‘Diversity, Equity, Inclusion’ requirements for teaching and publications violate First Amendment

A magistrate judge has recommended that a federal judge issue a preliminary injunction against California’s “diversity, equity, inclusion” requirements for community college instructors’ teaching and publications. He concluded that those requirements violate free speech and academic freedom by dictating that professors espouse a particular ideology.

Why is this conclusion merely a recommendation? Because magistrate judges generally only have the power to issue recommendations. They can’t issue the most important court rulings (like about who wins a lawsuit or who gets an injunction). They can only issue less important rulings (like whether you have to respond to a subpoena or show up for a deposition). But the most important rulings, like who wins a lawsuit, have to be issued by a regular judge (one appointed by the President and confirmed by the Senate), not a magistrate judge (who is appointed by other judges). The magistrate judge can only issue a recommendation to a regular judge about who should win a lawsuit — not declare who won (an exception to this limit on magistrate judges’ powers is where the plaintiff and defendant both consent to the magistrate judge issuing all rulings in their case).

Here is the most relevant part of today’s Report and Recommendations by Magistrate Judge Christopher D. Baker, in his opinion in Johnson v. Watkin.  Daymon Johnson, the plaintiff, is a history professor at Bakersfield College, a California community college.

Cal. Code of Regs. § 53602(a) [“Advancing Diversity, Equity, Inclusion, and Accessibility in Evaluation and Tenure Review Processes”] requires faculty demonstrate (or progress toward) proficiency in the locally-developed DEIA [diversity, equity, inclusion, and accessibility] competencies, or those published by the Chancellor for their evaluation, including tenure review. For instance, § 53602(b) provides that “District employees must have or establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges.” Similarly, § 53605(a) provides that “Faculty members shall employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles, and in particular, respect for, and acknowledgement of the diverse backgrounds of students and colleagues to improve equitable student outcomes and course completion.”

Likewise, § 53605(c) provides that “[s]taff members shall promote and incorporate culturally affirming DEIA and anti-racist principles to nurture and create a respectful, inclusive, and equitable learning and work environment.” [Defendant California Community College Chancellor Sonia Christian’s] characterization of these regulations as merely “articulat[ing] the aspirational goal” of promoting DEIA is disingenuous—by their plain language, the regulations require faculty members like Plaintiff to express a particular message.

The Supreme Court “[has] held time and time again that freedom of speech ‘includes both the right to speak freely and the right to refrain from speaking at all.’” Moreover, compelling individuals to mouth support for views they find objectionable, like the government’s preferred message, violates the “cardinal constitutional command” that “‘no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.’”

The principles behind DEIA regulations may be laudable to some, to many, and maybe to most. But as the District Defendants tacitly acknowledge, they involve “politically charged” and “potentially polarizing” issues. For Plaintiff, his “conscience does not allow him to believe in and practice the state’s ’embracing diversity’ ideology.” Christian’s argument during the motion hearing that the challenged regulations do not compel Plaintiff to teach DEIA concepts in the classroom, but rather, merely to demonstrate proficiency in DEIA competencies, is untenable. The regulations clearly require faculty to “employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles.” It is unclear how Plaintiff could demonstrate proficiency in DEIA principles, for purposes of tenure review, if he is not required to advocate and promote these concepts in his classroom. In short, Defendants are unable to reconcile how Plaintiff could be fairly evaluated in his “proficiency in DEIA principles” were he to criticize and oppose DEIA concepts within the classroom.

Christian separately argues the regulations are constitutionally permissible non-discrimination policies that “do[] not target speech or discriminate on the basis of its content, but instead serve to remove access barriers imposed against groups that have historically been excluded.’” … [But] that one or even the principal intention behind a regulation is to “remove access barriers” for historically marginalized populations is not dispositive. In other words, Defendants’ “intent” behind the DEIA regulations “is irrelevant in the Free Speech analysis.”

Christian argues “even if [Plaintiff] could state a constitutional claim challenging the [DEIA] regulations—which he cannot—his motion should still be denied, as the crucial public interest served by the challenged regulations … outweighs the nominal infringement of speech [Plaintiff] alleges he may experience as a result of the regulations.” She further contends California has a strong interest in ensuring nearly two million community college students have equal educational opportunities and “ensuring that concepts of diversity, equity, inclusion, and accessibility are promoted in all community colleges.” … [But] California’s goal of promoting diversity, equity, inclusion, and accessibility in public universities does not give it the authority to invalidate protected expressions of speech….

The Supreme Court, in Garcetti v. Ceballos (2006), had ruled that free speech generally doesn’t “protect a government employee from discipline based on speech made pursuant to the employee’s official duties,” but it left room for a possible exception for scholarship and teaching in higher education: “There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Several federal appeals courts, including the California-based Ninth Circuit Court of Appeals, have ruled that scholarship and teaching in colleges and universities is indeed constitutionally protected, if it (1) consists of speech on matters of public concern, and (2) passes a balancing test laid down in Pickering v. Board of Education (1968)—that is, if the employee’s free-speech rights are not outweighed by “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Accordingly, the magistrate judge’s Report and Recommendations applied that balancing test:

Plaintiff asserts Defendants have chilled his ability to teach in the classroom, express his objections to “DEI ideology,” manage and post on [a faculty organization’s] Facebook page, write editorials, appear in media, hold events, [and] invite guest speakers …. Plaintiff claims much of his “speech at issue here—posting on Facebook, writing editorials, inviting and sponsoring speakers, and appearing in media—is speech [he] would make in his personal capacity.” Plaintiff asserts any other speech he made was pursuant to his official duties as a professor and constitutes teaching and scholarship.

The Undersigned agrees with Plaintiff that his proposed posts on social media, media appearances, editorials, and events are speech he would make in his personal capacity…. [And] Plaintiff’s decision on what to teach in the classroom and criticism of “DEI ideology” would qualify as teaching and academic writing.

Neither Plaintiff nor Defendants dispute that Plaintiff’s proposed speech regarding DEIA pertains to matters of public concern…. Plaintiff’s proposed speech regarding “Cultural Marxism” and his protest of the participation of males in female sports and drag queen story hours are subjects of general interest, value, and concern to the public. Likewise, Plaintiff’s intent to speak on matters concerning Bakersfield College academics, operations, and policies qualify as matters of public concern….

For the reasons set forth above, the Undersigned concludes Plaintiff is likely to prevail in satisfying the second step of the Pickering test and that the State’s interest in imposing the DEIA regulations and the DEI Competencies and Criteria Recommendations do not outweigh Plaintiff’s First Amendment rights.

Professor Johnson is represented by Alan Gura, Endel Kolde, and Courtney Corbello of the Institute for Free Speech.

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