Catholic University Law Review


In the 1950s and 1960s in many parts of the country, a professor could be fired or never hired if he refused to denounce communism or declare loyalty to the United States Constitution. The University of California system took the lead in enforcing these loyalty oaths. These loyalty oaths were challenged all the way up to the United States Supreme Court and were soundly rejected, establishing the centrality of academic freedom and open inquiry on the university campus. So why are loyalty oaths making their resurgence in the form of mandatory diversity statements? Universities have begun requiring faculty members to declare fealty to a particular worldview and approach towards matters of diversity. In an irony that appears to be missed on campus diversity bureaucrats, these statements are being deployed in the name of diversity. And in another historical irony, this trend has once again been spearheaded in the University of California system. While these diversity statement were initially conceived of as just an additional factor to be weighed along with academic merit, teaching, and service, the purpose and use of these statements has radically morphed over the past few years. At some of the campuses today, a prospective professor who does not produce a diversity statement that will satisfy diversity bureaucrats, will be excluded from consideration without a review of any other aspect of his application. And the rubrics that are being deployed engage in blatant viewpoint discrimination, as well as a viewpoint based evaluation of the applicant’s research. At these campuses, it is unlikely, for instance, that an aspiring professor who shares the viewpoint Chief Justice Roberts that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” could be hired. Can a university employ such viewpoint based criterion in its hiring process, or do the First Amendment rights of individual professors foreclose such viewpoint based discrimination?

This article examines this question in the context of the long standing debate over the First Amendment rights of Professors, and trends in academia that have undermine professorial academic freedom. It argues that diversity statements must be carefully scrutinized by Courts and that if they are being used as ideological litmus tests, as they clearly are at the University of California, they must be struck down as unconstitutional.