The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Religion and the Law

Salvation Army Has First Amendment Right to Ban Methodone Use by People in Its Adult Rehabilitation Centers

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From Tassinari v. Salvation Army, decided Monday by Judge Leo Sorokin (D. Mass.); I'd love to hear what list members think of it:

[Plaintiffs] assert that TSA [The Salvation Army] maintains a policy at its Adult Rehabilitation Centers that prevents such individuals from accessing medication for their disorder [including methadone and buprenorphine for Opiod-Use Disorder [OUD]], in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, and the Fair Housing Act, 42 U.S.C. § 3604…. [The Salvation Army] operates twenty-nine Adult Rehabilitation Centers ("ARCs") in that territory. TSA refers to ARC participants as "beneficiaries." ARCs provide beneficiaries with housing and basic living necessities for six to twelve months, during which time beneficiaries live on site and participate in "work therapy" by working full time at the ARCs or processing donated goods for resale at Salvation Army thrift stores….

TSA views ARCs as "residential churches," and it considers the operation of ARCs to be one of the ways it practices its religion. TSA considers "the highest priority of the ARCs" to be "bring[ing] the beneficiaries into a personal relationship with God." ARCs "serve[ ] men and women with social, emotional and spiritual needs who have lost the ability to cope with their problems and provide for themselves."

Beneficiaries need not be Salvationists—the vast majority are not—and they may continue to practice their own religion if they do so on their own time. But all beneficiaries are required to acknowledge that The Salvation Army is a church and must agree to participate in Salvationist religious activities as a condition of their ARC participation. Beneficiaries meet at least biweekly with their assigned spiritual counselor. They must also attend Sunday morning chapel services, a midweek service, daily devotions, and weekly Bible classes.

Abstinence from alcohol and addictive substances is a core tenet of The Salvation Army's religious beliefs. sincerely believes, as a matter of its religion, that long-term use of narcotics to treat addiction is not true rehabilitation, and that "abstinence and the power of God unto salvation is the only form of successful rehabilitation."

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Administrative Law

What Happened to End Citizens United PAC v. FEC?

The D.C. Circuit reheard the case en banc over sixteen months ago, but there's still no opinion.

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In January 2024, in End Citizens United PAC v. FEC, a divided panel of the U.S. Court of Appeals for the D.C. Circuit concluded that the Federal Election Campaign Act does not create a cause of action to challenge the FEC's exercise of enforcement discretion.

In October 2024, the full court voted to rehear the case en banc (as I noted in this post). Interestingly enough, the grant of rehearing expanded the issue before the court, perhaps for the purpose of cleaning up circuit precedent in this area.

Oral argument was held in February 2025.

It is now July 2026, and there is still no opinion.

It's been over two-and-a-half years since the original panel opinion, and over twenty months since the panel opinion was vacated, and the case is still not resolved.

As I noted in my post from 2024, this case implicates important questions concerning judicial review of agency non-enforcement decisions. So what is taking so long? Is there not a majority in support of a single rationale? Something else? Those of us interested in judicial review of agency action--and, in this case, agency inaction--would like to know!

Back in the day, the D.C. Circuit was known for relatively quick resolution of cases. The court does not typically hear oral argument over the summer and judges were expected to finish up their opinions during that time--and well before oral arguments were held in the fall. (This also meant that clerks rarely had to hand off cases to their successors, as the cases one set of clerks worked on would be largely resolved when the new clerks began.)  I do not recall whether this informal rule applied to en banc decisions, but a single case sitting around this long is still quite unusual for this court.

Perhaps the reasons for the delay with End Citizens United PAC will become evident once the opinion is ultimately released. Until then, we will just keep waiting.

Politics

"But What About My Goats?": The Roman Poet Martial on Lawyers

Reposting an item from 2015, which I've used often in my Amicus Brief Clinic, and which some of my students say they found enlightening.

