Judge tosses suit against UC Santa Cruz’s DEI statement

A federal judge has rejected a lawsuit by a psychology lecturer challenging a UC Santa Cruz requirement that applicants for faculty jobs describe how they would promote diversity on campus.

John Haltigan, formerly an assistant professor of psychology at the University of Toronto, said he did not seek a professorship at Santa Cruz because his views would have made his application futile. But U.S. District Judge Edward Davila of San Jose said Haltigan can’t show he was harmed by the requirement without applying for a position.

A plaintiff challenging the denial of employment or some other benefit “lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit,” Davila said in his ruling Friday, quoting a past decision by the 9th U.S. Circuit Court of Appeals. But he denied the university’s request to permanently dismiss the lawsuit and said Haltigan could file an amended suit, presumably after applying for a faculty position.

The suit, in which Haltigan is represented by the conservative Pacific Legal Foundation, is one of dozens around the country challenging policies by universities and employers requiring applicants to submit statements supporting diversity, equity and inclusion, or DEI. The Supreme Court ruled in 1978, in a case from UC Davis, that public universities could consider a student’s race in admissions decisions, but ruled last year that affirmative action admissions based on race were unconstitutional.

When UC Santa Cruz invited candidates for a psychology professor’s position in July 2022, it required candidates to include a statement on DEI. The university said it would give the highest scores to applicants who showed “clear and detailed ideas … for advancing equity and inclusion” and low scores to those who offered only vague statements about “treating all students the same regardless of background, etc.”

In his lawsuit, Haltigan called the requirement “a modern-day loyalty oath” akin to Sen. Joseph McCarthy’s anti-communist crusade in the 1950s, and “a thinly veiled attempt to ensure dogmatic conformity.”

He said he believes in “colorblind inclusivity” and “meritbased evaluation” that is not based on race or ethnicity. While the university did not require applicants to endorse DEI, Haltigan said, its criteria showed that those who “fail to demonstrate conformity with the beliefs and ideology” represented by the policy “know that their application is futile.”

But Davila said Haltigan could have applied for the position and had not shown it would have been futile. Santa Cruz did not exclude such candidates, the judge said, and might have decided to hire Haltigan by finding he had shown “excellent qualifications or especially relevant research background.”

Under established judicial standards, Davila said, a wouldbe job seeker who could have applied for the position but chose not to do so cannot challenge the employer’s criteria.

The university welcomed the ruling.

“The University of California, Santa Cruz is committed to inclusive, welcoming, and enriching learning environments fostering success within and beyond our classrooms,” spokesperson Scott Hernandez-Jason said in a statement Tuesday.

“We restate our commitment to our mission — hiring employees who can foster academic excellence and success for our richly diverse and vibrant student body.”

Haltigan could file an amended lawsuit or appeal the ruling. No decision has been made yet, said attorney Wilson Freeman of the Pacific Legeal Foundation.

“The University of California’s DEI Statement requirement renders applications like Dr. Haltigan’s, that disagree with the prevailing orthodoxy on equity and racial balancing, futile,” Freeman said Tuesday.