Abstract

Excerpted From: Kevin R. Johnson, Diversity, Equity, and Inclusion as an Institutional Imperative, 55 University of Toledo Law Review 207 (Winter, 2024) (43 Footnotes) (Full Document)

The police killing of George Floyd in 2020 sparked mass protests across the United States. Demands for the dismantling of systemic racism in the criminal justice system followed. Challenges to similar discriminatory structures in employment, housing, higher education, health care, voting, and a myriad of areas came as well. Scholars for years have critically analyzed systemic racism without much of a public response. The public push for elimination of systemic racism thus is long overdue.

With the end of de jure segregation, higher education for years focused on enrolling a more diverse student body. Over time, universities moved beyond admissions and considered issues of diversity, equity, and inclusion (DEI), that is, the full integration of all students into the fabric of the institution. Because “[r]esearch has shown that diversity, equity and inclusion initiatives improve creativity, productivity and organizational performance,” the business world also has embraced DEI programs.

My contribution to this symposium contends that a campus's racial climate will not improve absent a dedicated and sincere commitment and intentional action, not simply the creation of DEI offices, adding administrators, organizing programs, and constructing websites. Part I analyzes the emergence of DEI offices at universities in the United States. To bring forth constructive change, campus leaders at a minimum must be truly committed to fundamental and meaningful change. Although the Supreme Court now prohibits race-conscious affirmative action, Part II explains ways to continue to enroll diverse student bodies and make DEI efforts successful.

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University presidents increasingly have assigned administrators and created offices with the responsibility of overseeing campus DEI efforts. As a result, DEI programming is now an ordinary part of the administrative structure of many, perhaps even most, colleges and universities. For similar reasons, implicit, or unconscious, bias training has taken root on college campuses as well as in workplaces. Employers justify DEI training on business grounds: “[A]cross the globe, in response to public outcry over racist incidents in the workplace and mounting evidence of the cost of employees' feeling excluded, leaders are striving to make their companies more diverse, equitable, and inclusive. Unconscious bias training has played a major role in their efforts.”

DEI efforts can be expected to bring forth conservative responses. The growing discussion of remedying systemic racism in U.S. society and the addition of DEI programming by many institutions has provoked resistance. Critics have made strident claims that the liberal “woke” and “cancel” cultures have overrun middle American values. That reaction has led to recent cutbacks to, or even elimination of, some college DEI programs. For example, “Florida Gov. Ron DeSantis in 2023 signed a bill banning public colleges and universities from spending money on Diversity, Equity, and Inclusion (DEI) ... [.]”

The U.S. Supreme Court's 2023 decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College found race-conscious affirmative action to be unconstitutional and will make it more challenging for many colleges and universities to enroll diverse student bodies. At the same time, strident political challenges in some states to the teaching of Critical Race Theory (CRT) in public education, which come at the same time that students demand more CRT in their courses, may hinder efforts to ensure an antiracist curriculum on university campuses. At a minimum, the end of race-conscious admissions and the political attacks on CRT and other efforts at challenging systemic racism (including DEI programs), will provide ammunition for conservative forces to challenge virtually any program designed to improve the racial climates of colleges and universities.

I fully support bona fide university DEI efforts. However, the jury is out as to whether the flurry of DEI initiatives as a whole represent a true commitment to equality by colleges and universities or, in some instances, pay little more than lip service to the demands of activists. One can imagine very different outcomes of DEI initiatives depending on the commitment of campus leaders, the leadership and personnel in place, available resources, and local circumstances. Due to the interaction of these and other factors, some DEI programs will succeed in moving the needle forward while others will fail. Lessons necessarily will be learned from the successes and failures.

One thing should not be open to serious dispute. Universities obviously should not create DEI offices, vice chancellors and deans, and programs simply to quell demands for equality. Campus leaders should aggressively work to promote substantive DEI improvements through planning (with concrete strategies and objective goals), programs, community discussions, budgetary allocations, and related measures.

In short, DEI offices and officers should not simply be tools utilized by university leaders to manage, if not silence, demands for justice. The highest levels of campus leadership must be committed to achieving substantive DEI results, which should be founded in community hopes and needs. The truly difficult challenges are determining how to ensure that DEI efforts in fact address true issues of diversity, equity, and inclusion that matter to the relevant communities, and secure true and lasting institutional change. The commitment must be for the long-termbenefit of the community, rather than ad hoc, short-term bursts of energy by a single office or officer in response to problematic episodes, such as the controversy surrounding the violence in the Middle East. Time and results will tell whether universities are in fact truly committed to moving their institutions toward building a more welcoming community for all.

To formulate meaningful measures that improve the climates on campuses, consultations with faculty, students, staff, alumni, and community members are essential. Input from the different community groups will help to ensure that DEI efforts both (1) identify actual DEI concerns on the ground, and (2) are designed to respond effectively to those concerns. Meaningful consultation, coordination, and compromise can help to fashion DEI efforts that reap concrete institutional benefits.

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Despite conservative resistance, a university's commitment to DEI is laudable. However, to produce results, that commitment must be true, principled, and adequately supported by the highest levels of campus leadership through resources and moral authority. Absent dedicated administrators with a budget and identified goals that move an institution forward, DEI offices will not accomplish much in furthering the cause of diversity, equity, and inclusion. Perhaps most importantly, the communities directly affected must be part of a deliberative process to identify DEI issues and possible changes.

DEI efforts are much-needed for universities and law schools, as well as businesses and other institutions. This is especially the case in the wake of the Supreme Court's 2023 decision ending affirmative action in university admissions. The challenge facing higher education will be to implement lawful and constructive DEI programming.

Dean and Mabie/Apallas Professor of Public Interest Law and Chicana/o Studies, University of California, Davis, School of Law.