"Viewpoint Diversity" Requirements as a New Fairness Doctrine: Viewpoint Diversity Rules as to Students

I have an article titled “Viewpoint Diversity” Requirements as a New Fairness Doctrine forthcoming in several months in the George Mason Law Review, and I wanted to serialize a draft of it here. There is still time to edit it, so I’d love to hear people’s feedback. The material below omits the footnotes (except a few that I’ve moved into text, marked with {}s, as I normally do when I move text within quotes); if you want to see the footnotes—or read the whole draft at once—you can read this PDF. You can see my argument about why viewpoint diversity requirements are likely to chill controversial faculty speech here; here is a brief follow-up section as to the problems with imposing such requirements as to students:

[E.] Viewpoint Diversity Rules as to Students

The Administration’s letter to Harvard also calls on “audit[ing] the student body” and not just the faculty. But the problem of people being encouraged to misreport their political beliefs is likely to be even more severe with regard to the auditing of students. For college students, any such audit is likely to be based entirely on self-reporting, since most students will have little history of party registration, even less history of political donation, no formal publication record of the sort that academics have, and (again, for most students) little politically minded social media commentary.

Yet if universities try to achieve viewpoint diversity by asking would-be students their political beliefs when they are applying, many students will likely claim beliefs that they see as likely to increase their chance of admission (e.g., by claiming to be conservative or centrist when they think they’ll be penalized for being liberal, or claiming to be liberal or centrist when they think they’ll be penalized for being conservative). This is especially so since this would generally be a very safe lie. The terms are vague enough that it will be hard to prove that people were misdescribing themselves. And even if, after they come to college, students become activists on a side contrary to the one they claimed, they can always just say that they’ve changed their minds. Indeed, the terms are vague enough that students can even persuade themselves that they are telling the truth. “No, really, I’m not that liberal—I’d say I’m more of a moderate” is an easy story to tell yourself once you learn that calling yourself a liberal would decrease your chances of admission.

To be sure, universities might measure their students’ viewpoint diversity by asking students their political beliefs when they are already in school. But then to cure any lack of viewpoint diversity, they would still have to ask future applicants for their views, and risk the strategic responses that I describe above. And even the current students might feel an incentive to respond inaccurately: After all, if left-wing (or right-wing) activist students realize that so labeling themselves will increase the university’s pressure to admit students from the other side for ideological balance, those students might well conclude that it’s better to mischaracterize their positions in the viewpoint diversity survey.

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