From today's decision by Judge Edward Davila (N.D. Cal.) in Haltigan v. Drake:
Plaintiff John D. Haltigan brings this action against Defendants university officers to challenge the diversity, equity, and inclusion ("DEI") statements required from prospective faculty candidates by the University of California, Santa Cruz. Plaintiff contends that the University's DEI statement requirement and guidance violate First Amendment principles of academic freedom….
Plaintiff alleges that he "desires a position at the University" but that the DEI statement requirement makes his application futile, due to his views on "colorblind inclusivity," "viewpoint diversity," and "merit-based evaluation." Plaintiff further alleges that, if he were to apply for the July 2022 opening or any other openings at UC Santa Cruz, he would be "compelled to alter his behavior and either remain silent … or recant his views to conform to the dictates of the University administration." Plaintiff does not allege that he applied or prepared any application materials for the July 2022 opening….
As a general premise, there is a "long-established rule" that a plaintiff "lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit.'" Because the Complaint indisputably does not allege that Plaintiff "submitted himself by actually applying for the desired benefit," Plaintiff attempts to overcome this standing obstacle in three parts: (1) he invokes the "competitor standing" doctrine, which confers standing on a plaintiff that is "able and ready" to apply or compete; (2) he argues that First Amendment rights can be vindicated without engaging in or risking a challenged course of conduct; and (3) any application submitted would have been futile….
[T]he Court finds that Plaintiff has not alleged that he is "able and ready" to apply and, therefore, may not invoke "competitor standing" to satisfy subject matter jurisdiction. [For factual details, see the opinion. -EV] …
In addition to "competitor standing," Plaintiff also cites a line of First Amendment cases for the proposition that he does not need to "subject himself to unconstitutional compelled speech" to challenge the DEI statement requirements under the First Amendment…. [But t]he cases cited by Plaintiff—Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022 (9th Cir. 2006); Arizona Right to Life Pol. Action Comm. v. Bayless, 320 F.3d 1002 (9th Cir. 2003); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750 (1988)—all involve First Amendment challenges to a municipality's permitting or licensing scheme, not a competitive application or bidding process. These opinions also expressly acknowledge that it was the discretionary permitting framework that implicated the First Amendment concerns and gave rise to the special standing analysis. None of the special First Amendment considerations in Santa Monica, Arizona Right to Life, City of Lakewood are present here, and the Court is unpersuaded by Plaintiff's attempt to equate First Amendment concerns implicated by a public speech licensing regime with those in a job application….
To the extent that Plaintiff is seeking to argue futility as a means of overcoming the obstacle that he had never submitted himself to the process he now challenges, the facts alleged in the Complaint does not support a finding that the University's policies "unambiguously rendered [his] application futile." The subjective selection process alleged in the Complaint is analogous to the one at issue in Friery v. Los Angeles Unified Sch. Dist., 448 F.3d 1146. The teacher plaintiff in Friery challenged a school district's faculty transfer policy that prohibited transfers that would "move the destination school's ratio of white faculty to nonwhite faculty too far from LAUSD's overall ratio." The Ninth Circuit found that plaintiff did not have standing because he did not actually submit a transfer application and, therefore, it was "uncertain whether the Transfer Policy would have affected [the plaintiff]." Id. at 1149 ("It may well be that had [plaintiff] applied for a position at the [transferee school], the school might have accepted his application on the basis of dire need, excellent qualifications, or any other reason."). Likewise, here, it may well have been the case that, had Plaintiff applied for the July 2022 open faculty position, UC Santa Cruz might have accepted his application of the basis of his standalone excellent qualifications or especially relevant research background….
In summary, because Plaintiff does not allege that he subjected himself to the process that he now seeks to challenge in federal court, he is subject to the general "long-established rule 'that a plaintiff lacks standing to challenge a rule or policy to which he has not submitted himself by actually applying for the desired benefit.' Plaintiff cannot invoke "competitor standing" because the Complaint does not allege that he is "able and ready" to apply; his First Amendment prudential arguments have limited, if any, application to the Article III standing inquiry; and the Complaint allegations do not support a finding of futility. Therefore, Plaintiff has failed to demonstrate standing to bring his First Amendment claims.
Bryan Heckenlively (Munger, Tolles & Olson LLP) represents defendants.
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