Mandatory DEI Trainings and Academic Freedom

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[The heading of what appears to be one of the items included in the mandatory training.]

[I’m delighted to pass along this very interesting reporting and analysis by Prof. Alan Rozenshtein (Minnesota). -EV]

According to the Wisconsin Institute for Law and Liberty (WILL), a conservative advocacy group, the University of Wisconsin Law School conducted a mandatory 1L “reorientation DEI session” last week for which students had to fill out a “race timeline worksheet” with “7 significant moments at least” of “significant life events around race” and read a worksheet listing 28 “common racist attitudes and behaviors,” including views like “I’m colorblind” and “We have overcome.” A student who attended the session confirmed to me that WILL’s reporting was broadly accurate.

I reached out to the University of Wisconsin Law School and received the following statement:

Friday’s session on diversity, equity, and inclusion for second semester 1L students was held in partial fulfillment of ABA Standard 303’s requirement that law schools provide education to their students on “bias, cross-cultural competency, and racism.”

The session was interactive, with ample opportunities for students to engage in dialogue with each other. A core goal was to help students develop their critical thinking skills with respect to these topics.

We do not expect students to automatically accept the views expressed in the document referred to, any more than they would the reasoning of a legal brief, judicial opinion, or their professors. Intellectual and academic freedom are core values of the Law School.

Accordingly, we welcome and encourage vigorous debate over important questions of law and policy, and this session provided a forum for such discourse.

My goal is not to adjudicate between the competing accounts of the session, and indeed different good-faith observers can characterize the same event differently. More questions would need to be answered to properly evaluate a DEI session, such as: were a range of readings provided that offered a different perspective on race and racism; to what extent was the format of the session that of a training or rather an open-ended discussion; and, if the latter, was the environment such that students were comfortable expressing views contrary to those expressed in the worksheet, by the person leading the session, and by other students?

It’s a problem if the answer to these questions is no. Some concerns are legal: WILL argues that such trainings would violate civil rights law and create a hostile environment (see, for example, a recent court case upholding a lawsuit against Penn State for particularly extreme DEI trainings). Others are substantive: it’s jarring, especially a week after Martin Luther King Jr. Day, to read that the statement, “Character, not color, is what counts with me,” is a “detour or wrong turn into white guilt, denial or defensiveness.” And then there is the practical issue of whether such training might in fact backfire.

But I want to focus on a different point: that an educational institution committed to academic freedom and free inquiry should not use mandatory trainings to impose contested moral claims (again, without taking a position on the specifics of how the Wisconsin session was conducted). This principle is especially important for law schools, which are, after all, in the business of training future lawyers who will need to be able to consider all sides of an argument rather than dogmatically accept one view or another.

The issue is not whether one agrees with the views at issue. Academic freedom doesn’t just limit indoctrination in the “anti-racist” ideology reflected in the handout; it equally rules out adopting a critique of anti-racism as institutional orthodoxy. Nor is the point limited to discussions of race (central as they are in our current culture war). It would be just as inappropriate if a conservative-leaning university forced students to sit through a mandatory session on the virtues of capitalism and the evils of socialism, or if a liberal university took the opposite positions.

It’s true that required trainings often touch on issues that have normative dimensions, and controversial ones at that. For example, I would expect a mandatory law school orientation session to discuss the school’s policies on free speech, harassment, sexual misconduct, etc. Each of those policies reflects substantive choices that not everyone may agree with; e.g., some members of the law school community might think that the free speech policy goes too far, or not far enough, and similarly for the other policies.

But DEI training is different than training on existing policies, in two key ways.

First, training on the contents of a policy assumes that a policy actually exists. If a law school (or the university) has already taken a substantive position on some matter of institutional concern, then of course it has to inform the members of the community of the contents of that policy. And if members of the community don’t like the policy, they should argue against it, not against the training informing them of it.

But it’s unlikely that a law school would adopt, as an official policy, the claim that expressing “exhaustion and despair” over racism is itself racist, to take one of the claims in the handout (nor is it clear what it would mean to adopt such a claim as a matter of “policy”).

Second, even where policies exist, training should be limited to making sure that students understand the policy, not pressuring them to agree with it.

None of the above is meant to argue that discussions about race and racism, including the presentation of arguments based on anti-racism or critical race theory or any other school of thought, are inappropriate in a law school class, or even as part of the mandatory 1L curriculum. But a discussion has to be just that: an open-ended exchange of views that recognizes that no one has the right to force anyone else to agree with them when it comes to some of the most controversial debates in modern life.

How to address race and racism in the law school curriculum is an important and hard question. Law schools (and the ABA, which, as the law school noted, requires education on “bias, cross-cultural competency, and racism”) should make sure that, however they approach the problem, they do so in a way that is both effective and consistent with their commitments to academic freedom.

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