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Scholars debate legality of DEI hiring requirements amid bans, lawsuits

‘Polarized ideological’ environment is driving away professors, lawyer says

Scholars continue to debate the legality of diversity, equity, and inclusion requirements in hiring practices as a group of California professors challenge the practice and other states ban it.

Some say DEI statements are a way universities can ensure faculty are dedicated to helping a “diverse set of students” to thrive. But others contend the policies have become an ideological test that pushes scholars with different views out of academia.

Brian Soucek, a law professor at the University of California at Davis, told The College Fix in a series of recent emails he believes “legislative prohibitions on the use of DEI statements in faculty hiring are a gross violation of academic freedom.”

“The core of academic freedom is the idea that academic merit should only be judged by disciplinary experts in each field—not by outsiders like university administrators, trustees, donors, or legislators,” he said.

DEI requirements can be constitutional if written correctly, Soucek wrote in a Chronicle of Higher Education article.

“As long as DEI statements are requested and evaluated by faculty—not imposed or judged by administrators—they are an exercise of academic freedom, not a violation of it,” he told The Fix. “By contrast, when legislators impose limits on what faculty can consider in evaluating academic merit, they are distorting faculty judgments and violating academic freedom.”

Soucek acknowledged there are “dangers” when such requirements involve pressure from administrators, students, or a small but vocal departmental group.

However, he said, “Academic freedom is built on peer evaluation, and that always comes with dangers. Faculty are judged by their peers in hiring and promotion, and since their peers are human, there is always the risk that people can bring unreasonable or inappropriate factors into the evaluation process.”

Daniel Ortner, an attorney with the Foundation for Individual Rights and Expression, told The Fix these kinds of requirements have increasingly gotten out of hand.

“What happened for a long time, at least in California … was these requirements started as, you know, a plus-factor or a factor you could weigh when evaluating candidates, but just one of many considerations,” Ortner said in a recent phone interview.

Now, he said DEI requirements have morphed into “the first thing anyone looks at” and job candidates started getting cut if their statements were deemed inadequate.

This has been the trend in the University of California system, and “other states have, over time, slowly adopted what California has done,” he said.

California professors challenge DEI policy in court

Ortner is the lead attorney representing six professors in a lawsuit challenging a California community colleges DEI policy. Their case alleges the state institutions require all professors to be “evaluated for how well they incorporate, advocate for, [and] advance DEI principles” both in and outside the classroom.

Additionally, Ortner told The Fix the system has incorporated an official glossary into its DEI policy that includes highly politicized definitions for concepts like “merit.”

Soucek at UC Davis told The Fix he believed FIRE’s case has some strengths.

He said this is “in part because it is challenging uniform, system-wide administrative guidance rather than faculty-driven evaluations, and in part because the drafting of the community college system is overly laden with a particular type of DEI jargon that makes the guidance seem more ideological than I think it needs to be.”

However, Soucek said assessing faculty’s ability to ensure a “diverse set of students are thriving” also is important.

“Much of the guidance gets to that unassailable goal,” he said. “But it is couched in unfortunate and sometimes confusing language that makes it seem as if the system wants ideological commitments in addition to effective teaching and mentorship of a diverse student body.”

Soucek was far more critical of another California lawsuit challenging a similar DEI requirement for faculty applicants at the University of California at Santa Cruz.

In the case, developmental psychologist J.D. Haltigan alleges his support of colorblind inclusivity, viewpoint diversity, and merit-based evaluations stands against the university’s progressive policies.

Soucek told The Fix, “Lawsuits like [Haltigan’s] have no legal merit, at least as long as DEI statements are being used the right way—as they are at the University of California …”

“Haltigan himself is a particularly absurd plaintiff, given his own description of his work. He should have had no problem writing the kind of diversity statement that UC requests of its applicants,” he said.

Wilson Freeman, Haltigan’s attorney with the Pacific Legal Foundation, disagreed, telling The Fix in a recent email:

“It absolutely does not matter whether JD could have written some hypothetical DEI statement because here, the university has made crystal clear that JD’s views on certain issues are simply not welcome at the university.”

Some faculty keep heads down, others leave: lawyer

Lawsuits like Haltigan’s are rare, Freeman told The Fix.

“Based on my conversations with individuals in the academic community … the perceived negative consequences from bringing a lawsuit against an employer are severe,” he said. “People think they will be retaliated against by the community for standing up for their rights and against the ideological monoculture in the university system.”

He said many academics find it easier to just keep their heads down.

“In addition, much of the censorship is informal, rather than through official channels,” Freeman said. “Universities and academic communities have many levers they can pull which can make a professor or prospective academic’s life difficult, before it amounts to the kind of situation that would generate the need for a lawsuit.”

“And universities aren’t stupid,” he said. “They will push the limit but may back down if a professor pushes back against an objectionable DEI requirement.”

Because of the “polarized ideological” environment, some academics – especially in the hard sciences – choose to leave higher education, Freeman told The Fix.

“Rather than fight through byzantine and contentious university politics, it may be easier to just go get a job in the private sector,” he said.

MORE: Ohio State University prioritized DEI over merit in hiring, documents show

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About the Author
College Fix contributor Daniel Nuccio holds master's degrees in both psychology and biology. He is currently pursuing his doctorate in biology at Northern Illinois University where he is studying the impact of social isolation on host-microbe interactions and learning new coding techniques to integrate into his research.