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From the Encyclopaedia Londinensis or, Universal dictionary of arts, sciences, and literature; Volume XIV; Edited by Wilkes, John. (London 1816), via Wikimedia

 

I was recently reminded of one of the Epigrams of the Roman poet Martial (Marcus Valerius Martialis, colloquially pronounced in English as "Marshall"). It is about the lawyers of his day, but it reflects—in an exaggerated way, of course—something that some lawyers, and many law students, tend to do today in their briefs, especially briefs that deal with glamorous subjects such as constitutional law. Here is a translation I much liked, by Roger Dickinson-Brown, reprinted with permission:

There is no poison here, no rape or force—
a simple case: my neighbor stole my goats.
But my expensive lawyer will discourse
on the whole history of law. He quotes
book, precedent and chapter 'til he's hoarse.
Fine, noble words! But what about my goats?

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Free Speech

Claim That State Employee Was Unconstitutionally Demoted "Because She Did Not Share" Education Agency's Views on Race Can Go Forward

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From Spengler v. Coop. Educ. Serv. Agency 7, decided yesterday by Seventh Circuit Judge Michael Scudder, joined by Chief Judge Michael Brennan and Judge Candace Jackson-Akiwumi:

In 2018, Becky Spengler started working as a special education administrator in Wisconsin. A couple years into the role, her supervisors pushed her and the rest of her team to adopt an "equity mindset," which required everyone to interrogate their implicit racial biases and privileges. Spengler understood the demand differently. She thought she had to believe that all white people—and only white people—are naturally racist. Spengler refused to adopt the equity mindset, and as a result, her employer demoted her to a different job….

Spengler … alleges that her employer violated the First Amendment by retaliating against her for what she believes and what she declines to believe. The district court never considered this claim, determining that Spengler insufficiently pleaded it…. [W]e disagree and remand for further proceedings….

In 2018, [Wisconsin state] Cooperative Educational Service Agency 7 hired Spengler as an Integration Director…. CESA 7 hired Spengler to effectuate a contract with the Wisconsin Department of Public Instruction [DPI] …. Spengler trained and supported the special-education directors for the 38 school districts within CESA 7. She also worked as a coach who provided professional learning to help teachers and staff implement training and particular workplace practices….

Spengler claims that after a couple years, DPI began focusing on race by requiring coaches to adopt an "equity mindset." According to DPI's Coaching Competency Practice Profile, a coach with an equity mindset "cultivates … the willingness and ability to see and speak to how their power and privilege are at work to systematically advantage some while simultaneously disadvantag[ing] others," helps others understand "how their thoughts and actions may negatively impact marginalized … communities," and "surfaces the impact of white supremacy and the history of whiteness on systems" while working "to disrupt and dismantle its effects."

Spengler thought the push for coaches to have an equity mindset was itself racist and discriminatory against white people. As she saw it, DPI's worldview anchored itself in a belief that "the natural state of White people—unlike people of color—is to be racists." When she voiced her disagreement with this perspective, tension emerged among Spengler and her co-workers.

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Guns

Banning Parents from Possessing Guns Because Their Child Has Described Thoughts of "Harming Herself Using a Rope" Violated Second Amendment

The ban was imposed even though police officers "examined [the parents'] gun safes, confirming that the firearms were stored in locked safes with trigger locks."

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From Wysocki v. Nassau County, decided Tuesday by Judge Sanket Bulsara (E.D.N.Y.):

Dennis and Lisa Wysocki were issued New York State pistol licenses by the Nassau County Police Department's ("NCPD") Pistol License Section ("PLS") in September 2017 and February 2021 respectively. In 2022, both applied for and were issued unrestricted concealed-carry pistol licenses.

The Wysockis live with their minor daughter, who was in middle school in February 2023. On February 8, 2023, their daughter told a school counselor she had been feeling depressed and described past thoughts of harming herself using a rope. The counselor asked her if there were firearms in the home, and she confirmed their presence.

On February 10, 2023, the Wysockis took their daughter to the Cohen Children's Medical Center. She was evaluated by psychiatrist Dr. Joshua Stein who concluded she "does not represent an imminent danger to self or others" and could return home. On February 11, 2023, Child Protective Services ("CPS") caseworkers and NCPD officers visited the Wysockis' home in response to the school report. The NCPD officers examined their gun safes, confirming that the firearms were stored in locked safes with trigger locks.

