Required academic DEI statements challenged in court, and Wisconsin ditches them

May 21, 2023 • 11:30 am

A law school prof once told me that he thought that required DEI statements for hiring academics was illegal: a violation of the First Amendment.  As “compelled speech,” analogous to loyalty oaths, this is a violation of the First Amendment that’s less well known than “the government cannot prohibit you from saying what you want.” Instead, it’s “the government cannot force you to say things you don’t want to say” stipulation, also legally part of the First Amendment.  That’s why no schoolchild can be forced to utter the Pledge of Allegiance.

When I asked the prof if universities could be sued for requiring academic job applicant to produce a DEI statement, I was told that yes, it could, but it would probably require someone with “standing”. That is, someone who had been personally injured by the DEI-statement requirement.  And that, of course, would be hard to do: you’d have to prove, for instance, that you were not hired because your DEI statement was insufficient.  Now there may be such cases, but can you imagine anybody who sued on these grounds could have a ghost of a chance of even having an academic career? Not these days, unless you want to teach at Bob Jones University.

And so, up to now we haven’t had lawsuits against compelled speech represented by required DEI statements. We don’t require them at the University of Chicago, but of course there are ways of trying to find out where a candidate stands on DEI without having a paper record.

As a First-Amendment hard liner, I personally object to DEI statements. They don’t tell us anything about a candidate’s suitability for an academic job, any more than knowing where they stand on abortion or the war in Ukraine. They are loyalty oaths—oaths that pledge fealty to the latest form of DEI. (You can bet that an applicant who parrots Dr. King’s statement that people should be judged by their character instead of their color is simply not going to be hired.) But I didn’t see any way to get rid of these statements save via universities realizing that they violate the Constitution, standing up for free speech, and ditching them voluntarily.

But all of a sudden these lawsuits seem to be in the air, though the first one seems to come from an applicant without standing. We also have another report that the University of Wisconsin system has deep-sixed required DEI statements.  (Click on the screenshots to read; quotes from articles are indented.)

A) The University of California System; article from Higher Ed Dive:

The skinny (which is skinny):

  • A former University of Toronto psychology professor sued the University of California system Thursday over its use of diversity statements in its hiring process.
  • These statements typically detail job applicants’ commitment to diversity, equity and inclusion, or DEI, and how they have furthered these ideals in their careers. But the ex-professor, J.D. Haltigan, in court documents alleged they are “loyalty oaths,” likening them to the ones that proliferated during the Cold War.
  • A UC spokesperson declined to comment Thursday, saying the system has not yet been served with the lawsuit.

Critics like Haltigan argue the statements force job applicants to pledge to progressive views. His lawsuit, alleging constitutional violations, is being backed by a conservative nonprofit, the Pacific Legal Foundation.

Specifically, he is suing UC President Michael Drake, as well as officials at the University of California, Santa Cruz, where Haltigan applied for a job.

“The University administration ensures conformity and compliance by promulgating detailed rubrics and guidelines that tell applicants exactly what to say and what not to say in their Statements,” the lawsuit states.

Haltigan may have standing if he can make a reasonable case that he was denied a job at UC Santa Cruz because his diversity statement was insufficient. But the next article suggests that this isn’t the case:

Another article, from the Santa Cruz Sentinel, says that Haltigan’s statement was targeted not just at the UC System but at this particular campus (UCSC):

An excerpt:

Haltigan, who earned his doctorate in developmental psychology at the University of Miami, is currently an independent scientist and Pennsylvania resident and is being represented by Sacramento-based attorney Wilson Freeman with the Pacific Legal Foundation.

“We’ve been keyed into the issue of DEI statements for a couple of years,” said Freeman. “We think it’s an important issue propagating, what we see as, a sort of orthodoxy throughout the academy. We think it’s a threat to the First Amendment and academic freedom. We think it’s especially bad at the University of California.”

