Ninth Circuit gives anti-DEI California professor partial win in free speech case

BAKERSFIELD, Calif. (CN) — A California professor who argued that speaking against diversity policies could lead to retaliation had an appeals panel hand him a partial win on Monday.

Bakersfield College professor Daymon Johnson appealed to the Ninth Circuit Court of Appeals after a lower court judge in September found he had no standing to bring suit against the college, its administrators and trustees. The lower court also denied a motion for preliminary injunction, a legal move to stop the defendants from enforcing the law.

While the lower court ruled Johnson had no act planned that was linked to his free speech rights, the Ninth Circuit panel disagreed. It found that Johnson’s conduct was arguably forbidden by certain provisions of California law, giving him standing to sue some community college officials.

“Johnson has also adequately alleged a ‘credible threat’ of enforcement under these provisions,” the three-judge panel wrote. “Johnson has established a ‘concrete plan to violate the law’ based on his allegations regarding his desired speech and his refusal to express support for diversity, equity, inclusion, and accessibility (DEIA) principles.”

The panel noted that the defendants have not said they won’t enforce the provisions. The judges also discarded an argument that the college had no history of enforcement, writing that had little weight because the regulations became effective only months before Johnson’s suit.

That meant the lower court got it wrong on that specific set of laws.

Those provisions state that employee evaluations must include a person’s progress toward or proficiency with DEIA. They also must use teaching and professional practices that contain DEIA and anti-racist principles.

However, the appeals panel ruled that Johnson has no standing to sue under a handful of other laws, including Kern Community College District Board policy and the chancellor of the California Community Colleges’ DEIA competencies and criteria.

He also has no standing to sue Sonya Christian, chancellor of California Community Colleges system, as she has no power to enforce the challenged law.

According to the panel, that set of laws and provisions prohibit threats, harassment and intimidation — acts that don’t apply to Johnson’s speech.

The panel noted the community college district disciplined and fired another professor under those provisions. Johnson insisted he planned on making the same political statements that led to that person’s termination.

However, the panel wrote that particular speech, by itself, potentially couldn’t be the only reason for discipline.

The lower court in its decision wrote that the other professor faced termination for threats, intimidation and Covid-19 policy violations, which Johnson didn’t intend to commit.

The panel called a DEIA statement challenged by Johnson “an unenforceable, aspirational policy” that applies to the California Community Colleges system, not its employees. Also, Johnson didn’t show that his district enacted similar, local policies.

As for the DEIA competencies and criteria, the panel wrote they were unenforceable recommendations to local districts.

Turning to the preliminary injunction sought by Johnson, the panel made no decision. Instead, it remanded it to the lower court for consideration.

Johnson served as faculty lead for the Renegade Institute for Liberty, a campus group Johnson described as espousing opinions contrary to his administration’s mandate to “embrace diversity.” He filed suit in 2023.

Johnson claimed that college administrators villainized the campus group, fired another professor for “wrongthink” and investigated Johnson after another professor filed a harassment complaint. Cleared after that probe, Johnson said he no longer would discuss political issues.

Johnson has said his teachings would violate the college’s new DEI requirements. As part of his claims, Johnson had said he couldn’t recommend books with the phrase “cultural Marxism” in the title.

Johnson also pointed to a December 2022 email from the college’s president, who said “members of (Bakersfield College)’s communities of color, and LGBTQ community, have shared that many do not feel peace on our own campus … while there may be a small group promoting exclusion, that is not a value of this institution.”

That was seen by Johnson as an attack against his group.

“We’re pleased that the court of appeals recognized that California’s DEIA regulations threaten Professor Johnson’s First Amendment rights by compelling him to express ideological viewpoints he finds objectionable,” said Alan Gura, vice president for litigation with the Institute for Free Speech. “The Constitution forbids the government from conditioning employment on compliance with an official ideology. We look forward to vindicating Professor Johnson’s rights and preserving freedom of thought in California’s education system.”

Attorneys for the defendants couldn’t be reached for comment.

The appeals panel was comprised of U.S. Circuit judges Consuelo María “Connie” Callahan, a George W. Bush appointee; Bridget Shelton Bade, appointed by Donald Trump; and Lucy Koh, a Joe Biden appointee.