Last week, the Washington Post editorial board came out against “DEI statements” for college faculty hiring. While this is a welcome sign of how the tide is turning against the Left’s diversity, equity, and inclusion agenda, the Washington Post’s stance is utterly without moral force. And without massive administrative force, DEI statements are going nowhere.
Fortunately, if elected, former President Donald Trump’s next administration could assert the most ironic of administrative forces to eliminate this practice.
DEI statements are primarily political litmus tests. To research and teach about organic chemistry, a would-be professor must first profess his desire to dismantle “whiteness.” If you want to be an astronomer, you must first declare your dedication to uplifting the identities of marginalized nonbinary indigenous folx (or something like that, probably).
There is obviously no logical connection between DEI and competence at anything. Indeed, adherence to DEI ideology is a pretty reliable adverse selector for intellectual distinction. The point of DEI statements is not to improve research and teaching but to assert and ensure leftist hegemony over higher education.
Traditional liberals should oppose this. But traditional liberals hold one principle more sacred than meritocracy, intellectual freedom, and liberal education itself: a pathological terror of someone calling them racist. Because DEI adherents operate primarily by calling their critics racist, traditional liberals have merely smiled and nodded along with them.
Fortunately, a traditional liberal and black intellectual, Harvard Law School professor Randall Kennedy, recently came out against DEI statements. The Washington Post relies heavily on invoking his authority, and the editorial board almost certainly could not have managed to say what it said without being able to point to a black guy to justify its opinion.
Good for him — but weak for them.
Indeed, the Washington Post’s halfhearted editorial is far too weak to command any respect or for this newfound liberal opposition to amount to much of anything. Certainly not in universities whose presidents just capitulated to obviously mentally unwell pro-Hamas glampers.
But in his second term, former President Donald Trump could totally own the Democrats and the Left by leveraging one of the Left’s most powerful weapons against them: disparate impact.
The philosophy behind disparate impact was perfectly articulated by the “anti-racist” Ibram X. Kendi when he said, “When I see disparities, I see racism.” Any statistical disparity, or even alleged statistical disparity, becomes presumptive evidence of illegal discrimination that can be remedied by litigation or consent decree. As law professor Gail Heriot once put it, disparate impact “makes everything presumptively illegal,” providing dispensation only to what civil rights enforcers permit. Kendi’s dream of a totalitarian federal “Department of Antiracism” is simply the logical extension of disparate impact’s implicit tyranny.
Naturally, conservative policy wonks want to eliminate federal disparate impact enforcement. And the Trump administration should do so. But before doing that, why not use it a bit?
After all, DEI statements may be primarily about ensuring leftist ideology hegemony, but that is not their sole purpose. They are also a tool to discriminate against white people. And against men. And especially, intersectionally, against white men.
Sometimes universities, such as the University of Washington, are explicit about discriminating against white people. But there isn’t always a smoking gun. DEI statements are actually the rare, appropriate use-case for disparate impact: a facially neutral policy that is implemented in order to discriminate based on race.
The Trump Department of Education’s Office for Civil Rights, for example, could issue a “Dear Colleague” letter advising colleges that DEI statements present a liability for investigation. It could defund the University of Washington and other colleges for which it has smoking-gun evidence of racial discrimination.
University presidents across the country would quickly fold. In the process, however, they would also whine and engage the activist Left against the tyranny of disparate impact. It would be exactly the sort of enforced own goal that Trump specializes in making the assist on.
But it would even be better than that. To investigate racial discrimination in DEI statements, the Education Department would have to collect a massive amount of data. It would need the resumes and curriculum vitae of all applicants, as well as interview and review notes from faculty committees. Once this is all collected and the investigation is closed, it can be easily accessed with a single public records request.
Effectively, the Education Department could entirely subsidize discovery for an untold number of individual and class action lawsuits against universities for anti-white and anti-male discrimination in hiring. I’m not a lawyer, but I’d imagine that the overall value of individual and class action settlements here could reach into the hundreds of millions of dollars. Once the evidentiary predicate is freely accessible, enterprising trial lawyers need only link up with disgruntled and underemployed adjunct professors. Lord knows there’s enough of both those types.
If Trump plays his cards right, universities will have to pay dearly for attempting to systematize a hegemony of leftist ideology. And Democrats might even regret ever weaponizing disparate impact in the first place.
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Max Eden is a research fellow at the American Enterprise Institute.