While searching for jobs earlier this year, Haltigan came upon an opening he felt he was qualified for at UCSC. After reviewing the university’s requirement to include a diversity, equity and inclusion statement with the job application, Haltigan wrote about it on an online blog with the viewpoint that DEI statement requirements for academic job applicants have, “contributed to creating a corrosive and hostile environment that is intolerant of viewpoint diversity and is anathema to high-quality research and teaching.”

If you read his diversity statement linked above, you’ll see it’s actually called “Against the use of DEI Statements in Faculty Job Searches”, and includes stuff like this:

However, I believe that the use of diversity, equity, and inclusion (DEI) statements in evaluating candidates for positions in higher education and academia are anathema to the ideals and principles of rigorous scholarship, and the sound practice of science and teaching—all of which public universities were created to uphold. DEI statements have become a political litmus test for political orientation and activism that has created an untenable situation in higher academia where diversity of thought—the bedrock of liberal education—is neither promoted nor tolerated. Public trust in our universities has been severely diminished as a consequence. As the noted American sociologist and sociocultural scholar Philip Rieff noted decades ago in relation to the vogue for politically engaged teaching and scholarship “inactivism is the ticket.”

But then the possibility of him being hurt in this process is nil, for Haltigan hasn’t yet applied for the job. Apparently he wants to, and wrote the statement above in anticipation that he would. But without palpable damages, can he really sue? Bolding below is mine.

The lawsuit states that Haltigan is “committed to colorblindness and viewpoint diversity. He objects to DEI orthodoxy and believes individuals should be considered based on individual merit.” and also that, “If Dr. Haltigan were to apply for this position, he would be compelled to alter his behavior and either remain silent about the many important social issues addressed by the DEI statement requirement or recant his views to conform to the dictates of the university administration.”

Freeman said that Haltigan, who has not yet applied for a job at UCSC, just wants to be able to without a DEI statement attached.

“All that he wants is to be considered with respect to his qualifications for the position,” said Freeman. “So, an ideal outcome would simply allow him to be considered on his merit. We think that the First Amendment academic freedom demands that outcome, and hopefully we’ll get that.”

Freeman and the legal team with the case are preparing to move for a preliminary injunction in the coming weeks and anticipate the university’s response. According to Scott Hernandez-Jason, assistant vice chancellor of communications and marketing at the university, because the defendants have not yet been served with legal papers, UCSC officials did not have a comment about the lawsuit.

I guess he doesn’t want the job, and perhaps is simply trying to gin up a test case.  Apparently the suit has been filed, but the defendants haven’t seen it yet. It’s all deeply weird.

B) The University of Wisconsin eliminates required DEI statements (from Wisconsin Public Radio):

I may have mentioned this before, but the UW system is getting rid of DEI statements because the Republican state legislature is refusing to fund the state universities if they require such statements:

The University of Wisconsin will no longer require diversity, equity and inclusion statements from job applicants, UW System President Jay Rothman announced Thursday.

The move comes after Republican Assembly Speaker Robin Vos has threatened to cut state funding to Wisconsin’s public universities. Specifically, Vos has criticized DEI programming at UW as an attempt to “indoctrinate” students with taxpayer dollars.

It’s common for universities to ask potential faculty to submit statements describing how they’ve used their work to further diversity, equity and inclusion. Rothman did not provide an estimate of how many UW positions have previously required such statements, but described the number as “limited.”

“We remain absolutely committed to the principles of DEI,” Rothman told reporters Thursday. “But when some people believe mandatory diversity statement in employment applications are political litmus tests, then we are not being inclusive.”

That’s almost funny: the President of the UW system declaring that DEI statement are NOT INCLUSIVE.  Well, he has a point in that if you have ideological views opposed to the most “progreessive” version of those statements, and what you say doesn’t really bear on your qualifications as a faculty member, then yes, you’re excluding people with certain ideological views.

Rothman made another statement that sounds sensible (my emphasis):

Lawmakers are currently in the process of drafting the state’s next two-year spending plan, after the Legislature’s Republican-led finance committee scrapped almost all of the budget proposed by Democratic Gov. Tony Evers. The new fiscal year takes effect July 1. In the meantime, the Republican-controlled Committee on Colleges and Universities has been holding a series of hearings on what conservatives charge is liberal bias and a lack of intellectual diversity on UW campuses.

