This post appears here courtesy of The James G. Martin Center
. The author of this post is Louis K. Bonham
At long last, some state legislatures have begun reacting to the "wokeness"
epidemic that has consumed both K-12 and higher education.
Unfortunately, many of these bills are likely doomed to accomplish little or nothing because they fail to address an essential issue: enforcement. Particularly in the context of public universities, expecting state employees to simply obey laws that forbid practices they consider moral imperatives is naïve.
Take California's ban on affirmative action. For decades, it has been illegal for California institutions to give racial preference in admissions, hiring, or contracting. Despite this clear, politically popular law, have California state universities ended their use of racial preferences? Anyone familiar with the UC System will tell you they have not.
Instead, state employees violate the law and continue such practices. UC Berkeley's law-school dean, Erwin Chemerinsky, typifies this prevailing attitude. In a recently surfaced video from earlier this year, this head of a public law school admits he and his school violate California law, via a process he calls "unstated affirmative action"
What I mean by unstated affirmative action is: What if the college or university doesn't tell anybody, doesn't make any public statements? [...] I'll give you an example from our law school, but if ever I'm deposed I'm going to deny I said this to you. When we do faculty hiring, we're quite conscious that diversity is important to us, and we say diversity is important, it's fine to say that. But I'm very careful, when we have a Faculty Appointments Committee meeting, anytime somebody says, "You know, we should really prefer this candidate over this candidate because this person would add diversity," I say, "Don't say that. You can think it. You can vote it. But our discussions are not privileged, so don't ever articulate that that's what you're doing."
Let's take a moment to unpack this admission. Per Dean Chemerinsky, not only is UC Berkeley School of Law routinely violating the letter of Proposition 209 by using racial preferences in hiring, but administration believes that as long as no one actually says that that is what they are doing, such intentional violations of the law are justified. That is, of course, not the law.
Dean Chemerinsky is hardly alone in his scofflaw attitude. In the wake of John Sailer's bombshell report about DEI statements being used as ideological litmus tests in hiring at Texas Tech University, it became obvious that the use of such metrics would soon be banned at Texas state universities, either legislatively or through executive action.
What was the response of university administrators? Again captured on video
(beginning at the 30:33 mark), Texas A&M Assistant Provost for Diversity Annie McGowan summed up the prevailing attitude: The university could evade any legal ban on DEI statements by asking the same things in interview questions, thus preserving the ability to "do the work."
University of Texas President Jay Hartzell has a similarly documented lack of respect for the law, at least as it conflicts with his DEI objectives. Again caught on video, Hartzell publicly defended the preferential-hiring initiatives that his administration implemented on the grounds that they are necessary to secure an adequate number of faculty "role models"
for various "underrepresented"
identity groups. That the Supreme Court rejected that rationale decades ago as illegal matters not.
What drives this institutionalized contempt for the law is hardly occult. As Cornell law-school professor Bill Jacobson recently observed in the wake of the Supreme Court's Students for Fair Admissions decision:
Anybody who thinks that affirmative [action is going away] ... is kidding themselves. These universities are completely addicted to racial preferences. It is part of their core philosophy on life. It is part of their core being. It's why diversity, equity, and inclusion has become a religion on campuses. They are not going to give this up.
Why do administrators such as Chemerinsky, McGowan, and Hartzell think they can brazenly admit to their past and intended future violations of the law? I believe it is because they know the deck is stacked in such a way that nothing will ever happen to them personally. Should someone pursue legal action against them, the taxpayers would pick up the tab for the administrators' legal defenses and any possible sanctions.
Long and short: These administrators face no downside for intentionally violating any anti-DEI law. Indeed, doing so allows them to virtue-signal and gain street cred among the wokesters for their willingness to "resist"
what they see as the "wrong"
kind of law.
Whether it is the new constitutional bans on affirmative action in admissions, long established (but oft-ignored) bans on racial preferences in hiring, or laws prohibiting DEI practices, history teaches that absent concrete legal consequences for violating the law, university administrators will simply wink at the legislature while continuing to follow what they consider to be the path of moral righteousness.
