The Duty to Monitor Diversity Training

In the 2019 case of Marchand v. Barnhill, the Delaware Supreme Court held that Delaware law requires a board to “make a good faith effort to put in place a reasonable system of monitoring and reporting about the corporation’s central compliance risks.” In that case, the central compliance risk related to food safety; the company, Blue Bell, was “one of the country’s largest ice cream manufacturers” and “suffered a listeria outbreak in early 2015.” Other corporate governance experts have argued that cybersecurity may constitute a relevant generally applicable cognizable risk, because “[h]ighly public data breaches have put every corporate director and boardroom on notice” of the risk. To the extent notice of significant risks can trigger a duty of oversight, is there an argument to be made that such a duty exists vis-à-vis diversity training, including antiracist and anti-bias training as well as the many related “social justice” initiatives promulgated by public and private entities? After reading Helen Pluckrose and James Lindsay’s Cynical Theories, one might well conclude that recognizing such a legal duty is overdue.

As I write this essay, Cynical Theories is the #1 best seller in “Modern Philosophy” on Amazon. It both explains and accuses what the authors refer to as Social Justice Theory. It uncovers the post-modern roots of propositions like (I am paraphrasing): “Only Whites are racist (and irredeemably so)”; “Math and science constitute White Supremacy (as do defenses of free speech and liberal democracy)”; “Whites should not be permitted to comment on claims of systemic racism,” etc. Pluckrose and Lindsay effectively portray Social Justice Theory as an unfalsifiable faith that promotes destructive means in service of advancing “the Truth According to Social Justice (Theory).” They explain how and why Social Justice Theory has rejected the dream of a colorblind equality such as that espoused by Rev. Martin Luther King, Jr. and others. Instead, Social Justice Theorists pursue a world order that divides us at all times and in all places into warring groups of race and gender that accuse one another of endless microaggressions and other abuses. The book explains how the very institutions that are now rushing to embrace this theory will ultimately and inevitably be torn apart by it—and that this is a feature, not a bug, of Social Justice Theory. That warning should be particularly relevant to those active in corporate governance.

Given that cognizable risks may give rise to a duty to monitor, I have identified at least six risks relevant to a duty to monitor diversity training.

(1) The risk that diversity training may violate antidiscrimination laws. In How to Be an Antiracist, Ibram X. Kendi asserts: “The only remedy to racist discrimination is antiracist discrimination. The only remedy to past discrimination is present discrimination. The only remedy to present discrimination is future discrimination.” However, institutions cannot opt out of applicable antidiscrimination laws simply by labeling discrimination “antiracist.” Individuals responsible for implementing diversity training should be cautious about implementing training that sorts individuals into groups based on race or gender stereotypes. Such training can create “a hostile environment where [for example] whites are subject to being … harassed.”

(2) The risk that diversity training may infringe individuals’ freedom of conscience (implicating the right to stay silent). We have all heard lately that “Silence is Violence” and that “It’s not enough to be, ‘not racist’ …. we want white people to be actively anti-racist.” However, in W. Virginia State Bd. of Educ. v. Barnette, the U.S. Supreme Court noted that “Any spark of love for country which may be generated in a child or his associates by forcing him to make what is to him an empty gesture and recite words wrung from him contrary to his religious beliefs is overshadowed by the desirability of preserving freedom of conscience to the full.” Thus, those implementing diversity training should be wary of training that includes instructions along the lines of: “You are going to have to talk about your power and your privilege. You will need to name your privilege.” As Samantha Harris has argued in a related context: “Princeton cannot, consistent with the right to freedom of conscience, require faculty to actively participate in a training” that amounts to coercive thought reform.

(3) The risk that diversity training will undermine the institution by chilling civil discourse and the pursuit of truth (implicating freedom of speech). In Cynical Theories, the authors describe the attitudes of prominent Social Justice Theorists towards open debate: “Robin DiAngelo calls anything except deferential agreement ‘white fragility’; Alison Bailey characterizes disagreement as ‘willful ignorance’ and a power play to preserve one’s privilege; Kristie Dotson characterizes dissent as ‘pernicious’; Barbara Applebaum dismisses any criticism of Social Justice Theoretical methods as ‘color-talk’ and ‘white ignorance.’” Those who insist on the one hand that diversity is critical for institutional success should be careful about using the other hand to sign off on diversity training that undercuts viewpoint diversity.

