Viewpoint Discrimination in Hiring at UVa – “Presumptively Unconstitutional”

University of Virginia Counsel James Iler

by James C. Sherlock

The University of Virginia engages today in in-your-face viewpoint discrimination in hiring.

The counterfactually named University of Virginia Office for Equal Opportunity and Civil Rights (EOCR) declares itself responsible for:

Recruitment and Hiring: facilitating and monitoring faculty and staff recruitment and hiring and training faculty and staff regarding applicable laws and best practices for search and hiring processes.

Indeed.

OECR has turned viewpoint discrimination into a science by “considering contributions to inclusive excellence” in hiring. Do yourself a favor. Open that page and click to open each section.

OECR helpfully offers hiring officials and search committees phrases as “examples of what could be added” to job applications at UVa.

[Faculty] “Candidates should also describe how their courses, research, and/or service have helped, or will help, students to develop intercultural competencies or otherwise advance excellence through diversity, equity, and inclusion within the institution.”

Those requirements are not viewpoint neutral because diversity, equity and inclusion as practiced at the University of Virginia are not viewpoint neutral. The DEI bureaucracy, including OECR, there is authoritarian, and proud of it.

OECR actively tries to screen out applicants who may disagree with the University’s thought police approach to DEI. In that pursuit, they don’t even just require commitment to DEI going forward.

The applicant must demonstrate previous activity.

That makes UVa a government a DEI spoils/patronage system, defined as a practice to reward active supporters by appointment to government posts.

If only the University had a legal department.

The University has reason to know better.

In Rosenberger v. Rectors and Visitors of the University of Virginia (1995), the Supreme Court declared: “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.” (emphasis added)

“All the more blatant” indeed.

In R.A.V. vs. City of St. Paul, a cross-burning case, the Court found that the city

“has proscribed fighting words of whatever manner that communicate messages of racial, gender, or religious intolerance. Selectivity of this sort creates the possibility that the city is seeking to handicap the expression of particular ideas. That possibility would alone be enough to render the ordinance presumptively invalid, but St. Paul’s comments and concessions in this case elevate the possibility to a certainty.”

“The Court concluded, “Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”

I suspect the Supreme Court would not be amused to a second trip into its docket by the University on the same violation.

I suspect also that any federal district court could quickly sort it out based on ample precedent.

Take a minute to read the guide for Evaluating (prospective employee) Statements on Contributions to Inclusive Excellence. That offers an unvarnished political litmus test.

The First Amendment protects against viewpoint discrimination in government employment.  In Duda v. Elder, 10th Cir., No. 20-1416 (July 27, 2021), the 10th Circuit commented:

the sheriff engaged in viewpoint discrimination—”an egregious form of content discrimination that occurs when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction” and that violates the core of the First Amendment.

From the First Amendment Encyclopedia of the Free Speech center comes the most direct definition and discussion of the illegality of viewpoint discrimination

“Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints.

For example, if an ordinance banned all speech on the Iraq War, it would be a content-based regulation. But if the ordinance banned only speech that criticized the war, it would be a viewpoint-based regulation.”

Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional. (emphasis added)

UVa does not tolerate speech that criticizes its DEI bureaucracy, and actively harasses employees who do not kiss its ring. Ask Professor Lomasky.

The University Counsel and all Associate University Counsel are appointed by the Attorney General of Virginia, Jason Miyares. I will presume that both Governor Youngkin and General Miyares are unaware of UVa’s current hiring practices.

I cannot say the same for the Board of Visitors, University President James Ryan or University Counsel Clifton Iler.

Ryan actively supports the viewpoint discrimination on display in hiring. We are left to wonder whether the Board of Visitors knows it has gone this far.

But Iler is a employed for the sole and exclusive representation of the University.

“The Office of the University Counsel represents the Rector and Visitors of the University of Virginia in all legal and regulatory matters and provides advice and counsel to the Board of Visitors, the President, executive officers, and other administrators, faculty, and staff in their official capacities.”

We wonder whether Iler is prepared to go to court to represent the University to defend its “presumptively unconstitutional” hiring practices.

I suspect we will find out soon enough.

This column has been republished with permission from Bacon’s Rebellion.