The Courts and the Culture War

Posted: March 13, 2024 / Written by: Elizabeth Wolstein /

Prospective Applicant For Faculty Position Lacked Standing To Challenge DEI Statement Requirement Because He Had Not Applied For Position; Second Circuit Rejects Association’s Standing To Challenge Pfizer Minorities-Only Fellowship

Standing doctrine takes center stage in today’s post.

First up is a challenge to faculty DEI statements. A California district court has held that a prospective applicant for a faculty position lacked standing to challenge the university’s DEI statement requirement because he had not applied for the position.  Thus, the court did not reach the merits of the plaintiff’s First Amendment claims for unconstitutional conditions and viewpoint discrimination.  The case is Haltigan v. Drake, No. 23-cv-02437-EJD, 2024 WL 150729 (N.D. Cal. Jan. 12, 2024) (opinion here).

The University’s DEI Statement Requirement

Plaintiff John Haltigan holds a Ph.D. in psychology and was seeking a faculty position in psychology departments across the country.  The University of California, Santa Cruz required submission of a DEI statement for every faculty job opening.  The Psychology Department posted a job opening for which Haltigan was interested in applying.  The posting explained that the Department would perform an “initial screening” of applicants based only on their DEI statement and research statement.  According to the complaint, the University’s rubric for evaluating DEI statements assigned high scores for “DEI statements that express certain sociopolitical ideas and low scores for those that express otherwise.”  Id. at *1.  Haltigan alleged that he wanted to apply for the Psychology Department position, but the DEI statement requirement made his application futile given his views on “colorblind inclusivity, viewpoint diversity, and merit-based evaluation.”  Id. at *2.  If he were going to apply, Haltigan would have had to “alter his behavior and either remain silent … or recant his views to conform to the dictates of the University administration.”  Id. at *2.  Thus, he did not apply for the position.

Court Rejects All Of Plaintiff’s Standing Theories

The University moved to dismiss for failure to state a claim and lack of standing under Rule 12(b)(1), arguing that Haltigan’s injury was not “actual and imminent,” or “concrete and particularized,” because he never submitted to the application process he was challenging.  Id. at *3.  In response, Haltigan argued that he had standing because he was “‘able and ready’ to apply or compete,” id., a doctrine the court referred to as “competitor standing.”  Id. at *3.  He also argued that First Amendment rights “can be vindicated without engaging in or risking a challenged course of conduct,” and that any application for the position would have been futile.  Id. at *3.

The court rejected each argument.  On competitor standing, the court invoked Carney v. Adams, 592 U.S. 53 (2020), which held that the plaintiff lacked standing to challenge provisions of the Delaware Constitution that he claimed made him ineligible to apply for a state judgeship, since he had expressed only a “general interest in an open judgeship,” without any real preparations for applying for the position.  Id. at *4. While the Supreme Court “did not completely foreclose the possibility that a statement of intent could suffice for standing,” there had to be at least some indication that the plaintiff “had applied in the past” and that there were in fact relevant positions to apply for.  Id. at *4.  In Haltigan’s case, there was a prior open position for which he had not applied.  The court found this fact significant even though Haltigan presumably would say that, as with the current position, his application for that job would also have been futile in light of the DEI statement requirement.

Finally, the court reasoned that the complaint did not allege that Haltigan had undertaken any preparation in anticipation of applying for the position, such as preparing a “research statement” or making “any other preparations or investigations into the open position.”  Id. at *5.  Without any such preparatory steps, the court could “not find Plaintiff to be more ‘able and ready’ than the plaintiff in Carney.”  Id. at *4.  While it was a “relevant consideration” in evaluating Haltigan’s “ability and readiness to apply” that Haltigan was “in the national market” for an academic position, the court found that being in the market “is not sufficiently imminent or concrete to establish an injury-in-fact arising from UC Santa Cruz’s specific application process.”  Id. at *5.  Thus, the court concluded that Haltigan had not alleged that he was “able and ready” to apply and, consequently, could not invoke competitor standing to establish subject matter jurisdiction.  Id.

