John D. Sailer joins Brian C. Anderson to discuss federal diversity, equity, and inclusion (DEI) programs, and particularly NIH First, a quarter-billion-dollar grant program focused on encouraging DEI hiring at universities.
Audio Transcript
Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Joining me on the show today is John D. Sailer. He's a senior fellow at the National Association of Scholars, and he's done in-depth reporting on diversity, equity, and inclusion programs and hiring practices in higher education, medicine, scientific research, and the federal government. He shared many of these findings and reports for NAS and in articles for City Journal, the Wall Street Journal, and other publications. He joins us today to talk about federal diversity, equity, inclusion programs, grant programs in medicine and in science, and in particular something called NIH FIRST, a DEI-focused National Institutes of Health initiative that's aiming to influence hiring at universities and medical schools across the country. So John, thanks very much for joining us.
John Sailer: Thanks so much for having me.
Brian Anderson: So to start with, tell us about NIH FIRST. I think most people aren't aware of the existence of this program. What is its intent and what is your research uncovered about how it actually operates?
John Sailer: Yeah. So a lot of my research in writing has been aimed at answering the question, why have our universities seemingly gone insane? Why have our universities created a culture that is in many ways at odds with a lot of the values of those outside the university and that promote ideologies that a lot of ordinary people would think are just really strange, unusual, that sometimes don't stand up very well to scrutiny, but they seem to do that in the context of academia because this narrow set of ideas are much more in vogue? So one of the key policies that I've looked at involves the way that faculty throughout the country are hired and the way that certain ideological requirements are being embedded into university faculty hiring. The best example of this is the use of diversity statements in faculty hiring, and that's where NIH FIRST is a really interesting case study, but it also is just important piece of federal programming that I think has influenced how universities across the country have actually operated.
So NIH FIRST is a quarter billion dollar grant program. So the program has given out or promised about $250 million in grant money to universities specifically for DEI-focused hiring. The goal is explicitly to create an environment that is receptive to DEI, and the hope is also explicitly to, they say diversify the biomedical workforce. And the main tool that they use is the policy that I mentioned, the use of diversity statements as an important criterion in the assessment of the faculty who were hired through these programs. So the NIH has given grants to about 15 medical schools and/or universities that intend to use the money to hire biomedical scientists. And they're requiring that these institutions use diversity statements and heavily weigh them in the hiring process. And so you can imagine you've got $250 million going out to universities across the country. A lot of universities and medical schools wanted to apply for this and didn't get it and carried out programs of their own anyway. It had a big impact on the way that medical scientists have been hired across the country.
Brian Anderson: Earlier this year though, both MIT and Harvard's Faculty of Arts and Sciences announced that they were getting rid of mandatory diversity statements as part of their hiring process for faculty positions and there's at least been some speculation that other schools might follow suit, given that these are two of the leading institutions in the country. I wonder, do you anticipate more movement in that direction?
John Sailer: So here's the interesting thing. I think it's hard for a lot of people within academia to defend this policy, especially when you look at the way that it's carried out in practice because it offends the basic liberal notion that you shouldn't impose an ideology on someone. So in a Wall Street Journal article I wrote earlier this year, I discussed how, for instance, the NIH FIRST program, many of the institutions that were funded through NIH FIRST, they used a rubric for assessing diversity statements that penalized people for basically espousing colorblind equality. If you said you wanted to treat everyone the same and not look at their varying backgrounds in relation to your work and your teaching, you would get a low score on your diversity statement for saying that. And that's actually a really commonly used rubric when it comes to this practice. It was created by UC Berkeley, and it's used all across the country, and it basically says you have to think one particular way with regards to race.
And I've never heard of really anybody who has given of this rubric that's used widely everywhere. In fact, the more I see people talking about diversity statements, including some really prominent senior scholars at prestigious universities across the country like Harvard and MIT, the more I see people criticizing the practice and thinking, this is really a big problem. So on one hand I think there's momentum based on this sort of free expression argument, but on the other hand, I think the challenge with pushing back on this policy relates to what's becoming clearer and clearer as people like me have dug into how these policies are used in practice, which is that the free expression component is only a part of it.
The motivation for using diversity statements in the first place has always been that they, and sometimes explicitly so, that they allow institutions to increase the diversity of their candidate pools or their short lists, or even at times just cover up for overt discrimination by using diversity statements as a proxy, when you obviously per civil rights law can't simply just hire someone because they're of a particular race. So while the free speech argument is winning out, I think there's still a lot of pressure to use tools like DEI statements and other DEI-related tools as a way to sort of navigate the landscape that civil rights law has created for institutions. And these institutions are still very much committed to their underlying diversity goals, which means that even though there's some move away from the use of diversity statements, I think a lot are still going to stick with it for now because of the prior commitments they've made.
