May Government Compel "Viewpoint Diversity"?

Free Speech and Higher Education

The First Amendment generally forbids viewpoint discrimination - that is, it forbids government from regulating speech because of the viewpoint that it contains. The government may not forbid speech that is critical of the governor, while allowing speech that praises the governor.

May the government compel “viewpoint diversity”? May it it deny federal funds to universities that do not show “viewpoint diversity”?

The issue might seem tricky. A goal of the First Amendment is to promote viewpoint diversity. How can it possibly violate the First Amendment to require viewpoint diversity? But the issue actually is less tricky than it might seem.

A relevant case is Miami Herald Publishing Company v. Tornillo, decided in 1974. There the Court struck down a statute that created a “right to reply” to criticism, by the press, of a candidate for nomination or election. The Court ruled that the government could not require that kind of viewpoint diversity in the newspapers. “The choice of material to go into a new paper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public official -- whether fair or unfair -- constitute the exercise of editorial control and judgment.”

Those words could easily invoked by an institution of higher education, objecting to a requirement of viewpoint diversity.

Still, a newspaper is one thing; a university is another. And a mandatory right of reply is one thing; a withdrawal of federal funds is another. Miami Herald is suggestive and perhaps more than that, but it does not resolve the issue.

Let’s step back. There are two big problems with a requirement of viewpoint diversity. The first is that it might be unconstitutionally vague. The second is that it might constitute impermissible interference with the freedom of (private) institutions of higher education to make their own judgments about who shall be hired, who shall be admitted, and what shall and shall not be taught.

Begin with vagueness. What is “viewpoint diversity”? How do we know if we have it? If a computer science department is committed to viewpoint diversity, what should it be expected to teach? A physics department? An anthropology department?

Should a biology department be expected to offer courses showing that Darwin was 100% right, and also 100% wrong? Should a history department be required to hire Marxists, or people who think that the Holocaust did not happen?

Should a law school be required to hire critical race theorists, originalists, or Communists, Benthamites, or people who agree with Ronald Dworkin? Should a law school be required to hire people who think that Brown v. Bd. of Education was wrong? Who reject Marbury v. Madison? Who think the U.S. Constitution is terrible? Who believe in slavery? Who deplore capitalism? Who love capitalism?

Should an economics department be required to hire Hayekians, and also people who believe in central planning, and also Marxists, and also people who believe in behavioral economics. and also people who think that behavioral economics is nonsense? Should a Divinity School be required to hire atheists? Mormons? Jews?

In short: The range of “viewpoints” is very wide, and any requirement of “viewpoint diversity” is impossibly vague. It does not give people fair notice. It would inevitably allow government to pick and choose. These are the canonical problems with vague edicts.

At the moment, the idea of viewpoint diversity is being wielded by people who think, correctly, that conservative points of view are underrepresented on campus. But the requirement of viewpoint diversity greatly outruns that reasonable thought. (If we are committed to viewpoint diversity, we should want all sorts of points of view, not simply conservative ones.) To require “more conservative voices” would be an unacceptable form of viewpoint discrimination. To require “viewpoint diversity” more broadly is to require — well, who knows?

Here is a fundamental problem: The range of “viewpoints” is very wide, and in deciding which ones are required by a commitment to “viewpoint diversity,” any government overseer will have to discriminate on the basis of viewpoint.