In Students for Fair Admissions v. Harvard (2023), the Supreme Court held that colleges and universities couldn’t engage in racial discrimination in the name of diversity. The 45-year-old dispensation from civil-rights law that the court effectively overturned had never applied to employment decisions. But its end ought to provoke institutions to scale back “diversity, equity and inclusion” initiatives more broadly. Some appear to be doing so: The Massachusetts Institute of Technology and the Faculty of Arts and Sciences at Harvard said recently they would no longer require “diversity statements” from prospective hires.
Yet there is evidence that many universities have engaged in outright racial preferences under the aegis of DEI. Hundreds of documents that I acquired through public-records requests provide a rare paper trail of universities closely scrutinizing the race of faculty job applicants. The practice not only appears widespread; it is encouraged and funded by the federal government.
At Vanderbilt University Medical Center, a large hiring initiative targets specific racial groups—promising to hire 18 to 20 scientists “who are Black, Latinx, American Indian, and Pacific Islander.” Discussing a related University of New Mexico program, one professor quipped in an email, “I don’t want to hire white men for sure.”
Both initiatives are supported by the National Institutes of Health through its Faculty Institutional Recruitment for Sustainable Transformation program, or First. The program gives grants for DEI-focused “cluster hiring” at universities and medical schools, promising eventually to spend about a quarter-billion dollars.
A key requirement is that recipient institutions heavily value diversity statements while selecting faculty. The creators of the program reasoned that by heavily weighing commitment to DEI, they could prompt schools to hire more minorities but without direct racial preferences. That’s the rationale behind DEI-focused “cluster hiring,” an increasingly common practice in academia. The documents—which include emails, grant proposals, progress reports and hiring records—suggest that many NIH First grant recipients restrict hiring on the basis of race or “underrepresented” status, violating NIH’s stated policies and possibly civil-rights law.
In grant proposals, several recipients openly state their intention to restrict whom they hire by demographic category. Vanderbilt’s NIH First grant proposal states that it will “focus on the cluster hiring of faculty from minoritized racial and ethnic groups, specifically Black, Latinx, American Indian, and Pacific Islander scientists.” The University of Texas Southwestern Medical Center and the University of Texas at Dallas jointly proposed hiring 10 scholars “from underrepresented groups,” noting that the NIH First program specifically identifies racial minorities and women as underrepresented.
Emails reveal candid discussions about the perceived aim of the program. In April 2023, a professor running the University of New Mexico’s cluster hire emailed Jessica Calzola, the NIH program official overseeing the First program, to ask whether Asian-Americans count as underrepresented. The professor later wrote, “I really need a response at least by tomorrow, because it is now holding up our search teams.”
In reply, Ms. Calzola reiterated the program’s official policy: “My confusion is how this information can hold up search teams since candidates are to be evaluated and considered based on their credentials and not race/ethnicity/gender, etc.—all hiring decisions are to be made following the law and avoiding any type of bias (as you have stated and acknowledged).”
Ms. Calzola’s seemingly straightforward response confused her correspondent. “I am now wondering if I am missing something in terms of what we are supposed to be doing,” the professor emailed other members of the leadership team. She wondered if she placed too much emphasis on minority status.
Yet she hesitated to take Ms. Calzola’s word at face value, citing earlier remarks: “My first thought is that Jessica has to write about hires in this manner (she’s hinted at that before on zoom).” (Ms. Calzola referred my inquiry to an NIH spokeswoman, who said in a statement: “Consistent with NIH practice and U.S. federal law, funded programs may not use the race, ethnicity, or sex . . . of a prospective candidate as an eligibility or selection criteria.”)
A colleague responded: “For me as long as we are diversifying our departments and go with what we wrote in the proposal I am happy.” She then made clear her intention to keep one specific group out of consideration: “I don’t want to hire white men for sure, we did a very good job in the grant with the tables and numbers and that’s what we should follow in my opinion.”
Yet the confusion at UNM makes sense. Records show a repeated tension between the NIH First program’s official nondiscrimination policy and how the funded projects have played out—which at times looks a lot like discrimination.
At its inception, NIH First was widely understood not to involve racial preferences. In 2020, shortly after the program was announced, Science magazine published an explanation: “Not all of the 120 new hires would need to belong to groups now underrepresented in academic medicine, which include women, black people, Hispanics, Native Americans, and those with disabilities, says Hannah Valantine, NIH’s chief diversity officer. In fact, she told the Council of Councils at its 24 January meeting, any such restriction would be illegal and also run counter to the program’s goal of attracting world-class talent.”
Yet multiple programs have stated their intention to limit hires to those with “underrepresented” status. One job advertisement, for a First role at Mount Sinai’s Icahn School of Medicine, notes: “Successful candidates will be early stage investigators who are Black, Latinx, or from a disadvantaged background (as defined by NIH).”
Some grantees even admit such preferences in documents sent to and reviewed by the NIH. A joint proposal from the University of Maryland School of Medicine and the university’s Baltimore County campus states that all scientists hired through the program will meet the NIH’s definition of “underrepresented populations in science.” Drexel University’s program, which focuses on nursing and public health, provides its evaluation rubric in a progress report. Among its four criteria: “Candidate is a member of a group that is underrepresented in health research.”