Brian Anderson: Well, let's talk about that for a minute. In terms of the Civil Rights Act of 1964, the last year, as many of our listeners know, the Supreme Court in Students for Fair Admissions, pretty important case, handed down a ruling that colleges couldn't engage in racial discrimination in admissions decisions even in the name of diversity. And then there's Title VII of the Civil Rights Act, which explicitly forbids racial discrimination in hiring. How are such blatant violations of the law as seem to be happening with these racially motivated hirings at universities passing legal muster in terms of the grant application? I mean, how do these programs survive legal scrutiny?
John Sailer: This is a really interesting point because thus far there's been no legal challenge to the use of diversity statements on the basis of the Civil Rights Act of 1964 or really on the basis of racial discrimination at all. As far as I know, there's certainly been no high profile challenge, even though some groups have actually challenged them on First Amendment grounds. So there was a lawsuit recently alleging that the requirement was something of a political litmus test, and because of that, it is essentially viewpoint discrimination that's unlawful per the First Amendment. But there really is this interesting legal question, and unfortunately so far it looks like this is a blatant legal loophole that universities have been able to use without much pushback. So when the NIH first proposed this program, it was based on another program for hiring intramural scientists at the NIH. So the scientists who are basically on faculty at the NIH and doing their work there.
That program was a program where they made the two criteria for all of their Distinguished Fellows Program, where the criteria for all of the fellows was one, their scientific chops, but two, their commitment to diversity, equity, and inclusion. And when that program was proposed, the director of diversity at NIH at the time very explicitly said, "This is not affirmative action. This is not a race-based hiring program, because that would be illegal." But then she pretty candidly turned around and said, "But if we hire on the basis of whether you have a strong understanding of diversity, equity, and inclusion, whether you have a demonstrated commitment to diversity, equity, and inclusion, then most likely we're going to get basically the same results that we would have if we had just gone out and hired on the basis of race.”
And so when NIH FIRST was created, it was created as a way to scale, basically take the models created in that intramural program and scale it out to the rest of the country and say, hey, look, it worked really well for us to hire people on the basis of their commitment to diversity, equity, and inclusion, which on its own raises issues of free expression, ideological conformity. But those concerns tend not to be raised in the context of the NIH, but they said, this has worked really well as a tool for us to simply bypass civil rights law. I mean, they didn't literally say we're going to bypass civil rights law, but they did kind of strongly suggest that, yeah, the goal is to achieve those ends by proxy.
Now, that's pretty hard to legally challenge, though I think people should take it more seriously. I think the thing that has been striking in my research, which is based mostly on acquiring public records, is just how often when you look at how diversity statements are actually assessed, they boil down to rather than an assessment of just somebody's commitment or understanding of DEI, and rather than merely raising those issues, they involve pretty explicit indications that hiring committees are just going out and reading the writing on the wall and saying, okay, we're trying to get people of a particular race or of a particular gender, or at the very least not white men.
And now I say that because the most recent piece I wrote for the Wall Street Journal in July, that piece was based on about a year's worth of research where I collected through public records requests, grant proposals for the program and emails regarding the program and hiring documents from the program. And what I found is that alongside indications that there would be this sort of element of viewpoint discrimination, which is concerning in its own right, there was also just sort of blatant references to the grantee institution's desire to discriminate on the basis of race. So for instance, Vanderbilt University, they said, we're going to hire 18 to 20 scientists who are black, Latinx, Native American or Pacific Islander. They essentially treated it like it was an affirmative action program, which is probably actually legally actionable if there was a plaintiff interested in taking up a case. Florida State University likewise said that this is a program for underrepresented minorities.
Brian Anderson: Now have these programs and the practices they promote run into state level resistance? What does that look like? Certainly in Texas and Florida, there's been some pushback with anti-DEI laws. How does that apply here?
John Sailer: So a lot of states have on their own initiative, past laws that would both bar the use of diversity statements in faculty hiring and bar the consideration of race and clarify some of the laws surrounding the consideration of race in hiring. Those are actually both parts of the Manhattan Institute model legislation on DEI, which the National Association of Scholars was somewhat involved with helping create. And those I think, have laid solid groundwork for really pushing back on this kind of policy. But it's worth noting how difficult it is to sort of mandate these kinds of things away by legislative or even the fiat of appointed university leadership like trustees and to some extent, even college presidents. There are a lot of places where an institution will say, we're no longer using diversity statements, but they'll clarify that, well, that's unless they're required by the terms of a grant proposal or something like that.
