All Things with Kim Strassel: Taking On DEI
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From the opinion pages of the Wall Street Journal, this is All Things with Kim Strassel, a Potomac Watch podcast. Welcome to All Things with Kim Strassel. President Trump roared into office and immediately set about dismantling the federal government's diversity, equity, and inclusion infrastructure, leveling a blow at a pernicious movement that has seeped into our institutions in recent years. And joining us this week is a man who knows all about

the viciousness of that movement, Ilya Shapiro. Ilya, in 2022, dared to send out a tweet about Joe Biden in the Supreme Court, was targeted for it by DEI and ideological opponents, and his position at Georgetown Law School put in doubt, his life turned upside down. Ilya, who is now a senior fellow and director of constitutional studies at the Manhattan Institute, has just published a book

Lawless, the Miseducation of America's Elites, in which he recounts his experience, but also dissects what's gone wrong in America's law schools and how we fix it. Welcome, Ilya. Great to be with you, Kim. And thanks again to you and your colleagues at the Journal who were so supportive of me personally and are all on top of this important issue plaguing America. Well, it was good to see you stand up to it. And by the way, congrats on the book. I know how hard they are to get out.

Why don't you just start by briefly reminding listeners what did happen to you in 2022 when that mob came after you? Right. So it was actually three years ago today, as we're recording this, that the infamous tweet that elevated my brand, if you will, and became the seed for what will become this book Lawless started. So I had been at the Cato Institute, the libertarian think tank, for nearly 15 years, got an opportunity to move to Georgetown Law School to head up their Center for the Constitution.

A few days before I was to start that job was when news of Justice Breyer's retirement broke. And I'm a Supreme Court expert. That was a subject of my last book, Politics of Judicial Nominations, called Supreme Disorder. And so I was commenting to the media all day about the succession fight and all that.

That night, I was in a hotel room, doom-scrolling Twitter, not a best practice, and getting more and more upset that President Biden was holding to his campaign promise to appoint a black woman. Not because there's anything wrong with appointing a black woman to the Supreme Court, but because I thought you shouldn't restrict

your candidate pool, whether for janitor or justice, by race and sex. And so I offered up a hot take, also not a best practice, a tweet, an ex-post now you call it, and went to bed. And all hell broke loose online. My ideological enemies went after my head. It ended up being a four-month-long so-called investigation as to whether I was violating Georgetown's harassment and discrimination policies.

at the end of which one of the high-powered lawyers they paid to advise them found that I wasn't an employee when I tweeted, and so the policies don't even apply. But then I got the fine print from the DEI office, which said that if ever I offended anyone again, I'd be back in the star chamber. I realized that I couldn't work that way. I couldn't do the job I was hired for. And so I made a loud resignation, publishing my resignation letter in the pages of the Wall Street Journal and using this

that I've been given ever since to shine a light on the rot in academia generally and legal education specifically. Well, and we are all thankful that you've been doing that. And now you have this book. And let's talk about law schools because I think this is so important. I really enjoyed reading it. I recommend everybody read it, not just to hear about your story, but to

Because you really dive into one section of the education world, although one you say is very key. And I think we'll talk about that more in a minute. But one thing I think is really important when we talk about what's gone wrong in education and you get to this is that when we talk about DEI, it's not a right-left thing.

I mean, I'm old enough to remember that there's been a long complaint about liberal professors on campus, and they've long outmatched or had many more numbers than conservative ones. But you say that the DEI movement is something very different, distinct, and as a result, far more dangerous, and that it's changing the very nature of law school education. Talk about

that. Right. This is not the decades-old complaint that conservatives have about hippies taking over the faculty lounge. In fact, those hippies, the Berkeley Free Speech Movement in the 60s, would now be considered retrograde white supremacists by these radicals. And that's the problem. It's not the liberal bias, and there is clearly ideological discrimination in hiring faculty. We can get to that if you like. But

The problem is the illiberal takeover. The idea that the traditional mission of higher education to pursue knowledge, to have open inquiry, civil discourse, all of those are illegitimate. In the law school context, free speech, due process, equal treatment under law, these are all illegitimate tropes. They're white supremacist tropes.

All of our institutions, the law itself is illegitimate because it doesn't reflect or has baked into it all of these privilege categories and inequality needs to be burnt down, disassembled and rebuilt according to a different intersectional matrix as the postmodern critical theory goes. And that's reflected in the classroom. It's reflected just as much, if not more perniciously in the bureaucracy with the explosion of non-teaching staff.