On February 13, 2023, Dennis Wysocki called the PLS and spoke with Officer Vito Scaglione ("Scaglione") to report his daughter's comments and the visit from the police. He relayed that the officers had examined the safes, confirmed that their firearms were properly stored, and that his daughter had been evaluated and discharged by Dr. Stein as not an imminent danger to herself or others.

During the phone call, Scaglione informed Dennis that their pistol licenses were going to be suspended given their daughter's expressed thoughts of self-harm and that they would have to surrender their guns. That same day, the Wysockis took their firearms to a federal firearms licensee for safekeeping and went to the PLS office to provide Scaglione with a receipt confirming this transfer.

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Politics

Sixteen Fun Facts About Me

Building on a meme started by Bryan Caplan and Richard Hanania.

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Prominent economist Bryan Caplan and political commentator Richard Hanania have started a "Sixteen Fun Facts About Me" meme on their respective blogs/substacks. Here is my list (in rough chronological order):

1. I was born in the then-Soviet Union. As an infant and toddler, I spent a lot of time in the hospital, due to various ailments. One time, a nurse asked my mother if I was her only child. She said yes. "That's unfortunate," the nurse commented, with typically awful Soviet bedside manner, "because this one probably won't live." Fortunately, the nurse turned out to be wrong, and I survived.

2. I didn't learn how to read in either English or Russian until the age of eight - a consequence of lack of motivation and possible undiagnosed dyslexia. But when I finally did learn, I almost immediately started reading adult books, rather than those meant for kids. My daughter Lydia - probably the family member most like me - didn't learn to read until the age of nine. A consequence of dyslexia which did get diagnosed. We spent many hours memorizing sight words with her to overcome it. When Lydia did finally learn, the first book she read on her own was the classic science fiction novel Ender's Game, which is intended for adults.

3. I grew up in the Boston area and have been a big Boston sports fan since I was about nine. The first team I followed closely was the 1982-83 Boston Bruins, who had the best record in the NHL, but lost in the conference finals in the playoffs (I'm still mad about that). My favorite player was Rick "Nifty" Middleton, the Bruins' leading goalscorer. In retrospect, the best player on the team was actually Ray Bourque, who went on to become one of the two or three best defensemen ever, and arguably the second-greatest Bruin after Bobby Orr.

4. In middle school and high school, I often worked as a babysitter. I wish I could say I did it to break down gender stereotypes (most babysitters are female, which was even more true back then). But the real reason was that I found babysitting less onerous and unpleasant than mowing lawns, and other yard work. A five-year-old I sat for once told me that he obeyed me far more than his parents. I asked why that is. "Because," he said, "when you tell me to do something, I know you really mean it." When I became a parent myself, many years later, I came to understand why it's hard to "really mean it" when disciplining your own kids.

5. My first official on-the-books job was working at the Lexington, MA public library when I was 15. I had the impressive-sounding title of "Assistant Librarian." But the actual work was stacking and reshelving books. Much of the time, I could not resist the temptation to read the books, instead of stacking them. My supervisor eventually got tired of this, and told me I had to either quit or be fired. I resigned to spend more time with my family.

6. My most significant extracurricular activity in high school was the debate team. One time, when we were preparing for a tournament, we decided should call Harvard philosophy Prof. John Rawls (who lived in Lexington) for advice on an argument we were developing. My teammate Anjan Mukherjee (who later went on to become a prominent financier) said I should be the one to call Rawls. "You should talk to him," he said, "because you guys have a lot in common." The idea that a world-famous political philosopher had anything in common with an obscure high school sophomore seemed totally ridiculous. But I called Rawls anyway, and he generously spent half an hour on the phone answering my questions. We didn't learn anything that was useful for the tournament (Rawls said he hadn't thought about our issue). But the story became a minor debate-world legend. I recounted it in a bit more detail in my 2010 immigration memoir (pp. 25-26).