And that's something that the institutions, I think have very carefully negotiated out because, and this is worth emphasizing, many of the programs that have been created around the country promoting DEI, promoting these kinds of practices come from the federal government. It's not just NIH FIRST, there are large number of programs coming through the NIH, but there are also a large number of programs coming through NSF. So on one hand, you have serious reformers who are taking the right actions to prevent policies to the extent they can by sort of legislative fiat or by decree from the position of a trustee's office. But you have to have, is some protection against the just massive amounts of money that's coming from the federal government that's being used for these purposes and that institutions have reason to want to continue to use for these purposes.
And I'll note that one of the NIH FIRST programs was Florida State University. At least two others are in the UT system, UT Southwestern, UT Dallas, and then even UT San Antonio. So those programs still exist. They say they're not using diversity statements anymore, but most likely they found a way to continue to spend the money from the NIH that's devoted to at least in spirit, trying to enforce this kind of policy. So you have a real problem with the federal spending that needs to be addressed. But at the end of the day, it's interesting. FIRST, it stands for Faculty Institutional Recruitment for Sustainable Transformation and a part of the way of selling this program from the very beginning, the NIH said that this is about not just diversifying, but also transforming the culture of higher education. And really the NIH, other federal institutions like the NSF, and a lot of university systems for a long time have instituted policies that essentially create a career pipeline for people who share a particular vision for how a university ought to be run, for what kinds of things a university ought to do.
And that vision is very much embedded with kind of the contemporary notion of social justice. So we don't just have an issue with policy. We now have an issue where a lot of people enacting whatever policy is handed to them, are committed to basically the social justice vision for the university. And so in order to really rectify the problem here, I would say that the kinds of legislation and reform that we're seeing in places like Texas and Florida and North Carolina are really important, but they're kind of just a first step. What you also need to do is establish a kind of counterculture, and I think there are ways to even borrow some of the strategies that have been used in the past by social justice advocates to say, no, we need to make it so that the top hiring priority involves a commitment to disinterested science, involves a commitment to academic freedom. Those kinds of things are the key values, not just driving the university's public statements, but also driving things like hiring priorities.
Brian Anderson: How have the institutions engaging in these DEI practices responded to the reporting you've conducted in recent months? I wonder, is there any sign that they're backtracking a bit because of public pressure?
John Sailer: Regarding NIH FIRST I've had, or I've seen less response from institutions than I expected. So when I reached out for a comment to the seven or so universities that I wrote about in my most recent piece where I had some pretty incriminating stuff. I showed that, look, you say your non-discrimination policy is one thing, but on the other hand, you're saying that this program is restricted to only people of a certain race. Or in the case of University of New Mexico, I found emails saying, "No, let's not hire this person because they were male and because they were South Asian," and the hiring committee wanted women for the role. Or even one email of a person saying, "I for sure don't want to hire any white men."
Now, you would kind of expect that maybe the institutions would feel some remorse or you would hope, but what I have found is that they mostly have stayed quiet, and I think it comes down to the kind of pressure they can expect. In a place like New Mexico, the institution, I think the universities can expect that they're not going to get much pressure from appointed trustees. They're not going to get much pressure, if any, from their state legislature. So of course, they can continue to carry out this policy with impunity. The only thing they'd have to worry about is maybe legal liability, but legal liability doesn't mean much when nobody wants to stand as a plaintiff. And you've got a real problem in the academic world where if you try to file a lawsuit on this basis, you might win a lawsuit, but you'll probably lose your chance of ever having a career in whatever discipline you've devoted your life to.
So in the past, in especially reform-friendly states, when I've published on these topics, states have really moved and they've moved quickly. In Texas, when I first wrote about this issue a year ago, Texas Tech had been carrying out this policy, punished people for, scientist for saying benign things regarding race and social justice. Almost instantly, Texas Tech reversed the policy and other universities followed, state leaders got involved. And I've seen that in a couple of other places. And so there really is a possibility to push back on this kind of policy. But like I said, it's well entrenched and so it's going to be a long battle.
Brian Anderson: Well, thank you John very much. We appreciate you coming on 10 Blocks to talk to us today about this extremely important subject. You can read more of John Sailer's work on the City Journal and NAS websites. We'll link to the author page in the description. You can also find John on X @johndsailer, S-A-I-L-E-R. And you can find City Journal there as well @cityjournal and on Instagram @cityjournal_mi. If you like what you've heard on today's podcast, please give us a nice rating on iTunes. John, thanks very much for the illuminating discussion.
John Sailer: Thank you so much, Brian.
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