DEI Statements Were Loyalty Oaths, and the Old Oath Cases Show Why

Imagine applying for a job teaching organic chemistry and being asked, before anyone looks at your research, to describe in writing your commitment to a particular political programme. Imagine that your answer is scored by a rubric, and that the score decides whether anyone reads your application at all. Now ask yourself the question the Supreme Court asked in the 1950s and 1960s: is this a test of your fitness for the job, or a test of your opinions?

The practice I am describing is the diversity statement, a short essay that applicants for academic jobs have been required to submit, in which they pledge commitment to diversity, equity and inclusion. My claim is that these statements functioned as loyalty oaths, that the Supreme Court dealt with such oaths at length in the middle of the last century, and that the reasoning it developed explains why a number of universities have been right to abandon them. It is a claim about law and logic, not about whether diversity is a good thing. I will define the terms, state the defenders' case at its strongest, and then answer it.

The terms

Diversity statement. A written statement, submitted with a job application, describing the applicant's past contributions to, and future plans for, diversity, equity and inclusion. In many searches it is scored against a rubric, and low scores can eliminate an applicant at an early stage.

Loyalty oath. A declaration, required as a condition of public employment or a public benefit, that the person holds, or does not hold, certain beliefs or associations. The classic examples from the Cold War era required teachers and public employees to swear that they were not members of particular organisations or that they did not advocate certain ideas.

Viewpoint test. A requirement whose passing depends on the content of the applicant's views, not on the quality of the applicant's work.

How the statements spread

Diversity statements spread from a few institutions into academic hiring more widely. They began as a way to learn how candidates would contribute to a diverse campus. Over time, in many departments, they became a formal step with a rubric, and in some searches an early screening device. The ideas behind them were sincere. University leaders were worried about the representation of certain groups on their faculties, and they wanted to hire people who would help students from all backgrounds.

But a mechanism designed for one purpose can have another effect. When a statement is scored, and the scoring determines who advances, the applicant has to learn what the scorers want to hear. Applicants in every field, including those who held the ordinary and widely shared view that they would treat every student with equal respect, discovered that the safest course was to produce an essay in the approved vocabulary. A well-known example is the 2018-19 life sciences search at the University of California, Berkeley, where the university's own year-end report says the committee reviewed redacted diversity statements, scored by two reviewers using a rubric, before looking at applications in their entirety. Critics report that the rubric gave low marks to candidates who offered only things like treating all students the same regardless of background. I could not confirm that wording from the primary rubric, so weigh it as a critics' account, and I encourage readers to look for such rubrics themselves.

The point does not depend on any one rubric. The point is structural. When a public institution requires you to pledge allegiance to a contested programme in order to be considered for work, it is administering an oath.

MIT and others step back

In May 2024, the Massachusetts Institute of Technology announced that it would no longer require diversity statements as part of faculty hiring. MIT's president, Sally Kornbluth, explained the decision in terms that did not reject diversity as a goal. She said that compelled statements impinge on freedom of expression, and that they do not work. MIT's spokesperson noted that the statements had never been a university-wide requirement, but some departments had chosen to ask for them. Other institutions and some state governments have since taken up the same question. I am not itemising them, because the details differ, some are still changing, and I have not checked each one for this post.

Notice who made this decision. MIT is not a conservative institution, and its leadership did not wake up one morning and decide to join a culture war. They looked at a practice and concluded that it asked applicants to affirm beliefs as a condition of employment, and that the freedom of the institution's scholars was better served by not requiring it. That is a conservative conclusion reached by people who are not conservatives, and I say so with pleasure. It is not every day that a faculty committee rediscovers the First Amendment, and when it does, the polite thing is to applaud and not ask how long the search took.

The oath cases

Now to the law. The period from the late 1940s to the 1960s was the heyday of loyalty oaths. States and the federal government, alarmed by communist subversion, required public employees, and teachers in particular, to swear that they were not members of subversive organisations, or to make elaborate disclaimers. The Supreme Court's response, over about fifteen years, was to shut the practice down piece by piece, and the reasoning is worth knowing.

Wieman v. Updegraff (1952)

Oklahoma required state employees to swear that they were not and had not been members of certain organisations. The Court unanimously held that the oath violated due process because it lumped innocent association together with knowing association. The case established that a state could not condition employment on an oath that swept in innocent association. It also hinted at a larger concern: that the state should not use its power as an employer to impose an orthodoxy.

Baggett v. Bullitt (1964)

Washington State required teachers and state employees, including those at the University of Washington, to take loyalty oaths. The Court struck down the oaths, as usually described, because they were vague. A teacher could not know whether an innocent act would put him in violation, and the result was a chilling effect on what faculty would say and teach. Vagueness is relevant to diversity statements as well, since a rubric that rewards "commitment" without defining it gives applicants no way of knowing what will satisfy the scorers.

Keyishian v. Board of Regents (1967)

This is the great case. New York's laws made Communist Party membership grounds for disqualification from teaching, allowed removal for "treasonable or seditious" words or acts, and had been enforced through a loyalty certificate that was dropped before trial. In Keyishian v. Board of Regents, the Court, in an opinion by Justice Brennan, held on January 23, 1967 that the vagueness of the provisions and their reach over mere knowing membership made them unconstitutional. The opinion contains the sentence that every university official should have framed on a wall: "Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom."

A pall of orthodoxy over the classroom: that is as good a description of a loyalty oath as has ever been written, and it applies without strain to a hiring process in which an applicant must show that she has the right opinions.

