ProfessorBainbridge.com

Some University of California faculty are pushing back against mandatory diversity statements

Regular readers will recall my post about my diversity statement, which I was required by the UC system to submit as part of the package for a pending merit raise review. You'll also recall my posts (e.g., here) expressing concern that these statements effectively impose a mandatory political litmus test. As I pointed out:

Even the relentless liberal Daily Bruin student newspaper recognized this basic fact (emphasis supplied):

UCLA is a public, academic setting, an environment meant to support a diverse range of ideas and viewpoints towards all issues – within reason – with the knowledge that they enrich our campus. EDI statements stifle this diversity by limiting qualified new hires to social activists who mirror administrators’ agendas. Even if these activists are doing good, exclusively hiring them is a subtraction from the marketplace of ideas and a slippery slope toward further homogenization of dialogue – an unavoidable end incongruent with the diversity goals UCLA claims to be striving for. ...

The “EDI Statement FAQs” document claims the statements are “not about penalizing faculty who do not promote EDI,” but that’s difficult to substantiate when they’re quite literally metricizing someone’s quality based on these standards.

The post setting out my statement went viral, ending up in the Wall Street Journal's Notable and Quotable column.

I don't know if my speaking out had any impact, but I have heard the at UC Davis a group of faculty is gathering signatures in support of the following resolution:

Resolved: 'Diversity, Equity and Inclusion Statements shall not be mandatory for the appointment or for the advancement of faculty. ‘  

The proponents have set up a website with background information and university documents on how these statements are to be evaluated. The documentation makes it clear that the diversity statements are being scored and that a low score will be disqualifying. 

It also looks like the pushback may have gotten the attention of the Regents. The agenda for the closed session of their next meeting includes an item on "Legal Considerations Relating to Faculty Diversity Item." The UCLA Faculty Association blog speculates:

The full Board’s second meeting in the open session on January 23 includes discussion of the “State of Title IX” and “Faculty Recruitment, Retention and Diversity.” But there seems to be a follow-up in the closed session that comes after the open one regarding “Legal Considerations Relating to Faculty Diversity Item.” In that seeming follow-up, it appears that some kind of litigation is pending or potentially pending. Whether the reference is to faculty diversity statements that are now being required at UC in many academic personnel actions is unclear. As prior posts on this blog have noted, there has been controversy about those diversity statements in national news media.* Are the statements being challenged through possible litigation? It would be nice to know, although it appears we won't. Note that there is a recent history of "surprise" items popping up on the Regents' agenda.

Two thoughts on possible legal challenges. First, Brian Leiter posted that he had been contacted by lawyers looking to challenge these statements and inviting faculty to contact him. Second, several conservative public interest law firms contacted me after my post went viral. They are definitely interested.

So watch this space.

PS: No news yet on whether I'll get that merit raise.

Commissioner Robert Jackson leaving the SEC to return to NYU Law

Bloomberg:

Robert Jackson Jr. said he will step down from the U.S. Securities and Exchange Commission next month to return to teaching, leaving Wall Street’s main regulator with an open Democratic seat as Republicans push to dial back rules before November’s elections.

Since joining the SEC in January 2018, Jackson has often led opposition to policies pushed by Chairman Jay Clayton, including last year’s landmark move to overhaul conduct standards for brokers and investment advisers. At the same time, he and Clayton -- both political independents -- worked together to approve enforcement actions in the face of objections from the commission’s two Republicans.

Joan Heminway identifies some common mistakes Business Associations students make

Good advice to BA students:

• Agency rules and management rules in business associations law are often confused. Agency rules express the authority of a person to act on behalf of the firm in transactions with third parties--those who enter into transactions with the firm. For example, by default under the RUPA, each partner in a RUPA partnership is an agent of the partnership that can bind the partnership to contracts with others. Management rules, by contrast address the governance and control authority of a particular firm constituent within the governance structure of the firm. Thus, agency rules relate to authority that is outward-facing (pertaining to transactional parties) and management rules relate to authority that is inward-facing (pertaining to internal constituents of the firm). For example, by default under the RUPA, each partner has an equal right to manage the partnership.
  