That has become the tail that wags the dog of these institutions. And it's reflected in the weakness of the leaders, the deans and university presidents that refuse to enforce their own rules to fulfill the core, again, not right, not left, but just the basic mission of any educational institution. And in the context of law schools, training lawyers to uphold the rule of law, to be the gatekeepers of our legal and political institutions. That's why this is so dangerous today.

specifically in the law school context. Yeah. And that's what I wanted you to talk about a little bit more is that, again, I can make the argument that DEI in any institution or setting is very problematic. But your point is that its presence at law schools is particularly corrosive in that

The entire ideology behind this, the entire mission of DEI is to essentially tear down our current and longtime understanding of the law. And these are the people, the folks that we are training are meant to be, as it were, somewhat kind of the future referees of our society, the gatekeepers, right? Right.

The lawyers are supposed to be able to think critically, to see every side of a given legal issue so that they can advise and represent their client to the best of their ability so that they can advocate whether it's in court, in the boardroom or anywhere else for legal positions that it's their duty to advance. Well, if certain legal positions are outside the Overton window, say the permissible range

of expressible views, then not only are you going to do a disservice to your client and be a poor lawyer, that is, these law schools are failing their own students in training them to be lawyers, but you're undermining our entire system of justice. We're going to take a quick break. When we come back, more with Ilya Shapiro.

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Welcome back. I am Kim Strassel here this week with Ilya Shapiro, Senior Fellow and Director of Constitutional Studies at the Manhattan Institute. Let's remind people of some examples of how this has played out, because it's one thing to talk about it at a high level.

But I think it's important to remind everyone what's actually happening as a result of this, too. We've obviously had in your story as an example of this, the hounding and the canceling of lawyers or academics who don't conform. By the way, I think canceling is actually too mild of a term. These people are essentially the goal is to disappear them from public life. The revoked invitations to outside speakers at university or their harassment at the hands of chanting mobs.

If they do end up speaking, I'm reminded of U.S. Court of Appeals Judge Kyle Duncan, who was treated outrageously at Stanford. The Wall Street Journal wrote about that some. The changing of curriculum in law schools. And then, of course, most vividly and recently, the anti-Semitism and embarrassing behavior of law school students who took part in the riots and campus shutdowns after Hamas's attack on Israel on October 7th.

Am I missing anything? I mean, how else has this been playing out? Yeah, well, those are the visible things and things kind of above the waterline. Bill Ackman, the Harvard donor who's kind of had the scales fall from his eyes after October 7th, wrote in a very important essay the same day that Claudine Gay resigned Harvard's presidency after her disastrous performance in the congressional hearing with several university presidents. He wrote about how antisemitism is the canary in the coal mine, that wherever it pops up,

It's a signal that there are lots of problems underneath, pathologies, moral corruption, academic relativism, all host of things that is wrong with higher education that's now been this crisis in higher ed that's been thrust into our national discourse. And October 7th and the reaction to it really has shown how both faculty and university administrative leaders are

are failing to instill the appropriate campus climate, just the ability to have civil discourse, the ability to have dialogue and open inquiry. You know, university leaders are quite good at instilling whatever cultures or values they want, be it entrepreneurship, public service, social justice, what have you. This dedication to talking around issues and, you know, being civil about it and things like that, not screaming at federal judges, as you said, in the in the

Stanford example, where the DEI dean herself egged on the mob, screaming at the judge, we hope your daughters get raped and things like this. That all is above the waterline. What's going on below, though, is, again, inculcating these lawyers with the idea that certain views are not allowed in polite society. And it's not just DEI. For example, Paul Clement, former U.S. Solicitor General, possibly the very best lawyer

certainly appellate lawyer in the country, had to leave his firm after winning a Supreme Court argument in a Second Amendment case, Bruin, a couple of years ago with his partner, Aaron Murphy, because his firm, Kirkland & Ellis, which was in years past thought to be one of the more conservative big law firms,

His partners seemed squeamish about that, or they used the excuse that their clients, their corporate transactional clients, didn't like it. It's kind of reminiscent of what happened in the '50s and '60s when law firm leaders wrung their hands and said, "Well, we'd like to hire more black lawyers, but our clients won't stand for it." You've been talking about some of the factors that go into this, and specifically the ideology, but you name a couple of other ones too.

One of the more interesting chapters I read in your book, and you have a whole chapter on this, is the bureaucracy. And I don't think that gets a lot of attention. You were talking about things above and below the waterline. But you make a very persuasive case for why this massive growing bureaucracy is such a huge part of what's gone wrong. And that bureaucracy is essentially the growth of left-leaning but non-teaching staff.

administrators, and paper pushers. Who are these people? What do they do? And how do they feed this movement? I mean, there's even an industry group, the National Association of Higher Education Diversity Officers. No, no. I may have switched around. Yes, with thousands of members.