(4) The risk that diversity training may undermine the institution by exacerbating divisions. It likely goes without saying that institutional decision-makers should avoid implementing programs that come with a meaningful risk of “fracturing institutions from within.” Yet this is precisely what the authors of Cynical Theories suggest may flow out of the Social Justice Theory that apparently undergirds much of our current diversity training: “The beliefs that the decline in racist attitudes has largely been a mirage and that white people only allow people of color rights and opportunities when it is in their interest to do so can produce profound paranoia and hostility, especially among activists, on college campuses, and within competitive workplace environments. These feelings occasionally erupt, fracturing institutions from within, especially when well-meaning people, who don’t want to incessantly defend themselves against accusations of racism and white supremacy, either submit to, retreat from, or avoid these situations.”

(5) The risk that institutions will suffer backlash for expending excessive resources on questionable diversity training. To paraphrase Matt Taibbi, all the foregoing “would be less absurd if the effort were not being led in an extraordinary number of cases by extravagantly-paid white consultants like DiAngelo and Howard Ross, a ‘social justice advocate’ whose company billed the federal government $5 million since 2006 to teach basically the same course on ‘whiteness’ to agencies like NASA, the Treasury, the FDIC, and others.” More recently, the Loudoun County, Virginia, Public School district received some not-so-favorable press coverage for spending “$422,500 in taxpayer funds since 2018 on diversity training inspired by critical race theory, which claims racism is inherent in nearly every aspect of America.” How well-informed are these expenditures? And how far are we from bad-faith decision-making if leaders have consciously failed to fully inform themselves regarding relevant opportunity costs, etc.?

(6) The risk that institutions will suffer backlash for mandating training that argues the U.S. Constitution is illegitimate and that our nation is systemically racist. As Hans Eicholz put it in an earlier Law & Liberty piece:

And here then is the heart of the new radicalism of our time. All that is concerned with liberal institutions, such as markets, contracts, property, or constitutions, the rule of law, custom and precedent, are interpreted as the expression of systemic asymmetries of power. Being thus categorized, nothing of the politics of the U.S. or the economics of a largely market driven economy can offer anything redemptive or hopeful, and no quarter is to be given in the push for change.

Exactly how long do institutional decision-makers expect to be able to support training that advances this “new radicalism”—sometimes at state institutions via mandatory training—before they get pushback from those who have sworn to uphold the Constitution of the United States and defend it from enemies both foreign and domestic?

We have recent evidence of at least some of these risks manifesting. On September 4, 2020, Russel Vought, OMB Director, issued a memorandum directing federal agencies to “identify all contracts or other agency spending related to any training on ‘critical race theory,’ ‘white privilege,’ or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil.” On September 15, 2020, it was reported that the DOE was investigating Princeton for “admitting ‘systemic racism’ on campus.” And on September 22, 2020, President Trump issued an executive order “to combat offensive and anti-American race and sex stereotyping and scapegoating” fostered by various forms of diversity training. Institutional decision-makers implementing diversity training should take notice of these risks, and apparently some already are.

Obviously, the foregoing are broad-brush arguments warranting numerous qualifications that have been omitted for space considerations. I am working on a project to flesh out these concerns in more detail. The point here is not to reject diversity training. In fact, President Trump’s EO expressly notes that: “Training employees to create an inclusive workplace is appropriate and beneficial.” Rather, the point is to ask whether institutional leaders are effectively monitoring the possible risks created by diversity training. Adding Cynical Theories to a reading list that includes White Fragility and How to Be an Antiracist is a good place to start remedying any shortfall.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 19, 2020 at 10:58:44 am

This is an interesting, thought-provoking post. I have a question, though, about how well-rooted it is in the law. Delaware's duty to monitor case law (Caremark and its progeny) is about the duty of the board to monitor compliance with the law by officers and employees. There have been attempts to extend the duty to monitoring other sorts of business risks, but the courts have not been receptive so far (I disagree with the courts on this, but it is what the courts say that counts). Of your six risks, only the first seems to fit within that Caremark duty. The second and third risks do invoke constitutional law, but doesn't the state action doctrine imply that private businesses can't violate the legal rules you invoke there? The last three are all business risks.

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Brett McDonnell
on October 19, 2020 at 14:29:09 pm

Imposition of CRT in a corporate setting may violate Title VII of the 1964 Civil Rights Act. Disclosure by publicly-traded corporations of the adverse employment impacts of CRT may be required by Section 10(b) and Rule 10b-5 of the Securities Exchange Act of 1933.

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on October 19, 2020 at 20:04:12 pm

I wonder if your statement can or should also be extended to "Disclosure by publicly-traded corporations of the adverse employment impacts of [ getting a degree or pursuing "studies programs" from certain named colleges and universities "]. Should something like this be included in comparable rules (of the SEC or otherwise)? AKA "being woke is hazardous to your prosperity". Is it discriminatory to not hire certain people to protect from "infecting" your existing work force/ human capital? Also AKA "avoiding excessive diversity". I could see it branded as a subset of the "corporate responsibility" movement to sooth the feelings of all stakeholders around the commercial and corporate enterprise, not just to advancing the financial interests of the owner-shareholders.

