood:
I-john a. powell:
Go ahead, ahead.Peter W. Wood:
I was going to say we've talked about the conflict between academic freedom, or maybe not conflict between academic freedom and DEI depending on where we are situated. But I wanted to say that academic freedom, though it is an essential value of higher education, it's not the only value. Diversity of ideas is equally important. There is a certain knowledge of hierarchy that knowledge is better than ignorance and that some knowledge is better than other knowledge, distinctions made between levels and depths of understanding, that kind of hierarchy is essential to higher education. There's a notion of the integrity of the individual, which is indispensable. When we talk about higher education. We could be having the same conversation and debate about the conflicts between DEI and those values as well. One area where we probably wouldn't conflict, or at least I don't think we would so much, is the importance of civility in higher education. There is no university without it. We can have a conversation in which we vigorously disagree with each other, but we're not losing our ability to treat one another with basic respect.
And I did make mention of, and I want to reiterate, the importance of seeking truth as the foundation of the university. Now, that may or may not be compatible with DEI, but we can talk about the pursuit of truth in manners that go beyond simply academic freedom. It's a core value to why this institution exists in the first place. So my concluding statement is that there's a lot more here to be talked about and I appreciate your having invited me.Natasha Warikoo:
Appreciate that, bringing us some of the things that hopefully most of us in the room can agree on. John or Brian, any very quick thoughts before we close out?john a. powell:
Yeah, Natasha, I'll add something very quickly. So first of all, thank you and thank the other panelists and the people who joined us online. As you know, I'm the Director of the Othering and Belonging Institute, and we say our moonshot is to create a world where everyone belongs and no one is othered in the next 15 years as a norm, as a norm where everyone belongs. And it's similar to think about everyone having dignity. And I think that's appropriate, I can say a lot more about that. And we're not just talking about individuals, but we're also talking about categories, people exist and how we treat different categories of people. Former colleague of mine who's passed, Charles Tilley, talks about durable inequality at a categorical level, which is very different than individual inequality. But anyway, I think there's much more to be said I'm glad we're doing this and I'm looking forward to the UC system, but also UC, Berkeley taking a real leadership in this environment.Brian Soucek:
Well, I can't improve on that, so we should close out.Natasha Warikoo:
All right. All right, well, thank you all so much for your remarks and thank you to everyone who joined us. All right, so just a reminder that the next panel will be in a different Zoom meeting, so you'll have to close out of this one. And thank you all for being here.