You know, even before DEI, this weird inflection point that we've had in our culture that a lot of people say 2014 is when it really started around then. But even before that, there was a growth in this non-teaching staff. And this is why the story isn't just about DEI. That's a huge part of it.

But the bureaucracy that grows to kind of hold students' hands, student affairs, kind of the imputation of all sorts of cognitive behavioral therapy, safetyism. You know, students need help processing traumas like election returns that go the wrong way or other political developments.

And that started before the return of critical theory and the explosion of DEI in the last decade. But in the last decade, it has been largely DEI in such that now in every institution, there are more non-teaching staff

than faculty. And their institutional values, their industry values of this national association say, are not academic freedom. They're not pursuit of knowledge. Again, agree or disagree with what the left-leaning professoriate might do. But here, it's not even an intellectual or academic pursuit. It's activism writ large. They're the ones who are instituting orientations for freshmen or first-year law students.

And they're the ones that, like in the public sector, bureaucracies, their incentives that they face in basic public choice economic theory is to justify and grow their authority and their budgets. And so they manufacture outrage. They conduct the investigations. They do all these punishments.

And deans of even elite law schools cower before these diversity officers. It's a problem ideologically and in terms of the culture of these places. It's a problem financially, of course. The University of Michigan, for example, spends more than $30 million a year on DEI programs, on full-time staff, let alone the part-time folks. Imagine spending that money on, I don't know, student tutoring or scholarships or things that actually help the disadvantaged student. We're going to take one more break.

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From the opinion pages of The Wall Street Journal, this is All Things with Kim Strassel, a Potomac Watch podcast. Welcome back. I am here with Ilya Shapiro, who has a new book out, Lawless, the Miseducation of America's Elites. You have a stunning statistic in that chapter, a 2021 survey.

of 65 large universities found that the average school had more than 45 people devoted to DEI. And this was the bit that really got me. More than the average number of professors teaching history. Wow. That's just kind of stunning. And I think, as you know, the scary thing is, is that this is an industry whose existence depends on, as you say, fomenting more discord and suggesting there are more problems and causing more controversy.

And also, obviously, for all those parents out there driving up the cost of education. And Kim, I do want to make one point that has kind of gotten misunderstood with President Trump's first week executive orders against DEI through the federal government and contracting, etc. And that's that what we've been talking about, these DEI officers, these are not these exclude these counts.

the legally mandated compliance with federal and state civil rights laws. So you take out the folks who are handling Title IX, take out the folks that, you know, all of the stuff that is legally mandating, accommodating disabilities. This is this other ideologically indoctrinating staff. I think that's a really good point. And I want to talk about that a little bit more, Donald Trump's orders and how it plays into this. But

You go through ideology, you talk about bureaucracy. The last major factor that you single out and you have some pretty harsh criticism for, and how many of us do not, are for the leaders of these schools, the deans and the university presidents.

who, as you note, are not necessarily woke radicals, but they just have no backbone. Give us some examples of how that... I mean, we've seen some of it, but how is that a problem on a day-to-day basis? Sure. Yeah, they're generally not radicals. They're generally not social justice warriors. They're careerist bureaucrats who very skillfully climb the greasy pole and respond to incentives and act as bureaucratic, or as I call it, educratic operators. And so when there are

flashpoints, cultural clashes, cancellation attempts like what happened with me. They're spineless cowards. Dean Treanor, Bill Treanor at Georgetown Law, it's not that he fired me right away. It's not that he upheld my rights to free speech per their policy, saying I might disagree, but this is not an issue. He tried to punt it, and he did punt it to the DEI office to investigate. And at the end of the day, at the very end of my investigation, again, he kind of

wrung his hands and said, well, he's reinstated on this technicality, but what makes this such a tough case is because of the clash of these very fundamental values we have, equity and free speech both. Well, no, I mean, this is not rocket science. And Heather Gerken, the dean of Yale Law School, also there, you know, Yale has gotten a bunch of black eyes. But here's an example of how external pressure can maybe change things a little bit. She wants to be the president of an Ivy League school at some point. Seeing all this negative publicity, you

is not good. So she changed some policies. She read the Riot Act to student leaders. She hired Keith Whittington from Princeton, a non-progressive, threw him a bunch of money to have this new civil discourse and free speech program. Hired a young professor who had clerked for Justice Alito, if you can imagine, occupying the faculty lounge at Yale. So deans, not just DEI deans, but head deans can sometimes respond if they're savvy to

to very slight external pressures. To mix metaphors, sometimes what gives me some hope, what makes me less pessimistic than when I left Georgetown two and a half years ago, is that these are often Potemkin villages guarded by paper tigers. Well, that's my next question, is I appreciate some of those steps, even though some of them I think are fairly minor given the challenge here. But how do we fix it? You mentioned

