☆ Lawsuit claims UC's forced DEI alignment is “illegitimate,” discriminates against Asian faculty
Charles-Alphonse Dufresnoy: The Death of Socrates, 1650. Image in Public Domain
Pacific Legal Foundation attorney Wilson Freeman analyzes the ongoing lawsuit between PLF's client—aspiring psychopathology professor Dr. John Haltigan—and the University of California. Freeman asserts that UC's “DEI litmus tests” violate the Constitution twofold, and that Asian applicants are statistically hurt the most by this “aggressive” mandate. An Opp Now exclusive.
Opportunity Now: Tell us about what PLF is aiming to accomplish through J.D. Haltigan v. Michael Drake. Some folks are wondering if Dr. Haltigan's trying to get all DEI/diversity statements in California struck down; but it's far more nuanced than that, correct?
Wilson Freeman: The lawsuit is targeted at the University of California's DEI requirements, specifically that they admit to testing applicants to certain beliefs related to race. In other words, if you want to apply to be a UC professor, you must acknowledge that racial disparities in the field are your personal responsibility to remedy, you can't say anything negative about affirmative action, and you have to attest you treat people differently based on their race (what UC views as a remedy for racism).
With that said, a win in this lawsuit wouldn't necessarily make it illegal for a local college to require a “diversity statement.” After all, that could just mean a comment on if you're comfortable working with people of diverse racial backgrounds, or even about your views related to DEI. Our client, plaintiff Dr. Haltigan has submitted diversity statements when applying at other universities. What makes this specific practice of UC's problematic is their ideological mandate regarding DEI topics. They discriminate based on how you answer the DEI prompt. And this requirement runs contrary to permissible objectives of a public university.
ON: This isn't the first time the UC system has been accused of enforcing ideological “litmus tests.”
WF: Right. Take the Cold War-era “loyalty oaths” imposed at the University of California system. In the 1950s, UC's Board of Regents established a strict ideological requirement for all professors. When some dozens of individuals refused to sign onto the oath, they were terminated within the day. Then, California's Court of Appeals ruled that those individuals must be reinstated.
This first shows that the Board of Regents, historically speaking, is willing to impose ideological mandates on its faculty. Second, it's interesting what the Court of Appeals said then about ideological neutrality. The court pointed out that if we aren't careful, the UC system will become a vehicle for the Board of Regents' “ephemeral political ideology” at any given time.
By our Constitution, public education in California must be free of politics; but this idea of ideological neutrality appears to be breaking down with these DEI litmus tests.
ON: Analyze this more for us. What does the Constitution say about screening instructor applicants by viewpoint?
WF: The Constitution (First Amendment) prohibits government discrimination to individuals based on their viewpoint. Obviously, public colleges can discriminate against professors if they don't believe in foundational realities (e.g., if an aspiring physics professor doesn't believe in gravity). But DEI ideology has nothing to do with the teaching jobs UC's asking people to hold, such as in the case of Dr. Haltigan, our client. They're political beliefs, ideologies—not foundational realities. So we're dealing, first, with viewpoint discrimination here. And it's especially pernicious in the academic context because the First Amendment embraces academic freedom, which UC's explicitly undermining.
Our second complaint relates to compelled speech, what we call “unconstitutional conditions.” A public entity can't condition a job or benefit—even one you aren't entitled to—on the basis of you giving up a constitutional right (in this case, attesting belief to a particular set of values). Currently, UC says you won't even be considered for a job unless you agree with certain ideas about DEI.
Overall, this is a clearly illegitimate practice, through which UC's enforcing ideological conformity in faculty, full stop.
ON: Some, like ousted SJSU professor Dr. Elizabeth Weiss, have pointed out that minorities are often harmed by DEI statement mandates. It makes sense that folks of non-American cultures—and native tongues other than English—might find it challenging to play the DEI game.
WF: If you look at the data, the actual outcome of the DEI statement mandate—and especially the requirement that search committees only consider that statement when advancing candidates—has mostly been to discriminate against foreign (particularly Asian) applicants, in favor of “underrepresented minorities” (Latinos, Native Americans, and African Americans). The process also favors white applicants, who usually know how to respond “well” to DEI prompts. So I agree that the people most disadvantaged by these aggressive application requirements are candidates unfamiliar with America's DEI culture. I expound upon this idea in my National Review editorial.
And yet, this is all fine according to UC’s Board of Regents—because they end up with a “correct” racial mix. But that's just not a permissible goal of a public institution, as affirmed by the Supreme Court this summer in Students for Fair Admissions v. Harvard.
ON: Many locals worry that institutions sacrifice the most qualified faculty candidates by ensuring they align in DEI topics. Is this a fair concern?
WF: This is true—without a doubt. And on the contrary, it's untrue that DEI-aligned professors are naturally going to be more competent.
The UC's requirement expressly favors ideology over qualifications because, as we allege in our complaint, the DEI statement is considered (sometimes by itself, sometimes along with the research statement) apart from an individual's qualifications. Search committees, when deciding who to advance in the process, aren't permitted to look at someone's full application—just their DEI statement (and, again, sometimes also the research statement). So of course, they aren't able to hire the most qualified candidate. This is hurting science. It's hurting the qualifications of local university faculty. And ultimately, who suffers as a result? Students in the UC system who are learning from DEI-approved—but perhaps not the best or well-suited—instructors.
I've spoken to many current and aspiring professors about the ideological monoculture being enforced in the UC system through these DEI statements. So it's not just about weeding out ideologically diverse candidates during the application process. There's also public pressure, both formal and informal, on faculty to conform to these DEI principles. People are leaving their teaching positions because of it.
ON: And when they do, we lose the richness and growth opportunities that come with viewpoint diversity. Isn't it true that many people think public education—of all places—should encourage different perspectives about these important topics like race and equity?
WF: Exactly. And whether we win or lose this case, our struggle against this deeply entrenched ideology will continue. Dr. Haltigan is willing to stand up and take a position here. Others, like experienced UC Davis professor Dr. Abigail Johnson, have also criticized the system's DEI mandate. But most UC professors and applicants don't feel free to voice their disagreement, unless they're willing to jeopardize their employment or tenure opportunities.
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