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):
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.