Bill Ackman, we have finally seen donors who've been stepping up and saying, "We're not going to keep giving money to these institutions if they're going to just close their eyes to this radical behavior." We've seen some companies now saying that they're not going to continue their DEI programs. But in the specific context of law schools

What do we start to do to turn this around? I'm for all of the above. And by the way, I'm not convinced it can be turned around. It could be that we need new institutions. I just spoke at the University of Austin last week. Wonderful new place that just opened its doors. Its first class of freshmen that are just

really motivated and entrepreneurial and the faculty is excited. And so that's great. And there's centers and institutes being started at Arizona State and UNC and Florida State and University of Florida, all these different places that are essentially doing what colleges were supposed to be doing in the first place, excellence and civics and rigorousness and all of these sorts of things. So that's all to the good. With law schools, there are complications. One is that

The ABA has a monopoly on accrediting law schools. I have a whole chapter on the ABA and its foibles. And, you know, one easy step that the Trump administration should take is take away that accreditation monopoly so these schools don't feel pressured to do all these DEI initiatives and competing accreditors can arise.

But I'm all for exogenous shocks, as economists would put it. So that means state legislatures, a number of which have passed legislation to eliminate DEI bureaucracy, get rid of ideological litmus test diversity statements. Chris Ruffo and I developed model legislation two years ago on this that's been adopted in whole or in part by

I think we're up to 20 states or so, or some executive actions as well. Employers, after October 7th, when they saw so many law students defending Hamas, the managing partners of most of the big law firms wrote an open letter to the deans of America saying, what kind of law schools are you

raising. About 14 federal judges are boycotting Yale, Stanford and Columbia for hiring clerks. So let's see what can happen. The new Trump administration, new Secretary of Education, new head of civil rights at the Justice Department, they should really be investigating these schools for denial of civil rights, free speech. All of these things really put some teeth into these enforcement mechanisms. Let me ask you about the Supreme Court. You are a Supreme Court expert.

I mean, the reality is the kernels of a lot of this, the idea behind DEI, began with what we used to call affirmative action. It morphed into racial preferences. But this was sanctioned by the court.

And granted, at the time, it was not meant to be forever. And yet it is not only endured, but it's morphed into this and essentially new forms of discrimination. And we're now seeing the courts somewhat stepping back from that. The Chief Justice John Roberts in 2007 had a line that it still just sticks with me now.

that really recognizes the problems that we've created for ourselves. And he wrote, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." And the court now seems to be taking that up a little bit more. We have this important ruling in 2022, Students for Fair Admission versus Harvard, which

rollback racial preferences in universities. But does the court need to do more on this? Do judges need to do more to lay out the problems with this sort of discrimination? Because that's what's happening. The price of liberty or sanity in this case is eternal vigilance. And just like the desegregation orders in the Jim Crow South endured massive resistance and there was not

overnight change there after Brown v. Board. Similarly, there are going to be cases, there already are in the K-12 space that the court has denied where selective schools simply get rid of testing and have a black box for admissions. The court needs to, will have to be involved. The problem is this kind of litigation, you know, to determine whether the Yales, the Harvards, the Stanfords, the Columbias are evading the Supreme Court rule is discovery heavy. That means it takes a lot of hours, it's expensive,

And it takes some time to really figure out what's going on. But yes, we can't take our foot off the gas. And just as it took decades to get to where we are after LBJ's affirmative action executive order, which is one of the ones that President Trump rescinded through the Bakke case in the late 70s, where the court by one vote appraised the case.

the what was supposed to be a limited use of race as a factor in admissions to satisfy the compelling state interest in educational diversity. Whatever that means, it has turned out to mean the explosion of the diversity industrial complex.

All of these things will take time to unwind. But clearly, this is something that the American people want. They want to unwind it. They want to live in a post-racial, colorblind, meritocratic society. I think that is part of, we talk about the vibe shift reflected in this past election. I think this is central to it. Ilya, thank you. I agree with you. Thank you for coming on the show. Once again, his book is Lawless, The Miseducation of America's Elites.

We want to thank our listeners. We are here every week. If you like the show, please hit that subscribe button and you can write to us at pwpodcast at wsj.com. America's energy future begins now. More American oil and natural gas means more jobs, more security, and more innovation. America's moment is now. Learn more at lightsonenergy.org. Paid for by the American Petroleum Institute.