Magistrate judge sides with professor in First Amendment suit over Bakersfield College diversity policies

BAKERSFIELD, Calif. (CN) — A U.S. magistrate judge on Tuesday recommended that Bakersfield College be prohibited from investigating, disciplining or firing a professor who sued the school over its diversity and inclusion policies.

U.S. Magistrate Judge Christopher D. Baker also recommended that the Eastern District of California deny a motion to dismiss professor Daymon Johnson's lawsuit.

The Tuesday decision stems from a lawsuit filed in June by Johnson, who teaches history at the college where he’s worked since 1993. He’s also involved in campus self-governance.

Johnson, the faculty lead for the Renegade Institute for Liberty, said in his suit that college administrators villainized the group for its views, including firing a professor over "wrongthink" and launching an investigation into Johnson. As a result, Johnson says he no longer discusses political issues, fearing another investigation — even though he was cleared after the probe — or termination.

“The First Amendment, however, guarantees Professor Johnson’s right to express himself, and it forbids the state from mandating that he subscribe to or promote any official ideology,” Johnson wrote.

In his suit Johnson focuses on the May release of the “Diversity, Equity and Inclusion Competencies and Criteria Recommendations” by the California Community Colleges Chancellor’s Office. Bakersfield College faculty were told all college employees must show they can work, teach and lead in a diverse environment, and they’re committed to improving their own DEI and anti-racism knowledge, skills and behaviors.

Johnson has said he rejects diversity, equity, inclusion and accessibility as an official political ideology and fears his future performance will be judged based on the new criteria.

“(A)lmost everything I teach violates the new DEIA requirements — not just by failing to advance the DEIA and anti-racist/racist ideology, but also by criticizing it,” Johnson said in the magistrate judge’s recommendation.

In the coming semester, Johnson said he intends to expose his classes to two books that assault the DEI narrative by debunking anti-Christopher Columbus narratives and the concept that all Native Americans shared values of peace, harmony and respect for nature.

In his recommendation, Baker said he wasn’t persuaded by arguments that the past investigation into Johnson shouldn’t be considered, as he faced no discipline. Instead, Johnson had to get an attorney for the investigation, and his fear of future investigations is reasonable.

“As such, it is not ‘imaginary or speculative’ … to infer plaintiff will be evaluated under the District’s DEI competencies and criteria for his employee evaluation, tenure review, and employment retention processes,” Baker wrote. “In light of this … it is likely that at some point plaintiff will face consequences if he does not adhere to whatever competencies and criteria are imposed on him through the DEIA regulations.”

Those regulations require evaluations of Johnson based on his commitment to “the state’s ideology” and incorporating that ideology into his teaching; without an injunction, Johnson will face irreparable injury from a violation of his First Amendment rights, Baker wrote.

Sonya Christian, chancellor of California Community Colleges, Bakersfield College administrators and members of the Kern Community College District had sought to have Johnson’s legal action dismissed.

The magistrate judge recommended that a federal district judge issue a preliminary injunction against Johnson being investigated, disciplined or fired based on the content of his social or political speech in his personal capacity and in academic writings. However, that injunction wouldn’t apply to Johnson’s service on a screen committee or the college’s Equal Opportunity & Diversity Advisory Committee.

Both sides have two weeks after being served to file objections to the recommendations.

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