  
• Similarly, the concept of "limited liability" is commonly understood to refer to the limited liability of a firm owner for the firm's obligations. For example, under the RUPA, each partner is jointly and severally liable for the obligations of the partnership, whereas under corporate law, shareholders are not personally liable for the corporation's obligations to third parties. Exculpation, which eliminates the monetary liability of directors in the corporate context, relates to corporate governance claims--legal actions for breach of the fiduciary duty of care. This is internal governance litigation that does not relate to corporate obligations to third parties. So, while exculpation does limit (eliminate) a director's personal liability for a breach of the duty of care, it is not part of what people generally refer to as "limited liability" in a corporate context.
  
  
• Fiduciary duties are typically understood to instill or increase trust in relationships. Accordingly, they are commonly employed to provide a benefit in circumstances involving untrustworthy business associates. Yet a number of you seemed to think they were an undue burden to business venturers in circumstances where trust may be lacking (i.e., where fiduciary duties should be useful). You will need to make a solid argument to most folks to justify that the detriments outweigh the benefits.

Blogs linking and commenting on my DEI statement

AEI:

Kudos to Professor Bainbridge for writing a diversity statement that should be a template for other conservative and libertarian professors and job applicants who are increasingly being forced to produce these dangerous and troubling “loyalty oaths” in higher education for hiring and promotion that amount to dangerous political litmus tests for political ideology and conformity.

TaxProf

The American Conservative

College Fix

UCLA Faculty Association Blog, which states that my DEI statement “seems intended to challenge the original diversity statement intent.” My intent was to comply with the requirement and in doing so draw attention to an area in which diversity is especially lacking. I should hope that is consistent with what the UC leadership intended. If not, what did they intend?

American Thinker:

I enjoyed a dinner with Steve and can attest that he is not the sort of man to worry about holding unpopular ideas, nor does he need the approval of moral midgets and academic lemmings to know that he has great value to add to his school.  He is his own man, an acknowledged leader in his field, a lover of performance cars, and not about to take crap from anyone.

Saul Alinksy's Fourth Rule for Radicals reads, "Make the enemy live up to its own book of rules."  Professor Bainbridge has added what we may call "The Bainbridge Corollary" to Alinsky #4: use the enemy's own rhetoric and logic to expose its flaws.

National Association of Scholars:

NAS believes this is an admirable response to a requirement to submit a Diversity Statement.

 

My DEI statement gets a lot of attention on Twitter

UCLA law professor Stephen Bainbridge’s awesome diversity statement https://t.co/JOxneqf9Qd @ProfBainbridge @JonHaidt @CHSommers @gregpiper @DanProft @Tim_Groseclose @benshapiro @UCLA_Law @WSJopinion

— Mark J. Perry (@Mark_J_Perry) January 1, 2020

I cannot imagine being a conservative in legal academia today. Kudos to UCLA law professor Stephen Bainbridge. https://t.co/oRrkzej7Yy @AcademicRenewal @FedSoc @LegInsurrection @CollegeFix @campusreform @LawLiberty

— Mark Pulliam (@MisruleofLaw) January 1, 2020

If you don't like this guy, you might not value genuine diversity. https://t.co/CygqyVtT3V

— The American Conservative (@amconmag) December 30, 2019

Rod Dreher gives yours truly a nice plug

From Rod's blog, he cites my recent post on my diversity, equality, and inclusion statement:

Read the whole genius post here, including details on the numbered citations above. You can also leave a comment for him there. It’s a good blog to follow, too, especially if you’re a conservative in the legal field.

Thanks to @roddreher for the shout out. https://t.co/PgwKiK7ywc

— Professor Bainbridge (@ProfBainbridge) December 27, 2019

I submit herewith my "Diversity, Equity, and Inclusion" statement for my merit raise at UCLAW

As regular readers know, I'm up for a merit raise at UCLAW this year and am now required to submit a statement of how I contribute to the University's goals in Diversity, Equity, and Inclusion. I have just emailed the statement to the administration. It reads as follows:

Although I am aware and respectful of the many dimensions within which a university properly seeks a diverse faculty and student body, I have long been particularly concerned with the lack of intellectual diversity at the law school. A survey of U.S. law professors in general found that white Democratic professors (both male and female), Jewish professors, and nonreligious professors “account for most (or all) of the overrepresentation among racial, gender, religious, and ideological groups in law teaching.”[1] The groups that “account for most of the underrepresentation among racial, gender, religious, and ideological groups in law teaching” are Republicans (both male and female), Protestants, and Catholics.[2] This disparity persists even though “religious and political diversity are probably more important for viewpoint diversity than gender diversity and roughly as important as racial diversity.”[3]

At UCLA, we know that the campus as a whole leans substantially to the left. “A study of various university faculties showed that at Cornell the ratio of liberal to conservative faculty members was 166 to 6, at Stanford it was 151 to 17, at UCLA it was 141 to 9, and at the University of Colorado it was 116 to 5.”[4] Conservative students at UCLA have been “harassed, stalked, and threatened.”[5] I recently searched the opensecrets.org donor database for political contributions made by persons who claimed UCLA School of Law as their employer. Thirty-eight of those persons contributed solely to Democratic candidates, the Democratic Party and various affiliates, and liberal PACs. One person contributed to both Republicans and Democrats. Three persons contributed exclusively to Republican candidates, the Republican Party, and various NRC affiliates. Of the faculty members who contributed exclusively to Republican candidates, the most recently hired of the two was hired in 1997. As a monetary matter, 92.67% of all contributions went to Democrats and affiliated groups.[6]

Because conservative students and students of faith often feel alienated and estranged in an environment that is so relentlessly liberal and secular, I have made particular efforts to reach out to and support such students. I have served as a mentor for leaders of The Federalist Society and Christian Law Students Association. I have given talks to both organizations. I taught a Perspectives on law and Lawyering seminar devoted to Catholic Social Thought and the Law, which gave students—whether Catholic or not—an opportunity to consider how their faith (or lack thereof) related to the law and an opportunity to learn about a coherent body of Christian scholarship that might inform their lives as lawyers. I have also tried to lead by example, such as by serving as a volunteer with the Good Shepherd Catholic Church’s St. Vincent de Paul chapter, which raises funds for distribution to poor persons who are in danger of losing their home due to inability to make rent or mortgage payments.

I'll let you know if I get the raise.

If the University of California diversity bureaucrats had their way, I couldn't get hired at UCLAW today

UC Davis math professor Abigail Thompson on the University of California's loyalty oath (a.k.a., diversity, equality, and inclusion statement) from today's WSJ:

Seventy years ago the University of California introduced a loyalty oath, requiring employees to swear they were “not a member of the Communist Party.” After a contentious period in which 31 faculty were fired for refusing to sign, the requirement was reconsidered. An eventual consequence was the current Standing Order of the Regents 101.1(d): “No political test shall ever be considered in the appointment and promotion of any faculty member or employee.” This is a statement of principle. No one will be denied a position at the University of California based on political beliefs. No communist, no conservative, no progressive, no liberal.

Now the university appears to be abandoning this principle. In the past few years “Diversity, Equity and Inclusion” statements, in which applicants for faculty positions profess their commitment to these social goals, have become required on eight UC campuses and at colleges across the country. ...

I have become increasingly uneasy with the use of DEI statements in faculty hiring. This spring the university issued guidelines instructing each campus to develop and use a scoring system, called a “rubric,” for applicants’ diversity statements. No longer will faculty hiring committees use their own judgment about how best to create a diverse and inclusive environment in their fields.

Instead, each candidate’s commitment to diversity will be assigned points. To score well, candidates must subscribe to a particular political ideology, one based on treating people not as unique individuals but as representatives of their gender and ethnic identities.

A rubric from the Berkeley campus, singled out because it is available online, specifies that job applicants who describe “only activities that are already the expectation of Berkeley faculty (mentoring, treating all students the same regardless of background, etc)” will score poorly (1 or 2 points out of 5). A low score in this or other areas will disqualify a candidate.

She concludes: "Mandatory diversity statements can too easily become a test of political ideology and conformity."

Become? Try "are."