Rothman used the final hearing Thursday to express support for academic freedom and free speech at UW. He also took the opportunity to announce to lawmakers the planned elimination of DEI statements.

UW officials have no plans to back budget cuts for positions or programming dedicated to DEI, Rothman told reporters Thursday. He also said the elimination of DEI statements would not preclude university officials from asking about the promotion of diversity and inclusion during job interviews. And, he said, that definition of diversity should be broad.

“It is time to expand what we think of inclusion to include issues around veterans, disability status, socioeconomic status, first generation students status, and viewpoint diversity, in addition to dealing with underrepresented groups in our society,” Rothman said. 

Yes, by all means foster diversity, which is, as the Bakke case ruled, an inherent good in a university. But ethnic diversity is only one type of diversity, and if diversity is an inherent good—as opposed to being done for reparations to minority groups—it must be so because it fosters viewpoint diversity, which is surely be the main form of diversity you seek in a student body.

At any rate, no school should require DEI statements. They are unconstitutional and, in the end, inimical to the functioning of a university.  This is why the Foundation for Individual Rights in Education (FIRE), while not opposed to efforts to increase diversity, strongly opposes any such efforts that impede academic freedom and freedom of speech. Those include DEI statements in hiring and promotion of academics.

26 thoughts on “Required academic DEI statements challenged in court, and Wisconsin ditches them

  1. Haltigan not having applied (yet) doesn’t seem like a huge obstacle to me. If he can show he would have been a credible, and perhaps strong, candidate on the basis of his research/teaching, and was only put off from applying because of the DEI requirement, then to me it looks like he’s made a reasonable case for having standing. Presumably his lawyer/funders have some credible precedents to cite.

    1. He has not, and evidently will not, apply. From the complaint:

      68. The DEI Statement requirement for this position makes Dr. Haltigan’s application futile. His stated views on “colorblind inclusivity,” “viewpoint diversity,” and “merit-based evaluation” alone, especially in the context of the Initial Screening Requirement, make it impossible for him to truthfully compete for the position.

      69. If Dr. Haltigan were to apply for this position, he would be compelled to alter his behavior and either remain silent about the many important social issues addressed by the DEI Statement Requirement or recant his views to conform to the dictates of the University administration.

      The complaint further alleges (34) that UCSC has adopted “detailed rubrics [sic] and guidelines to ensure uniformity.”

      The brief makes no explicit argument for standing, beyond the fact that he is qualified in the sense of meeting the requirements for the position, save for his unwillingness to lie about his beliefs. The brief is available here.


      1. He should have at least submitted an application in which he wrote something like “I refuse to be compelled to speak about these issues” in his DEI statement, and thus getting a rejection letter/email, hopefully explicitly outlining that the reason for the rejection was his DEI statement. The fact that he never even tried to apply makes his standing argument so much weaker, and I can’t imagine a court granting it.

  2. The entire Diversity Statement charade inevitably stimulates reconsideration among those of us who (like myself) have long maintained a vaguely Leftish outlook. 3 points that point toward re-thinking are obvious.
    (1) The growth of these exercises in compelled speech was fueled by what I call the trans-Left: authoritarian bullies who identify themselves as “liberal” and oh-so-concerned with “social justice”, the classic tropes of The Left. (2) The result of this operation by self-identified Leftists has been a culture of conformism more severe and intimidating than that imposed by nominal conservatives in the supposedly terrifying 1950s. (3) The most effective cure has been, as the Wisconsin case reveals in spades, a threat by conservative state legislators to decrease the flow of university funding. So, we have to admit ruefully that the best hope for restoring intellectual freedom to the groves of academe turns out be not sensible center-Right academics, but rather those conservative troglodytes in the state legislature. And that means we depend on red states, not blue states, to bring academia back.

