Judge bans college from punishing professor for criticizing DEI, 'cultural Marxism'

Seven months after a federal appeals court reinstated a tenured history professor's First Amendment lawsuit to stop his college from punishing him for criticizing "cultural Marxism" and refusing to promote its progressive dogma, Daymon Johnson got good and bad news.

California's Bakersfield College and its Kern Community College District cannot fire Johnson, as it tried for his colleague Matthew Garrett for similar speech, but they can force Johnson to complete diversity, equity, inclusion and accessibility training "as a requirement to participate on faculty screening committees," U.S. District Judge Kirk Sherriff ruled Friday.

It's the latest legal seesaw for Johnson, who initially secured a preliminary injunction on KCCD's enforcement of the state's DEIA regulations from a magistrate judge, whom Sherriff unexpectedly overruled. The 9th U.S. Circuit Court of Appeals then overruled Sherriff's finding that Johnson had no legal standing to sue.

The President Biden nominee granted Johnson's motion for preliminary injunction on his "as-applied viewpoint discrimination and compelled speech challenges," prohibiting the defendants from "investigating, disciplining, or terminating Johnson by enforcing" California code regulations "based on Johnson’s proposed social or political speech."

The one exception is for "Johnson’s official speech as a member" of the Equal Opportunity and Diversity Advisory Committee (EODAC), the setting for a years-long tug-of-war between faculty associated with Bakersfield College's progressive Social Justice Institute and its right-leaning Renegade Institute for Liberty, which played a role in Garrett's attempted firing.

Johnson endured a five-month investigation after he took over as RIFL faculty lead from Garrett, whom KCCD voted to fire in a secret board vote after it failed to take action against Garrett on its official charges, including the "dishonesty" of disagreeing with colleagues. 

Garrett later secured a $2.4 million settlement with KCCD to end his litigation, followed by the 9th Circuit reinstating Johnson's lawsuit last year after KCCD repeatedly refused opportunities in oral argument to disavow investigating him again under its implementation of California Community Colleges' (CCC) DEIA "competencies and criteria."

Johnson's lawyers at the Institute for Free Speech exulted in his victory at this stage of litigation, protecting him from discipline for "his social media posts, media appearances, published articles, and participation in protests" as the lawsuit continues.

"California’s DEIA regulations require faculty to 'employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles' and establish 'proficiency in DEIA-related performance to teach, work, or lead within California community colleges,'" which Sherriff said likely compel Johnson to "endorse the state’s preferred viewpoint," IFS said.

It cited Sherriff's finding that BC and KCCD have not shown "a legitimate administrative interest in suppressing the speech that outweigh[s]" Johnson's First Amendment rights, quoting the 9th Circuit's recent precedent for a University of Washington professor who was punished for mocking land acknowledgments on a syllabus.

"In America, no one can be required to believe or endorse the state’s official political ideology, and everyone is free to criticize it," all the more so on a college campus, IFS Vice President for Litigation Alan Gura said.

KCCD, which also answers queries for BC, did not respond to Just the News requests for their next steps in the litigation.

While the systematic attempted culling of KCCD's conservative faculty — an analogy made by a board member in agribusiness — predates the COVID-19 pandemic, educators face ongoing threats and punishments for more recent cultural flashpoints.

New York's Baldwinsville Central School District inexplicably put Jennifer Fasulo on paid leave soon after the Spanish teacher agreed to advise students setting up a high school affiliate of the late conservative activist Charlie Kirk's Turning Point USA. A student's mother claims Fasulo interrogated the girl about her bisexuality in a Christian club Fasulo advised.

A split 4th Circuit panel rejected teacher Kimberly Polk's motion for preliminary injunction against Maryland's Montgomery County Public Schools for requiring teachers to call students by their preferred pronouns and hide their gender identity from parents, finding the policy did not show hostility to her religious views and she was simply MCPS's mouthpiece.

That ruling may tee up another rebuke of the increasingly liberal Richmond, Va.-based appeals court by the Supreme Court, which last term reviewed more 4th Circuit rulings than all but one appeals court and overturned all of them, notably the 4th Circuit's blessing of MCPS's secret LGBTQ lessons for young children without parental notification or opt-out. 

Ignoring 'plain text of the regulations,' which compel speech

"Johnson has credibly identified specific speech that he reasonably fears would be proscribed by the DEIA regulations" and the 9th Circuit agreed he has a "concrete plan to violate the law" by expressing that speech, Judge Sherriff wrote in Friday's order, rejecting the defendants' motion to dismiss and partially granting Johnson's injunction motion.

His speech "concerns a matter of public concern" in his opposition to the state's regulations, which chill his teaching and scholarship, his work with the "dissident" RIFL and his "capacity as a private citizen or public academic engaging in extracurricular speech," the order says.

Though Sherriff says Johnson hasn't faced sanction under the DEIA regulations or underlying statute, with no mention of the five-month investigation, the professor is up for evaluation again this year and has widely censored himself to avoid a bad evaluation, including by not booking speakers for RIFL events and dropping out of EODAC meetings.

Sherriff said the defendants "[s]omewhat inconsistently" claim the DEIA regulations only affect non-speech "teaching and learning practices" while also asserting its legitimate administrative interests outweigh Johnson's in his own speech.

The judge agreed the defendants can't get out of the case by claiming they aren't responsible for the DEIA regulations, calling them the "moving force" behind implementation. He said they incorrectly relied on legal precedents for "municipal entities" and that the "promulgating entity" – the Board of Governors – does not need to be named as a defendant.

"There is no basis to believe the Board of Governors would take enforcement action against defendants," who are tasked with evaluating Johnson's DEIA proficiency, based on the latter's interpretation of the regulations, Sherriff said. 

He emphasized CCC Chancellor Sonya Christian – former BC president and cofounder of its Social Justice Institute – already got herself dismissed as a defendant for lack of authority to enforce the regulations, so it's wrong that "only a statewide authority could adequately defend the DEIA regulations and the statute."

Not only are BC and KCCD trying to relitigate the 9th Circuit's findings, but they are also ignoring "the plain text of the regulations," which apply to speech as well as conduct, the judge said. It is "hard to envision" how the mandate to "reflect DEIA and anti-racist principles" in "teaching [and] learning" would exclude his "lectures and classroom discussions."

While the defendants are correct that "the government may express its views" through DEIA training required to serve on a committee, and that Johnson hasn't yet shown "he is required to personally endorse the views expressed in the training," Sherriff rejected their argument that Johnson's leadership in RIFL constitutes government speech.

EODAC, by contrast, is "an official Bakersfield College committee," so Johnson can criticize its work in his personal capacity or through RIFL but not from within it, the judge said.

A lengthy footnote grapples with whether serving on a faculty screening committee, for which DEIA training is a prerequisite, "would constitute government speech on an administrative matter in an official capacity" for BC "as opposed to teaching or scholarship in his capacity as a professor." The judge said the record isn't developed enough to answer that question.