Even the relentless liberal Daily Bruin student newspaper recognized this basic fact (emphasis supplied):

UCLA is a public, academic setting, an environment meant to support a diverse range of ideas and viewpoints towards all issues – within reason – with the knowledge that they enrich our campus. EDI statements stifle this diversity by limiting qualified new hires to social activists who mirror administrators’ agendas. Even if these activists are doing good, exclusively hiring them is a subtraction from the marketplace of ideas and a slippery slope toward further homogenization of dialogue – an unavoidable end incongruent with the diversity goals UCLA claims to be striving for. ...

The “EDI Statement FAQs” document claims the statements are “not about penalizing faculty who do not promote EDI,” but that’s difficult to substantiate when they’re quite literally metricizing someone’s quality based on these standards.

I recently blogged about the enormous disparity in political contributions at UCLAW:

38 persons who claimed the UCLAW is their employer contributed solely to Democratic candidates, the Democratic Party and various affiliates, and liberal PACs.

1 person contributed to both Republicans and Democrats. 

3 persons contributed exclusively to Republican candidates, the Republican Party, and various NRC affiliates.

Of the three who contributed solely to Republicans, guess who was the one hired most recently? That would be me. In 1997. Twenty-two (that's 22!) years ago.

Thanks to the DEI hurdle, however, that situation is unlikely to change. To the contrary, the university is creating institutional barriers to being hiring anyone who dissents from the progressive ideology. People who are skeptical of affirmative action, dissent from identity politics, criticize end runs around Proposition 209 like holistic admissions, have "old fashioned" views about sex, vocally support intellectual diversity, and so on are going to get rubric scores of 1 or 2. And never get hired here.

Oh well, the good news is that I turned 61 this year. In just 4 short years, I won't have to worry about this nonsense anymore because I'll be on a hammock on a beach somewhere sipping drinks that come with little paper umbrellas in them.

UCLA Law creates Master of Legal Studies degree

UCLA News:

UCLA School of Law today launched a Master of Legal Studies program, opening doors for professionals who seek to deepen their understanding of the legal issues that affect their industries but do not plan to practice law.

The school is taking applications for its inaugural M.L.S. class, which will begin studies in August 2020.

“We created the M.L.S. program to better serve professionals, entrepreneurs and nonprofit leaders,” said Jennifer Mnookin, dean of the law school. “As one of the top law schools in country, we are continually looking for ways to use the phenomenal strength of our school to give people the tools to succeed. While demand for traditional law degrees has been increasing, we also are seeing demand for professionals across several industries to acquire greater fluency with the law.” ...

... Students can earn certificates in eight specializations, including business law, employment and human resource law, entertainment and media law, environmental law, government and national security law, health law and policy, law and technology, and public interest law.

The program will be taught on campus and feature a curriculum designed specifically for M.L.S. students. Members of the law school’s faculty and leading practitioners will serve as instructors.

Political Contributions by UCLA School of Law Faculty and Staff go 92.67% to Democrats/Liberal Groups

There's an article in the WSJ claiming that political diversity at Yale is 0%. Inspired by that headline, I went to opensecrets.org. I typed UCLA SCHOOL OF LAW in to the Occupation/Employer field of the advanced search engine and searched for all cycles covered by the search engine.

38 persons who claimed the UCLAW is their employer contributed solely to Democratic candidates, the Democratic Party and various affiliates, and liberal PACs.

1 person contributed to both Republicans and Democrats. 

3 persons contributed exclusively to Republican candidates, the Republican Party, and various NRC affiliates.

As a result, 90.48% of UCLAW faculty and staff gave exclusively to Democrats.

The total amount contributed to Democratic candidates, the Democratic Party and various affiliates, and liberal PACs was $97,959

The total amount contributed to Republican candidates, the Republican Party, and various NRC affiliates was $7750.

As a result, 92.67% of all contributions went to Democrats and affiliated groups.

(Note that some of my own contributions were attributed to UCLA as my employer, which probably was true for some of my colleagues. So the exact numbers may be off a bit.)

University of California Mathematician Opposes Mandatory Diversity Statements as Does at Least One UCLA Law Professor

From InsideHigherEd.com:

Abigail Thompson, chair of math at the University of California, Davis, ...  says that today’s diversity statements are like the political litmus tests of the McCarthy era.

“Faculty at universities across the country are facing an echo of the loyalty oath, a mandatory ‘Diversity Statement’ for job applicants.”