    1. Unfortunately, both sides are increasingly beholden to their most extreme supporters, so any relief that comes from red state legislatures is also likely to come with a raft of its own problems.

      The pendulum swings side to side, slowly, each swing moving further from the center, seemingly inexorably pushing us to a state of complete schism and erosion in social trust and confidence in critical institutions. With every passing day of the new culture wars of the 2010s, the pendulum looks more and more like an all-encompassing Sword of Damacles, liable to threaten not only those in power, but society as a whole.

      1. If legislation in red states returns their universities to, say, the atmosphere like that
        in the terrible 1950s—that will be an improvement over the present situation.

        Hey, the combination of the sword of Damocles with a pendulum was first invented by Edgar Allen Poe, and it also involves a pit (presumably analogous to the university).

        1. We have absolutely no idea what future legislation from red states will look like, but, if some of the legislation we’ve already seen regarding public schools and libraries are anything to go by, a lot of it won’t be pretty.

          The only thing that gives me hope is that much of such legislation may not make it past the courts (I’m not talking some of the current legislation, but what I imagine future conservative legislation would look like), or that perhaps an equilibrium can be reached if the 95% left-leaning and liberal professors can create enough pushback. But red state legislation is just as likely to severely curb (left and liberal-coded) academic freedom and resources as left-wing activism and institutional capture has in the opposite direction. I have zero confidence that red state legislators will somehow be a moderate force, rather than an extreme one that tries to take every single inch they can in the name of their own ideology.

          This is where the culture wars of the 2010s (and their further intensification starting around 2015) has led us. It’s extremism on both sides. Each side wants to take as much ground as they possibly can, in an effort to completely silence their opponents and suppress their ideas.

    1. The unvarnished truth. It is a term from the US military meaning naked, as in only in your skin. Hence “the skinny” is “the naked truth”.

  3. I’ve been thinking about the standing issue a lot. Wouldn’t someone who refused to proffer a DEI statement that was required to even be considered for the job have standing, especially if they explicitly refused on the basis of not wishing to be compelled to speech in which they did not believe or simply didn’t want to express? That would immediately disqualify then from being considered as an applicant. It could be argued that refusing to take part in a requisite portion of a job application can’t result in injury, as you’re removing yourself from the pool of applicants before you can even be considered; however, since this is a clear violation of the “compelled speech” rule (at least when it comes government-run schools), it can also be argued that the injury is not being allowed to apply/be considered in the first place.

    I’m sure there are plenty of prior
    cases regarding job application requirements somewhere approximating this area, but I don’t know them. Paging Ken and any other lawyers in the house!

    Regardless, we know that the schools using DEI statements will just use the resumes and interviews to suss out how committed any given applicant is to the DEI ideology, the same as they will if affirmative action is made “illegal.” It’s not even slightly difficult to completely get around bands on both DEI statements and affirmative action for any school that wants to do so. Overturning these things will be more of a moral/cultural victory than a practical one.

    1. Building on GCM’s response to comment #1 above: I’m suggesting that people actually apply for the job, but either refuse to include the DEI statement or, perhaps even better, write in their actual “DEI statement” simply that they refuse to be compelled to write the statement’s required speech.

      1. The beauty is this latter tactic could actually get you the job, or at least an interview. The university would be reluctant to give you a paper trail of rejection saying that your DEI Statement was incomplete or unacceptable, knowing that you would use their words to show standing.

  4. In at least California, applicants are first screened by their DEI scores before their applications are even considered based on academic merit. So it seems to me that an applicant who isn’t interviewed could have standing to sue if they could prove that their application was nixed at the DEI review stage. That information may be obtainable as public information. Of course that might damage their job prospects everywhere, but maybe there is someone who could afford to try this.
    And once again Republicans are the sane ones, which is a shame.

    1. Yes, one big problem with the whole standing issue is that, without discovery, potential plaintiffs can’t get their hands on the private emails that almost 100% exist in tons of cases (almost all of them not ever attempted) showing that they were rejected based on their refusal to “play the game” within their DEI statement or refusal to include one with their application (hopefully with an explanation of why they refused).