7. I became a libertarian later that same year, after I read Robert Nozick's Anarchy, State, and Utopia (Nozick was Rawls' great critic and rival). In contrast to most young libertarians of my generation and the one before, I was never much influenced by Ayn Rand, though I respect her achievements in becoming one of the greatest-ever popularizers of libertarian ideas (which is not at all how she saw herself!).

8. The first girl I ever fell in love with was a high school debate opponent. My cause was pretty much doomed from the start, in part because she was two years older (a big difference at that age). But we kept in touch in later years.

9. In different life circumstances (especially if born in the US rather than the Soviet Union), I can see myself potentially becoming a left-liberal or (less likely) even a socialist. But I think I could never have been a social conservative or a nationalist. I'm too skeptical of authority and tradition to be a social conservative. And the illogical and anti-intellectual nature of most nationalist ideology is totally inimical to me. I hate both socialism and nationalism, and recognize that the former has the higher body count of victims, including the single biggest mass murder in the entire history of the world. But the hostility to nationalism is more intuitive and visceral. Not coincidentally, my favorite among my many nonacademic publications is probably "The Case Against Nationalism" (coauthored with Alex Nowrasteh).

10. The summer after my freshman year at Amherst College, I worked as an intern at the Cato Institute. They assigned me to be a research assistant for legendary economist Julian Simon, famous for being the author of The Ultimate Resource. Simon's brilliance was incredible. But the job went badly, in part because he wasn't always clear about what he wanted, and I didn't try hard enough to figure it out; plenty of blame to go around! In later years, I made sure to be more clear with my own RAs. Cato generously overlooked this rocky start to our relationship. They made me an adjunct scholar in 2008, and eventually their B. Kenneth Simon Chair in Constitutional Studies in 2022 (in addition to my primary job as a law professor at George Mason University).

11. If I liked math and was good at it, I might well have become an economist. But, sadly, I'm pretty bad at it, and I really hate doing it. Thus, I went to political science graduate school at Harvard. Eventually, I decided to do a joint degree with Yale Law School, with a view to potentially becoming a law professor. I chose that path because 1) the law professor job market seemed a bit less competitive than that in political science and 2) the male-female ratio in poli sci grad school was heavily skewed towards the former, and I thought I would have a better chance of finding a girlfriend in law school. When students ask me about my career choices, I emphasize that 2 was not really a good criterion for choosing a graduate program! If necessary, find dates outside of school.

12. The summer after my first year in law school, I worked as a student law clerk at the Institute for Justice, a major public interest law firm. One of the cases I worked on was CRDA v. Banin, in which Donald Trump had influenced Atlantic City to use eminent domain to take an elderly woman's house so that he could build a parking lot for one of his casinoes on the site. The court eventually invalidated the taking because it was not for a "public use," as required by the state constitution. This experience helped stimulate an interest in constitutional property rights, which later became a major focus of my research agenda as an academic.

13. In the fall of 1998, I interviewed for summer associate positions at various New York and Washington, DC law firms. One of the interviewers who came to Yale that year was future Supreme Court Justice Brett Kavanaugh. He recommended that his firm invite me for a "call back" interview at their offices in DC. But, afterwards, I didn't get the summer associate offer. Usually, students who got a call back interview were almost guaranteed to get summer associate positions. I e-mailed Kavanaugh to ask what went wrong. He said he wanted to hire me, but partners at the firm said "no" because they thought I was too likely to leave the firm to become an academic. The partners weren't wrong!

14. I met my future wife, Alison, at an Institute for Humane Studies event in 2008 (we both previously won IHS fellowships). My wooing was aided by the fact that she was a regular reader of the Volokh Conspiracy blog, and already knew who I was. Her favorite among my blog posts was "The Case for Paying Dead Farmers Not to Farm Instead of Living Ones." I still oppose farm subsidies, especially the kind that seek to reduce output rather than increase it. But supporters can argue they help bloggers find spouses, and thereby increase the birth rate!

