What’s New
Requirements that faculty members in California’s community colleges demonstrate proficiency in diversity, equity, and inclusion and teach antiracism principles may infringe on a professor’s free-speech rights, a federal magistrate judge recommended this week.
Though the “aim of promoting” DEI in the state’s two-year colleges is “undoubtedly important,” the order said, the complaint brought by Daymon Johnson, a history professor at Bakersfield College, suggests that the mandates are “contrary to the First Amendment’s guarantee of freedom of speech in the academic arena.” The order recommends granting a preliminary injunction that prevents the California Community Colleges system from enforcing the DEI rules against Johnson.
The Details
The policy in question states that professors must “employ teaching, learning, and professional practices that reflect” DEI efforts and antiracist principles, and be mindful of “the diverse backgrounds of students and colleagues.”
The California Community Colleges’ Board of Governors approved the rules in the spring of 2023; individual colleges were required to adjust their employee-evaluation policies to reflect the new requirements by this fall.
The lawsuit, filed in July against Kern Community College District officials, states Johnson objects to the DEI rules because they impose an “ideology” he does not agree with. The lawsuit claims the district’s requirements direct him to refer “to transgender students by their preferred pronouns,” and it alleges that mandatory DEI training promotes evaluating faculty members by their “membership in a particular race-based group” rather than by merit.
The lawsuit states that Johnson feels the need to censor himself by turning down media appearances, and that if he complied with the DEI policy, he would have to teach in a way that contradicted his values. Alan Gura, vice president for litigation at the Institute for Free Speech, an advocacy group, and Johnson’s lead counsel, said that Johnson is “very pleased” with the recommendation and that he thinks “California’s DEI mandate is unconstitutional.”
The Kern Community College District, which includes Bakersfield, argued that the policy is a reflection of the institution’s values, not a restriction of Johnson’s speech.
“These state-mandated DEI regulations do not force our faculty to abide by ideological concepts, but rather ask our faculty to promote and encourage an inclusive environment in their classrooms,” a spokesperson for the district said in a statement to The Chronicle.
Officials with the California Community Colleges chancellor’s office said in a statement to The Chronicle that they “strongly disagree” with the magistrate judge’s conclusion, and affirmed that the DEI policy “is consistent with” the system’s responsibility to provide students with “an environment free of discrimination.”
“The policy does not compel speech nor impinge on academic freedom and carries no disciplinary components,” the statement said.
But the magistrate judge — Christopher D. Baker of the U.S. District Court for the Eastern District of California — found that the language in the policy is “mandatory” in nature because it “requires faculty to demonstrate (or progress toward) proficiency” in DEI and antiracism for their evaluations and tenure review.
The Backdrop
Johnson’s case reflects a heated debate in higher ed over free-speech and equity initiatives, which has spurred anti-DEI legislation in at least 22 states.
The University of California system is also facing a legal challenge to its use of diversity statements in hiring.
Shortly after the community colleges’ board signed off on the DEI policy for employee evaluations, another Bakersfield professor, Matthew Garrett, was fired for several reasons, including what the Kern Community College District described as “immoral” and “unprofessional” conduct.
Both Garrett and Johnson are affiliated with the Renegade Institute for Liberty, a group of conservative faculty members at Bakersfield that runs a controversial Facebook page discussing “wokeism” and campus policies that its members object to. Johnson was subject to an investigation over social-media posts he made, Gura told The Chronicle.
The California Community Colleges are home to nearly two million students, and a policy ensuring that staff members are able to work with and understand diverse populations is “needed,” said Brian Soucek, a professor of law at the University of California at Davis. Such efforts become “problematic,” Soucek said, only when a college uses a “top-down” approach to tell professors what and how they should teach.
The Stakes
The language in this week’s recommended injunction suggests it would apply only to Johnson, not to the state’s community-college system as a whole, Gura said. Each party has two weeks to give arguments, and the final decision rests with a federal district judge.
Colleges should read the recommendation “very carefully,” Gura said, and understand “that they cannot impose their ideology on other people.”
This policy is “fairly unique” in how explicitly it regulates faculty conduct, said Stacy Hawkins, a professor of law at Rutgers University. Colleges should not interpret this case as a reason to throw out policies that encourage diversity and inclusion, she said, emphasizing that they are “important” to the academic mission and fostering “a sense of belonging in students.”
Daniel Ortner, a lawyer with the Foundation for Individual Rights and Expression, a free-speech advocacy group, is leading a separate lawsuit with six professors from the California Community Colleges system. He told The Chronicle that the DEI policy is “part of an increasing trend” of “efforts to control what is said in the classroom.” But DEI and free speech “aren’t at odds with each other,” he said. They’re “compatible” for “vigorous, open, robust debate.”
