Court dismisses professor’s free speech lawsuit against UCSC over DEI statement

A judge on Friday dismissed a lawsuit filed last spring against senior UC Santa Cruz officials by a former University of Toronto professor who claimed the school’s requirement that applicants submit a written diversity statement in order to be considered for a faculty position violated his free speech rights. 

John D. Haltigan didn’t adequately show how his claim against UCSC had standing, Judge Edward J. Davila of the U.S. District Court of the Northern District of California, San Jose Division, ruled earlier this month. The judge gave Haltigan until Feb. 2 to amend his complaint or appeal.

In granting the UCSC officials’ motion to dismiss the case, Davila didn’t rule on the merits of the school’s requirement that applicants submit a diversity statement or whether it violated Haltigan’s First Amendment rights. Instead, the judge ruled that Haltigan hadn’t proved that he was “ready and able” to apply for the tenure-track position.

Haltigan’s attorney, Wilson Freeman of the Sacramento-based Pacific Legal Foundation, a libertarian public-interest law firm, told Lookout on Tuesday he is disappointed in last week’s ruling. 

“We disagree with the court’s decision,” he said. “We haven’t decided on the path forward, but we have several options.” 

In a statement, UCSC spokesperson Scott Hernandez-Jason wrote that the campus is happy with Davila’s decision to dismiss the case. 

“We are pleased with the Court’s decision granting the motion to dismiss based on the plaintiff’s lack of standing to bring his claims,” he wrote. “We restate our commitment to our mission — hiring employees who can foster academic excellence and success for our richly diverse and vibrant student body. The University stands ready to respond in the event that an amended complaint is filed.” 

Haltigan filed his lawsuit on May 18, 2023, after he saw a job posting listed on July 21, 2022, for a tenure-track position in UCSC’s developmental psychology program. 

The lawsuit names University of California President Michael Drake, UCSC Chancellor Cynthia Larive, psychology professor and psychology department chair Benjamin C. Storm and social sciences dean Katharyne Mitchell as defendants. 

At the time he filed his lawsuit, Haltigan had recently finished working as an assistant professor in the Department of Psychiatry at the University of Toronto. A Pennsylvania resident, he has a Ph.D. in developmental psychology from the University of Miami.

His attorney, Freeman, previously told Lookout that Haltigan saw the posting and thought it was a good fit for his skills. But after seeing the requirement to submit a statement on diversity and equity as one of the two items needed for the initial screening of applications, he stopped his application. Freeman added that his client chose not to apply because “there’s simply no purpose in terms of him applying because of his views on these issues.”

However, Davila ruled that the fact that Haltigan appeared to have taken no steps to try to apply for the position, such as preparing a research statement to submit with an application, affected his ability to file a claim. Haltigan’s claim in court filings that the “university is constantly hiring” and that the diversity statement requirement could prevent him from applying to future openings did not constitute an “actual or imminent injury,” the judge ruled, noting that the previous relevant job opening was in 2013. 

Haltigan has called the DEI statement requirements “a thinly veiled attempt to ensure dogmatic conformity throughout the university system.”

Last February, in a Substack post about the DEI statement requirement, he wrote, “I am committed to colorblind inclusivity, viewpoint diversity, merit-based evaluation, and value outreach to underrepresented groups in higher education.”

UCSC, and other UC campuses, provide job applicants with documents that say people who claim “they are ‘color-blind’ or ‘don’t see race’ for the sake of upholding a nonexistent meritocracy are perpetuating the discriminatory status quo by failing to acknowledge the systemic inequities facing BIPOC (Black, Indigenous and people of color).”

A UCSC web page about academic personnel provides candidates a rubric showing how statements or backgrounds in DEI concepts and programs may score higher or lower than others. 

For example, the rubric states that if a candidate believes “it’s better not to have outreach or affinity groups aimed at underrepresented individuals because it keeps them separate from everyone else, or will make them feel less valued,” they’ll receive a lower score than a candidate who “is aware of demographic data related to diversity in higher education.”

Freeman said his client filed the lawsuit in order to be considered “for the position on equal terms with individuals that possess the correct viewpoints as seen by the university.”

However, Davila wrote in his order that it’s not clear what would have happened if Haltigan had applied. For example, the judge wrote, while the rubric shows that certain diversity statements score higher than others, “there are no allegations that candidates must receive some threshold score as a ‘requirement’ for UC Santa Cruz’s openings or that a ‘high’ score would even accord a candidate any competitive advantage.” 

Freeman said he’s not yet certain what else he thinks he and his client would need to provide to prove Haltigan was “able and ready” to apply at the time the application was open. 

“I think that’s a really good question,” he said. “I simply can’t say for certain that I know exactly what the court is looking for here.” 

He added that Haltigan, who lives in Pittsburgh, is still searching for a tenure-track professor position and has “some employment” but said that he didn’t know the details of Haltigan’s current work.  

Freeman said Haltigan has yet to decide on whether or not to amend the complaint, file an appeal or end the case. 

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