The Founders' version

The oath cases did not invent the principle. The Constitution, in Article VI, says that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The Framers, who had seen England use tests of religious conformity to exclude dissenters from office, forbade them. The Court extended that logic to political tests. The aim was the same in each case: that the qualifications for public service be about fitness and not about faith.

I want to be careful not to overstate the parallel. The Article VI clause concerns federal offices and religion. The oath cases concern the First Amendment and state employment. But a principle runs through all of them, from 1787 to 1967: the government may not make the holding of particular beliefs a condition of public employment.

The defenders' case

The defenders of diversity statements make an argument that deserves a serious statement. They say: a university has a legitimate interest in hiring faculty who can teach and mentor a diverse student body. A statement that asks how an applicant has worked with students of varied backgrounds, or how she plans to support them, is just a way to measure teaching skill. It is no different from asking about her teaching philosophy. Nobody calls a teaching statement a loyalty oath.

I accept the premise, and I think the argument has force as far as it goes. A university is entitled to ask a candidate how she will teach students who differ in preparation, background and experience. A candidate who has mentored first-generation students or taught in an under-resourced school has something relevant to say, and a good statement of teaching philosophy may include it.

The answer, in numbered points

1. A question about teaching is not the same as a demand for a pledge. "Describe your experience teaching students with different backgrounds" asks for facts about the applicant's record. "Describe your commitment to diversity, equity and inclusion" asks the applicant to affirm a programme. The first can be answered by anyone with relevant experience, from any perspective. The second can be answered well only by someone who adopts a specific framework.
2. The rubric is the evidence. If the statement were just a measure of teaching skill, the scoring would reward effective teaching of diverse students, however the applicant describes it. Where the scoring instead rewards the use of a particular vocabulary and penalises statements of equal treatment, the statement is testing the applicant's opinions. If the rubric is as critics describe, then a teacher who says she would treat all students alike has made a statement about how she would teach, and to score it poorly is to score the viewpoint.
3. The applicant has no safe answer. In the oath cases, a recurrent concern was that the person subject to the oath had to guess what the state wanted to hear. The Court in Baggett focused on this. An applicant to a position with a diversity statement faces the same problem, and a conscientious applicant who disagrees with the framework must either lie, stay silent or withdraw.
4. The chilling effect reaches beyond the applicants. Every graduate student who plans to enter academia learns that a specific essay is required, and learns what it should say. The effect on the next generation of scholars, who must at least perform the right opinions to get a job, is the effect the Court warned of in Keyishian.
5. There are less intrusive ways to reach the same goal. A university that wants teachers who can serve a diverse student body may ask about teaching experience, look at student evaluations, examine syllabi, watch a sample lecture and speak to references. All of that measures the skill without testing the creed.

That fifth point is the one I would press hardest. The test of whether a requirement is about the job is whether the job could be assessed without it.

What this does not say

It does not say that diversity is a bad thing, or that universities should not care whether their students are well served. It does not say that every statement ever written was cynical. And it does not say private universities are bound by the First Amendment: the oath cases concern the government, and so the strongest argument applies to public institutions. A private university may set its own hiring rules, and its donors, trustees and alumni may hold it to account. For the public ones, the Constitution speaks.

Nor does it say that an applicant may not volunteer her experience of mentoring a diverse class. A candidate who wishes to describe such experience is free to do so, and a hiring committee is free to value it. The line I am drawing is between asking about what a person has done and requiring a pledge of belief.

I should add one further distinction, which the Court itself drew in Cole v. Richardson (1972). There, the Court upheld a simple oath to uphold and defend the Constitution and oppose its overthrow by unlawful means, on the reasoning that such an oath is an affirmation of allegiance to the constitutional order and not a test of belief on contested questions. That is why a federal official may be asked to swear to support the Constitution, and why a diversity pledge is a different matter. The Constitution is the shared framework of the country. A programme of policy is one of the things the country argues about.

The wider pattern

Diversity statements are one piece of a larger story about how universities have treated political and cultural questions as settled, and it is a story that has drawn attention from many directions. For a look at the legal background of the affirmative-action era that gave rise to many such practices, see Sixty Years of Federal Affirmative Action Orders, From 1961 to 2025. For the question of what the term "DEI" actually describes, and which of the claims made about it are false in either direction, see Seven Myths About DEI Programs, Including That Critics Oppose Diversity. The principle of equal treatment in law that stands behind the critique is in Colorblind Law Is Not a Code Word, It Is Harlan's Dissent Made Good. For the related question of vocabulary lists, see Language Policing Turns Ordinary Words Into Offences, and It Never Ends, and for the compelled-speech rule in general, Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line. For what happens when a university's leadership is asked a simple question about its own rules, there is The Campus Hearing Where Three Presidents Could Not Answer a Simple Question.

The case in brief

1. A diversity statement required in hiring, and scored on a rubric that rewards particular views, works as a loyalty oath: it conditions access to a job on professed belief.
2. The Supreme Court struck down such tests in Wieman (1952), Baggett (1964) and Keyishian (1967), the last warning against laws that cast a pall of orthodoxy over the classroom, and Article VI had long barred religious tests for federal office.
3. The defenders' argument that the statements measure teaching skill is fair in principle but fails where the rubric scores viewpoint, where the applicant has no safe answer and where less intrusive methods exist.
4. MIT's decision in May 2024 to end the requirement, taken by an institution that is not a conservative one, shows that the objection is about freedom and not about politics.

What you can do: if you work at or send money to a public university, ask the office of the provost in writing whether the institution requires diversity statements in hiring, and ask what the rubric says.