The “professed purpose” of these statements is to identify candidates “who have the skills and experience to advance institutional diversity and equity goals,” Thompson wrote. But “in reality it’s a political test, and it’s a political test with teeth.”

What are the teeth, Thompson asks? Nearly all University of California campuses require that job applicants submit a “contributions to diversity” statement as a part of their application, and campuses evaluate such statements using rubrics, “a detailed scoring system.” She doesn’t name names, but says that “several UC programs have used these diversity statements to screen out candidates early in the search process.”

...

Last year, Jeffrey Flier, former dean of Harvard University's medical school, tweeted his opposition to mandatory diversity statements, calling them an "affront to academic freedom" that "diminishes the true value of diversity, equity of inclusion by trivializing it.”

It's not just job applicants that are affected, at least in the UC system. Promotions and even merit raises now require mandated diversity statements. As I noted a while back:

I sometimes wonder whether I could get hired here today with all of these requirements. Or whether somebody with my ideological views can get hired here today.

But what makes all this of personal interest is that, as of this academic year, EDI statements are going to be mandatory not just for hiring but also for promotion and merit raises. So the next time I come up for a merit raise, I'm going to have to submit one.

My statement is going to be purely about how I tried to promote intellectual diversity by supporting the Federalist Society ... and the Christian Legal Society. I wonder how that'll go over?

I continue to wonder, but the question is now even more pertinent because I am up for a merit raise this year. Be assured, if my merit raise gets denied, you will hear about it.

If US News is going to measure scholarly impact, how should it do so?

Apparently, US News plans to expand its rankings of law schools to reflect scholarly impact. The proposal, I gather, is to use Hein on Line's citation counts and rankings. The Society for Empirical Legal Studies is appalled. They've sent a letter to US News outlining their complaints (apparently they didn't write the letter on a spreadsheet, which seems mildly surprising, but good for them):

HeinOnline’s present citation-measurement system has three principal problems: (1) it is biased against interdisciplinary legal scholarship; (2) it omits all book manuscripts and chapters; and (3) it systematically undervalues the academic contributions of junior scholars, which would inhibit law schools from recruiting diverse faculties.

And the problem is?

Seriously, the omission of books and chapters is a problem. As for interdisciplinary work, is the claim that non-law journals "are routinely read by lawyers and judges" even remotely plausible? If the US News system in fact changes what type of scholarship people produce and where they publish it, shifting it back towards traditional legal scholarship and law journals, I will not lose much sleep. We are supposed to be the academic arm of the legal profession, not a humanities department. As Brian Leiter observes:

Of course, it might reasonably be said that "scholarly impact" for a law school should be reflected in law publications, not, e.g., in impact in philosophy or economics journals.  (The two examples given--a highly-cited article co-authored by Lucian Bebchuk [Harvard] in a non-law journal and the highly cited historian Samuel Moyn [Yale] whose citations derive primarily from books--are apt, but probably not typical.  Bebchuk will surely do extremely well by a Hein-only measure even if that one article is excluded, while Moyn won't; but does anyone think that would have factored into Yale's hiring decision?)

As for the argument that using Hein's system will reduce law school faculty diversity, that argument is blatantly specious. 

Under a HeinOnline-driven ranking system, law schools would go to great lengths to retain faculty members with long tenures and publication records, even those who have more recently become less productive. This in turn would reduce schools’ ability to hire and tenure junior faculty members, who increasingly hail from more diverse demographic backgrounds.

Says who? Given the pressure felt by law schools to diversify their faculties, this strikes me as a mere scare tactic. Run up the diversity flag and watch your opponents run away.

Anyway, although Leiter is more sympathetic to the Society's arguments than I am, he concludes:

... the fact that the Hein results are not that different from the Sisk-Leiter impact measure (the latter picking up, e.g., citations to books and to non-law articles) suggests that the effect on personnel decisions, and especially interdisciplinary scholars, may be less dramatic than feared.   I'll just add my anecdote to the mix of evidence here:   because Hein's database includes many more law journals internationally than Westlaw, while citations to my books and non-law review articles are lost, my total citation count appears to be roughly comparable because legal philosophy is an international scholarly community and I pick up lots of citations I never realized I had in law journals abroad.   Make of that anecdote what you will, but I expect there may be similar effects in legal history, empirical legal studies, and so forth.  Perhaps someone will examine this systematically.