Court Says First Amendment Prudential Standing Requirements Are Inapplicable

The court also rejected Haltigan’s argument that he need not “subject himself to unconstitutional compelled speech to challenge the DEI statement requirement,” an argument the court believed went to prudential rather than Article III standing.  Id. at *5.  A prudential standing inquiry asks whether, even if the plaintiff establishes Article III standing, he “may still lack standing under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated and to limit access to the federal courts to those litigants best suited to assert a particular claim.”  Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99-100 (1979).  In the First Amendment context, the Supreme Court has justified a “lessening of the prudential limitations on standing.”  Haltigan, 2024 WL150729, at *5 (quoting Sec’y State of Md. v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984)).  The district court believed that First Amendment prudential standing doctrine did not apply in this factual context and could not be raised as a defense to a Rule 12(b)(1), as opposed to 12(b)(6), motion, see 2024 WL 150729, at *5.  Since the court had already ruled that Article III standing was absent, however, the prudential standing analysis seems superfluous.

Finally, the court concluded that Haltigan had not sufficiently alleged futility to “overcom[e] the obstacle that he had never submitted himself to the process he now challenges.”  Id. at *6.  Because the faculty selection process was so subjective, it could not be said that the DEI statement requirement “unambiguously” rendered Haltigan’s application futile, since the University “might have accepted his application on the basis of his standalone excellent qualifications or especially relevant research background.”  Id. at *6.  This speculation, however, seems at odds with the complaint’s allegations that (i) a DEI statement was required, and (ii) the University’s process involved an “initial screening” of candidates based “only on the DEI statement and a research statement.”  Id. at *2.

The court thus dismissed the complaint for lack of subject matter jurisdiction, with leave to amend, in case Haltigan could correct “the pleading deficiencies with respect to competitor standing and futility.”  Id. at *7.  Haltigan filed an amended complaint in February, and the University again moved to dismiss on March 1, 2024.  Haltigan’s amended complaint attached a DEI statement, which argued against the use of DEI statements in faculty hiring.

Plaintiffs in future cases can avoid Haltigan’s standing problem by taking all available steps in preparation for applying for the position at issue despite the DEI statement requirement, or better yet, actually applying for the position.


Second Circuit Rejects Association’s Standing To Challenge Allegedly Discriminatory Pfizer Fellowship Because Members Claiming Injury Were Not Identified By Name

The question of able-and-ready standing came up in the corporate context last week in the Second Circuit’s March 6, 2024 decision in Do No Harm v. Pfizer, No. 23-15-cv (opinion here).  The Circuit rejected the plaintiff association’s standing to challenge a Pfizer minorities-only fellowship program, where two members of the association alleged they were able and ready to apply for the program but did not apply because they were white and Asian.  The court acknowledged that to establish standing to challenge an allegedly discriminatory program “a plaintiff need not go through the motions of formally applying when that would be a futile gesture,” but must demonstrate that “they are able and ready to apply” but for a “discriminatory policy [that] prevents them from doing so on an equal footing.”  Do No Harm, March 6, 2024 Slip Op. at 13. 

The Second Circuit did not decide whether Do No Harm’s two members were sufficiently able and ready, but the issue did figure in the court’s standing analysis. The Circuit affirmed the district court’s denial of Do No Harm’s preliminary injunction motion, and its dismissal of the complaint, because the association did not identify by name any member injured by the discriminatory fellowship, but kept anonymous the two members it claimed were so injured.  See Slip Op. at 18-21.  In explaining the need for an association to identify a member by name to establish associational standing, the court explained that the applicant’s willingness to disclose his or her name, “at least to the court,” “is an essential component of the ready-and-able showing.”  Id. at 22. 

In his concurring opinion, Judge Wesley concluded that able-and-ready, not the failure to use the members’ real names, was the real issue: in his view, neither of the two anonymous members “provided sufficient evidence to show they were ‘ready’ to apply to the Fellowship,” and this absence “suffice[d] to end this case.” Concurring Opinion of Wesley, J. at 1-2.  Judge Wesley saw no constitutional basis for requiring disclosure of members’ actual names for an association to establish standing.  See id. at 2.  He noted that “the Supreme Court itself regularly allows organizations to sue on behalf of unnamed members,” (citing Students for Fair Admissions) and that the Ninth Circuit had concluded, contrary to the majority, that there was “no purpose to be served by requiring an organization to identify by name the member or members injured.”  Id. at 5-6, 7.