This raises questions about compliance with Title VII of the Civil Rights Act of 1964, which prohibits race discrimination in employment. The First program’s website highlights regulations requiring that federal agencies ensure grant recipients comply with nondiscrimination law. The most basic implication is that universities can’t refuse to hire someone, or prefer one candidate over another, because of race or sex. But emails show that this has been happening.
At the University of New Mexico, the First leadership team heavily scrutinized the race and sex of applicants. “Just to be sure: what was the ethnicity of Speech and Hearing’s first-choice candidate?” a UNM team member asked in an email.
“She identified as URM in her application, right? I am confused, maybe I am misremembering,” a team member wrote of a different candidate. Another responded, “It looks like she said she was a ‘native New Mexican.’ We checked, and she said she’s white.”
Another team member wrote about a third candidate: “He is LGBTQ so should fit NIHs definition of URM. In my opinion, women are more underrepresented in our department when you consider demographics.”
The team had veto power over the program’s job searches, which it took seriously. In one email, a math-and-statistics search committee sent a list of proposed finalists. The first candidate, a woman, was recommended without qualification, while the second candidate, a South Asian man, was recommended if the leadership team decided he was a “good fit for the program.” A third candidate, a woman, was recommended as a backup.
One leadership team member emailed her colleagues about the South Asian candidate, citing the NIH’s priorities: “Is this a second look person that NIH would like?” UNM’s grant proposal explains that “at each point in which the applicant pool is narrowed, all applicants from underrepresented groups are given a ‘second-look’ before they are eliminated.” The question, in other words, was whether the South Asian candidate counted as underrepresented. (A UNM spokeswoman said “the second look procedure is a longstanding UNM hiring process.”)
The team agreed the answer was no and nixed him. As one pointed out, “We’ve said that Math is really low on women.” Another chimed in, excited to interview the two remaining candidates, noting “their DEI statements are strong.”
UNM appears to have violated NIH First policy, which states that programs “may not discriminate against any group in the hiring process.” The UNM spokeswoman said in a statement that “the email correspondence among members of the UNM FIRST Leadership Team do [sic] not represent the University of New Mexico’s values nor does it comport with the expectations we have of our faculty” and that “as a result of this unfortunate circumstance,” the university is instituting a required “faculty search training/workshop for all . . . faculty search committee members.”
Yet other universities signaled to NIH that they also intended to engage in race and sex preferences. Northwestern University’s program, which focuses on areas like cancer and cardiovascular health, promises to hire faculty from “underrepresented groups.” Its grant proposal suggests this excludes one particular group: “Our faculty development programming intentionally seeks to elevate URG”—underrepresented group—“faculty to equal privilege with white men in academia.”
Records repeatedly show NIH First grantees following through on their promises. In a letter of support for Florida State University’s project, that university’s associate vice president for human resources declared, “I firmly believe in and reaffirm this project’s mission to create an under-represented minority faculty cohort.”
Hiring documents show that special attention was paid to job candidates’ minority status. In a survey on job finalists, one Florida State faculty member wrote, “Is the applicant a URM, as defined by the NIH? Relatedly, I’m not saying this is happening, but I believe consideration of self-reported sexuality in the hiring process would go against official FSU nondiscrimination policy.” An FSU spokeswoman said in an email that “the Florida FIRST program followed the guidelines set forth by the NIH.”
That search took place as the Florida legislature was beginning to curtail DEI at public universities. Other programs raise similar red flags regarding state law. California’s Proposition 209 prohibits preferential treatment by race in admissions, hiring and “the operation of public employment.” A San Diego State University proposal says nonetheless that it will require shortlists “to include at least 25% of applications from historically underrepresented groups.” The San Diego program even divvies up certain faculty duties by race: “Whenever possible, the chair of the hiring committees should be a faculty member of color”; “the hiring committees will be required to have at least two (50% recommended) faculty of color”; and so on.
A university spokesman said in an email that “SDSU relies on the Building on Inclusive Excellence (BIE) faculty hiring program,” that “BIE is compliant with both civil rights law and California Proposition 209,” and that “it is incorrect to state that ‘the SDSU program . . . divides certain faculty duties by race.’ ”
Taken as a whole, these documents shed new light on the practice of cluster hiring. They explain why some in academia seem to treat the practice as a form of legal racial quotas. In addition to the responses already noted, representatives of the University of Maryland, UT Dallas and UT Southwestern said that their institutions comply with civil-rights laws and don’t discriminate on the basis of race. Drexel, Northwestern, Mount Sinai and Vanderbilt didn’t reply to inquiries.
The documents I reviewed point to a large-scale sleight-of-hand in the application of the NIH First program. They give all the more reason to reconsider one of the most controversial practices in higher education, mandatory diversity statements, which provide a convenient smokescreen for discrimination. Lawmakers would be wise to investigate this practice closely—especially the NIH First program.
In a comment on her decision to end mandatory diversity statements, MIT president Sally Kornbluth noted that such statements “impinge on freedom of expression.” That’s true, but fails to capture the full extent of the problem. Diversity statements mask racial discrimination. The NIH has ensured that they’re widely used in medicine, where excellence should matter most.
Mr. Sailer is a senior fellow at the National Association of Scholars.