 

An announcement for adopters of the Klein, Ramseyer, Bainbridge Business Associations Casebook

Attention adopters of Klein, Ramseyer & Bainbridge Business Associations casebook: We have posted updated PowerPoint slides for the entire book to our website https://t.co/fWddPKpi8e Free to use. Request password from your Foundation Press account rep. #lawtwitter #corporatelaw

— Professor Bainbridge (@ProfBainbridge) September 20, 2019

Brian Leiter is inclined to agree with Anthony Kronman about higher education diversity

Brian:

Legal historian John Witt here, responding to former Dean Anthony Kronman's new book (see this interview for the flavor, although he doesn't discuss the renaming of Calhoun College).  I'm inclined to agree with Professor Witt that renaming Calhoun College was a more than reasonable decision; but I'm also inclined to agree with Professor Kronman that (as he recently wrote in the Wall Street Journal), “Diversity, as it is understood today…means diversity of race, ethnicity, gender and sexual orientation. Diversity in this sense is not an academic value. Its origin and aspiration are political [i.e. justice for victims of discrimination]. The demand for ever-greater diversity in higher education is a political campaign masquerading as an educational ideal.”  

How UCLA's mandatory diversity and inclusion statements by faculty candidates impede intellectual diversity

I have often remarked that one of the great things about UCLA (both the campus and the law school) is that the left is so firmly in charge that there's no need for folks like me to waste energy fighting in faculty meetings and so on. But I long figured that the anti-conservative bias here was mainly a product of network effects.

In the last year, however, UCLA--like the rest of the University of California--has baked that bias into the hiring process. It does many through required EDI--equity, diversity, and inclusion--statements. As the Daily Bruin explained:

The university enacted a policy in May [2018] that requires all faculty candidates to submit an equity, diversity and inclusion statement as part of their application. An EDI statement is a short essay that lays out a candidate’s past contributions and future plans to further equity, diversity and inclusion.

A university-provided FAQ document explains that EDI contributions can come in the form of teaching, research, professional activity and service. One example UCLA provides of an applicable contribution is scholarly research that investigates and brings to light institutional inequalities.

The Daily Bruin is--like most college newspapers--reliably to the left of Bernie Sanders, but even it ran an editorial that pointed out the problem with these EDI statements:

While there’s no question of the value of equity, diversity and inclusion on campus, the EDI mandate touches on a different issue altogether: the ethics of ideological vetting in the hiring process. A faculty candidate’s fate should be primarily based on educational and professional merit. Setting ideological activism as a prerequisite for acceptance, even as it relates to the most well-intentioned ideology, is wrong.

UCLA is a public, academic setting, an environment meant to support a diverse range of ideas and viewpoints towards all issues – within reason – with the knowledge that they enrich our campus. EDI statements stifle this diversity by limiting qualified new hires to social activists who mirror administrators’ agendas. Even if these activists are doing good, exclusively hiring them is a subtraction from the marketplace of ideas and a slippery slope toward further homogenization of dialogue – an unavoidable end incongruent with the diversity goals UCLA claims to be striving for. ...

The “EDI Statement FAQs” document claims the statements are “not about penalizing faculty who do not promote EDI,” but that’s difficult to substantiate when they’re quite literally metricizing someone’s quality based on these standards. What UCLA deems an excellent score, which entails an applicant calling for active efforts to reduce institutionalized inequalities and adjustment for social sensitivities, could translate differently for a range of candidates.

I sometimes wonder whether I could get hired here today with all of these requirements. Or whether somebody with my ideological views can get hired here today.

But what makes all this of personal interest is that, as of this academic year, EDI statements are going to be mandatory not just for hiring but also for promotion and merit raises. So the next time I come up for a merit raise, I'm going to have to submit one.

My statement is going to be purely about how I tried to promote intellectual diversity by supporting the Federalist Society (back when @UCLA_Law admitted enough conservative students to support one) and the Christian Legal Society. I wonder how that'll go over?