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on October 20, 2020 at 08:59:58 am

Thanks for you comment, Brett. The short answer is that I am definitely using Marchand as a jumping off point, and I agree that the Caremark duty of oversight would likely need to expand to reach all the risks I describe. Of course, our law is full of examples of creative arguments leading precisely to such changes. Regarding state action, I believe there are 11 states that currently prohibit discrimination on the basis of political affiliation, with some of those extending that to discrimination on the basis of political opinion -- such laws may bring more of these risks within the current ambit of Caremark. Finally, there is the broader issue of fiduciary duties generally. To ignore the cited risks may breach, for example, the duty to become informed, even when "conscious disregard" of those risks doesn't implicate Caremark.

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Stefan Padfield
on October 19, 2020 at 11:58:19 am

“The point here is not to reject diversity training.” Perhaps it should be. Diversity training is an imposition on the privacy of human integrity. It is sufficient for an individual to appreciate each global-citizen’s personhood.

Also, a more urgent consideration for reform is the humility of the USA founders’ 1776 Declaration of Independence. For reliability to “the good People,” colonial representatives, then subjects of the Church of England, humbly appealed to “the Supreme Judge of the word.” The U.S. framers did not lessen the newly globally-independent USA's humility in the 1787 U.S. Constitution.

But the U.S. Congress in 1791 (unconstitutionally---without Congressional authority to interject religion) imposed civil defiance in the religion clauses of the First Amendment. Congress, the executive after President George Bush imposed faith-based-policy, and the Supreme Court who uphold legislative prayer despite my "niggling" may reform to encourage humble-integrity---reform twenty-first century pride to 1776 sufficient-humility. James Madison ought to turn over, wherever his afterdeath is. And the Knights of Columbus (1954s “under God”) may consider sufficient humility toward the Supreme Judge of the world “in order to” secure the civic privacy to enjoy their salvation during their afterdeaths.

Erroneous political correctness is not new. The Supreme Judge of the world self-evidently holds human individual men and women responsible to constrain chaos on earth (Genesis 1:28). The Apostle John erred to accuse non-Christians of practicing hate (John 15:18-23). Citizens in 2020 need not follow John to believe in Jesus. And Martin Luther King Jr. erred to ignore the Ethiopian Tewahedo Bible, canonized in 360 AD; https://en.wikipedia.org/wiki/Orthodox_Tewahedo_biblical_canon.

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Phillip Beaver
on November 12, 2020 at 11:43:58 am

The constant refrain should be this: you can’t fight racism with racism. Kendo gives the game away - he explicitly says you need to use discrimination to fight discrimination. This is not only illegal, it is morally repugnant to most Americans, and it’s the strongest argument against CRT training.

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on November 24, 2020 at 19:41:49 pm

Kendi's "racism" and "anti-racism" are merely two sides of the same coin. Kendi believes race is the all-telling and only characteristic determinative of human flourishing. Racists everywhere agree with him. Meanwhile, Rev. ML King's dream turns to ashes.

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on November 16, 2020 at 18:36:39 pm

These are not mere thought crimes, they are unthought crimes.

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Image of Mike Bond
Mike Bond
on November 20, 2020 at 08:56:19 am

"The point here is not to reject diversity training."

That should be precisely the point. "Diversity training" truly is "coercive thought reform" and is truly offensive. It's the modern American version of people being forced to mindlessly chant in unison The Thoughts of Chairman Mao and no self-respecting individual should tolerate it.

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Henry Miller
on November 29, 2020 at 11:51:57 am

Yes, exactly. "Diversity" is antithetical to every principle on which teams and communities are built and sustained. You can have a team or have "diversity" , but not both. You can have liberty, that is self-governing individuals , or diversity but not both. "Diversity" focuses entirely on differences, which by definition divide. Under "diversity", our differences resulted from differences in power and, therefore, cause divergence.

In contrast, Liberty focuses on our shared humanity. If we have different gifts, it is because we share a common Nature and Creator. It is only on this basis that our " differences " can make us stronger.

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Thurston Hanley
on November 22, 2020 at 13:25:15 pm

[…] The Duty to Monitor Diversity Training In the 2019 case of Marchand v. Barnhill, the Delaware Supreme Court held that Delaware law requires a board to “make a good faith effort to put in place a reasonable system of monitoring and reporting about the corporation’s central compliance risks.”” […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.