We posted some history of the loyalty oath controversy of the late 1940s and 1960s that embroiled UC (and other higher education institutions).[1] As blog readers will recall, the end result was litigation and court decisions that ultimately reduced the oath to a vacuous pledge to support the state and federal constitutions.
It might be noted that unlike the federal constitution, California's state constitution is relatively easy to amend through ballot propositions. The state constitution, for example, contains the language of Proposition 209 - the anti-affirmative action proposition of the mid-1990s. The Regents and top administrators made known their opposition to 209 in an unsuccessful campaign in 2022 to get voters to repeal it. Did they thereby violate their oaths? Is just complying with the law - even if you don't like it - what supporting the state constitution means? The fact is that no one knows, or cares, or even raised that issue. That absence of concern illustrates how empty the remains of the old loyalty oath became after the various legal challenges.
In any case, that history led yours truly to consider the required diversity, equity, and inclusion statements that came about at UC and other institutions in recent years. As readers will probably know, DEI efforts have become part of the ongoing national culture wars. Red states are banning such efforts. However, questions about their legality have been raised by traditional liberals. Matthew Finkin[2] at the University of Illinois wrote a lengthy treatise questioning the constitutionality of required statements, "Diversity! Mandating Adherence to a Secular Creed."[3] Part of his argument, as yours truly understands it, is that although they seem to require speech through various specific guidelines, the mandates are also vague as to what speech is sufficient to comply. Thus, the requirements are both specific and vague. It was this combination of specificity and vagueness that led to the various court decisions that ultimately watered down the old oath to meaningless. (Apologies to Prof. Finkin if yours truly has misunderstood his argument.)
We also have, less surprisingly, objections to DEI statements from libertarian-leaning scholars who don't fit neatly into today's progressive vs. conservative camps. I poked around in the files of the Volokh Conspiracy of UCLA Law Professor Eugene Volokh and found references to legal challenges to required DEI statements, one very recent lawsuit coming from faculty at the California Community Colleges.[4] Another article references a 1943 Supreme Court decision voiding a mandate that school children recite the Pledge of Allegiance.[5] Also noted are events surrounding the non-hiring by UCLA of a University of Toronto professor after students objected to him saying in a podcast that DEI statements were examples of "value signaling."[6] (There does not seem to be litigation surrounding that particular situation.)
Finally, there IS a non-hiring case pending case against UC and UC-Santa Cruz. This one is backed by the conservative Pacific Legal Foundation. According to the Mercury-News, "the lawsuit compares the university’s diversity, equity and inclusion statement requirement to anti-communist loyalty oaths during the Cold War, where state employees were asked to swear that they did not belong to the Communist Party." At least at the time the case was filed, the applicant had not actually applied for the position, stating that the DEI requirement prevented him from doing so. Whether he will be found to have standing as a non-applicant remains to be seen. But it is likely that eventually someone will be found by the Pacific Legal Foundation, or by some other group, to challenge UC. And the individuals challenging the community colleges presumably do have standing.
It might be noted that self-statements are generally found in faculty hiring and promotion cases and nothing prevents candidates from citing their contributions to, or approaches to, the general concerns of DEI. It might be better for UC to be proactive in this area, i.e., to avoid guidelines that create the specific-vague issues cited by Finkin, and to not wait for courts to step in. Lawyers have a saying that you shouldn't ask a question to which you don't know the answer. In this matter, the question is going to be raised whether we ask it or not. And we don't know what the courts' answer will be if we leave things "as is."
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[7] https://www.mercurynews.com/2023/05/22/scientist-sues-ucsc-over-diversity-statement-requirement/. The case is at https://pacificlegal.org/wp-content/uploads/2023/05/2023-05-18-JD-Haltigan-v-michael-drake-stamped-Complaint.pdf.
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UPDATE: The FIRE/community colleges case is at:
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