Applicant Cannot Challenge University’s DEI Statement Requirement Because He Never Applied For Position

CATEGORY: Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education
DATE: Feb 28, 2024

Around 2016, the University of California (UC) established the Advancing Faculty Diversity (AFD) program to support projects that increase racial and gender balance on University campuses.  The AFD-funded pilot program at UC Santa Cruz encouraged search committees to use Diversity, Equity, and Inclusion (DEI) statements in the faculty selection process and engage in more in-depth discussion with applicants about their statements.  Over time, UC Santa Cruz allegedly began to place more emphasis on faculty candidates’ diversity statements and created detailed rubrics for evaluating diversity statements.  The University published a “starting rubric” that assigns high scores for applicants’ DEI statements that express certain sociopolitical ideas and low scores for those that express otherwise.  The University’s website also provided a list of “common myths” about DEI faculty recruitment and a page for resources on Antiracism.

John D. Haltigan holds a Ph.D. in Development Psychology and was previously an Assistant Professor at the University of Toronto.  On July 21, 2022, UC Santa Cruz posted an open hiring announcement for a tenure-track position in Developmental Psychology.  The Psychology Department required a DEI statement in order to apply and urged each candidate to review the scoring rubric posted on the University’s website.  The posting stated that the initial screening of candidates would only be performed using the DEI statement and a research statement.

Dr. Haltigan alleged that he desired a position at the University, but that the DEI statement requirement made his application futile due to his views.  Dr. Haltigan alleged that if he were to apply for the July 2022 opening or any other openings at UC Santa Cruz, he would be compelled to alter his behavior and either remain silent or recant his views in order to conform to the beliefs of the University administration.  In light of these concerns, Dr. Haltigan did not apply or prepare any application materials for the July 2022 opening.

In May 2023, Dr. Haltigan filed suit against UC Santa Cruz, seeking a preliminary injunction to stop the University from enforcing the DEI statement requirement against him.

UC Santa Cruz filed a motion to dismiss for lack of standing.  In their motion, UC Santa Cruz argued that Dr. Haltigan did not suffer an injury because he only expressed some future intentions to apply to the position, and never submitted himself to the application process he sought to challenge.

Dr. Haltigan argued that he was ready and able to apply but that any application submitted would have been futile.  The Court was not persuaded.

First, the Court found that a general interest in applying was not enough.  Here, Dr. Haltigan had not undertaken any preparations in anticipation of applying to the July 2022 position or any future UC Santa Cruz positions.  Dr. Haltigan had applied to other positions with less stringent DEI requirements, but the Court determined that this was not enough to show an imminent or concrete injury arising from UC Santa Cruz’s application process.

Second, the Court determined that Dr. Haltigan had not submitted himself to the process and the University’s policies did not unambiguously show that an application would have been futile.  The application process was subjective, and it was possible that UC Santa Cruz may have accepted Dr. Haltigan’s application on the basis of his standalone qualifications or relevant research background.  There was no direct and disqualifying consideration stemming from an applicant’s DEI statement, and therefore there was no evidence that Dr. Haltigan’s application would have been futile.

The Court dismissed Dr. Haltigan’s claims.

Haltigan v. Drake (N.D.Cal. Jan. 12, 2024) 2024 U.S.Dist.LEXIS 6944.

Note: Hiring practices that create the perception that hiring decisions are based on an individual’s race or other protected classification can create legal risk.  While this case was dismissed for procedural reasons, other lawsuits have challenged the use of mandatory faculty DEI statements.

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