      1. Mark, what you claim is not universal. I am at UCSC, the specific campus involved in the lawsuit. I was recently on a search committee and although we were required to use the DEI statements in the selection process, we were given considerable latitude on how the DEI statement is used. I think there may be some hires where DEI is used as the sole first criterion; in three of the recent searches I am aware of, this was not the case and academics was also part of the first selection process. IN some cases all of the application materials can be used all at once (a holistic search). And search committees have lots of leeway on how much to weight rankings of DEI versus other aspects, so some of the more DEI heavy searches are designed by the search committees, not based on directions from the powers that be from above.

        I have made it clear to some of my colleagues that I am not a big fan of DEI statements but I suspect I may be in the minority at UCSC. However, like Jerry I am in favor of some affirmative hires; just not sure about the best way to do that.

    2. (To our gracious host: I’m sorry for making so many posts in this thread, but the edit has disappeared for me again)

      Also, regarding your last sentence: my parents asked me last week if I’ve “become a Republican” because I speak out against stuff like this, our uncontrolled Southern border, trans issues, and the media/activist/education system’s pushing of racial animus among the public. They even agree with me about our border and the trans issues! But they still think I might suddenly be a conservative Republican because they get literally all their “news” from MSNBC and Facebook, and they’re told every day that people who hold more these views are usually evil, racist, transphobic, deeply conservative, Trump-loving Republicans.

      I was honestly shocked. I’ve never voted for a Republican in my entire life and my views on these things haven’t even changed over the years! What’s changed is what people like my parents are being told in the media and online all day every day, and that has completely warped their minds into thinking that anyone who holds three or four opinions that somewhat agree with some Republicans must also be on the side of evil. It’s literal brainwashing. (And of course it’s taking place on the other side as well via their sources of “information”)

      1. I just saw the new Schrader film with Joel Edgerton (who’s become — hell, has been for a quite a while now — one of the most versatile talents in pictures), Master Gardener. It’s really, really good.

        1. Ooh! I hadn’t heard about the new one. That man never stops working. Thanks for the tip!

  5. Good news at the University of Wisconsin. It’s interesting that Rothman barely pushed back and, in fact, was facile enough to construe the ban as itself advancing diversity. Gotta love that.

    But perhaps we’re seeing light at the end of this tunnel. Do university presidents really support these DEI statements? Or are they in place simply because of far-left intimidation? My guess is the latter and that university presidents actually *welcome* lawmaker intervention in the case of these statements. Threats from lawmakers give university presidents precisely the cover they need to end the DEI hostage situation.

    1. In other words, what we need is threats of the same kind from legislators in blue as well as red states. Unfortunately, this won’t happen unless the blue legislators get worried about the views of their constituents. So, we need public education about the dangers (to education, to medical training, to scientific research, etc.) of the DEIshchina. One step in this direction is to make merciless fun, Maher-style, of its absurdities. Another step is to lose the terror (referred to by Carbon Copy above) of being associated with Republicans on some matters.

      1. Yes. We need blue legislators or governors to get on board, probably via the means that you suggest. Governors, especially, want their states to rank high in education, medical training, research, and the like, and the DEI apparatus is making those desired rankings more difficult to achieve.

  6. There have been many commentaries over the years rebutting the latter-day attempts to cast Dr. King as advocating for a colour-blind society and opposing affirmative action. His aspirational dream about content of character was just rhetoric, oratory, like most of what Barack Obama said. In practice he was a vigorous proponent of race-based quotas in hiring to continue until the the economic disparities caused by racism had been erased. There was no small amount of spite: Do something special for blacks to pay back for the special things done to us by whites. .He would have thought modern DEI efforts to be pale echoes of quotas. He didn’t live to see the Bakke decision, of course, which began the great undoing of AA.

    I’be cited an early reference to show that as far back as 1996 the Republicans were trying to cast him as anti-affirmative action, taking him at his dream’s words.

    So citing Dr. King’s views on a DEI statement might not be the kiss of death after all.

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