The problem with most of the anti-DEI bills passed so far is that they essentially rely on only three enforcement mechanisms: moral suasion (i.e., that university administrators will obey the law because it is "the law"
), limited funding cuts, and prohibitions of specific offices or positions. None of these address the root issue by creating disincentives for involved individuals to ignore violations of the law or efforts to circumvent it.
Reliance on moral suasion in this area is a fool's errand: The prevailing attitude in academia is that anti-DEI laws are immoral, and thus violating them is in fact moral.
Limited funding cuts and formal bans on diversity positions may evoke howls of protest from university administrators, but, given that money is fungible, it remains to be seen whether such defunding will have any real impact-or instead will be met by covertly shifting resources around to preserve DEI activities and positions under other names.
For example, my sources report that, in response to Texas's recent ban on DEI in state universities (SB17), the University of Texas is quietly preparing to rebrand much of its DEI infrastructure as "research,"
the better to take advantage of a loophole that was inserted in the law. (As I have explained elsewhere, SB17 was sabotaged by a faction of Texas House Republicans, and the version that ultimately went into law is a toothless Potemkin structure.)
So, what could be effective enforcement mechanisms for anti-DEI legislation? To be effective, any consequences must focus not on the institutions but on the individuals who are engaged in illegal behavior or have been charged with preventing or redressing it.
Mandatory suspension / termination of employment. This remedy was in an early version of Texas SB17: Employees of state institutions found to have knowingly violated the law or allowed violations of the law must be suspended for one year without pay or benefits, and could not be employed by other Texas state universities during their suspension. A finding of a second violation required permanent termination, including loss of tenure, with the violator ineligible for employment by any Texas state university.
Individual liability. Make those who knowingly violate the law (either directly or by failing to stop it) or conspire to violate the law subject to individual liability for statutory damages, with no legal immunity and no reimbursement from their employer. Again, an early draft of SB17 provided such a remedy, which would have imposed individual liability of at least $10,000 for each violation of the law, plus attorneys' fees.
Prohibitions on accreditor conduct. Another loophole in some DEI laws that universities appear ready to exploit involves activities they claim are necessary to obtain or preserve their accreditation. Anti-DEI laws should thus make it clear not only that schools are not authorized to violate the law in the name of accreditation, but that accreditors and the individuals acting for them within the state are also prohibited from asking or requiring schools to violate applicable state law (with statutory damages against accreditors and their employees if they do so).
Private rights of action. Who enforces the law? Absent meaningful penalties on the individuals who fail to do so, expecting universities to police their own in this area is delusional. That problem could be solved by enlisting members of the public to serve as private attorneys general, by granting individuals standing to bring private lawsuits in the state's name to prosecute violations of the law and recover the damages provided by the law and/or to recoup illegal expenditures. (Federal qui tam law provides a model.)
Perjury prosecutions. In order to obtain federal funding and eligibility for their students' loans, universities have long been required to certify (i.e., have someone sign under penalty of perjury) that they do not violate federal anti-discrimination laws. Similarly, anti-DEI laws could require certification by each university system's governing board that their institutions are in compliance with such laws as a condition precedent to receiving state funds. Assuming the political will exists to prosecute violators, this would create a strong incentive for officials to look carefully for continuing DEI activity. (It appears that, in some states, the political will to do so may well exist. See, for example, Ohio Attorney General Dave Yost's recent warning to state employees regarding the legal consequences of violating the Supreme Court's SFFA holding.)
These are a few ideas on how to give anti-DEI laws some teeth. The key is to remember that DEI advocates are unlikely to accede to something as banal as a law they disagree with. Unless such laws create serious consequences and disincentives for the individuals who violate them, we'll see widespread efforts to circumvent if not openly disobey them.
Louis K. Bonham is an intellectual property litigator. He is a graduate of the University of Texas (B.A. '83, J.D. '86), was an articles editor on the Texas Law Review, and served as a law clerk to the Hon. Edith H. Jones of the U.S. Court of Appeals for the Fifth Circuit.