15. I am a longtime science fiction and fantasy fan, and have a long list of publications and blog posts on various issues related to the politics of those genres. This hasn't done much to advance my academic career. But it did once get me a speaking invitation to go to Australia! This year, I'm going to be the presenter/keynote speaker at the Libertarian Futurist Society's annual Prometheus Award ceremony.

16. After becoming a career academic, I did not expect to ever do any significant litigation. As the saying goes, those who cannot do, teach! But the litigation that led to the invalidation of Trump's massive IEEPA tariffs originated in a blog post I wrote in February 2025. Jeff Schwab of the Liberty Justice Center contacted me about it, and we eventually agreed I would work with them on a case pursuing the ideas I laid out. I then did a follow-up post seeking clients. One of my former students read the post, and showed it to his uncle, Victor Schwartz, a wine importer whose business was gravely damaged by the tariffs. Victor's firm, V.O.S. Selections became our lead plaintiff in the case. After almost a year of litigation and two lower court wins the Supreme Court ruled in our favor. We were eventually joined by prominent Supreme Court litigators Michael McConnell and Neal Katyal, and it was Katyal who did the oral argument before the Supreme Court. But the blog post got things started.

D.C. Circuit Denies Stay of Order Removing Trump's Name from Kennedy Center

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From D.C. Circuit Judges Patricia Millett, Robert Wilkins, and Gregory Katsas today in Beatty v. Trump:

On May 29, 2026, the district court ordered, among other things, (1) the removal of President Trump's name from the façade of the John F. Kennedy Center for the Performing Arts and all other similar physical signage, (2) the deletion of his name as part of the title of the Center on the official website, and (3) the withdrawal of any trademark applications that included President Trump's name as part of the Kennedy Center's appellation. The court further ordered those changes to be made by June 12, 2026.

At 3:46 p.m. on June 12, 2026—late afternoon on the compliance date— Appellants filed a motion for a stay pending appeal …. [But Appellants] have failed to show how they will be irreparably injured absent a stay…. "[A] showing of irreparable harm is a necessary prerequisite for a stay" ….

First, they argue that removal of President Trump's name will inflict irreparable harm in terms of expense and time "squander[ed][.]" Since that removal has already occurred, a stay would not avert those harms (even assuming they would qualify as irreparable).

Second, Appellants allege financial harm to the Kennedy Center if they are not permitted to reinstate President Trump's name. They argue that removal of President Trump's name "threatens to impede the Center's fundraising efforts and [will] contribute to the financial decline of the Center."

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Executive Power

Video of National Constitution Center Conference on "2026 Supreme Court Review: Key Decisions, Executive Power, Civil Discourse"

Three different VC bloggers were among the speakers: Jonathan Adler, Keith Whittington, and myself.

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NCC

Yesterday, the National Constitution Center held a conference on the 2025-26 Supreme Court term and the many important cases decided therein. The video of the event is now available and I embed it below. Each of the three panels featured a VC blogger: Keith Whittington on the first panel about key cases, myself on the second one about executive power, and Jonathan Adler on the third, focused on civil discourse. Thus, this is a must-watch event for all loyal VC readers!

My panel runs from about 48:00 to 1:35:00. I spoke about the tariff case (which I helped litigate), broader issues related to executive power, and judicial review of invocations of emergency powers, among other issues. The other panelists included numerous prominent legal scholars and commentators (full list here). Here's the video:

"AI Is the Democratic Party's Next Villain"

"We analyze roughly 280,000 candidate fundraising emails to trace the rise of anti-billionaire populism in the Democratic party and see how it is slowly merging with a new kind of anti-AI populism."

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Another very interesting item from my Hoover colleague Andy Hall (Free Systems); a brief excerpt, though you should read the whole thing:

Something is shifting in the Democratic party. A string of primary upsets has fed a growing narrative that the party's base now rewards a more aggressive brand of economic populism, one aimed squarely at billionaires, corporate power, and the political influence that money buys. And a number of sharp observers, including Jasmine Sun [piece here] and Archie Hall [piece here], have been arguing that this energy may come for AI next, a prediction that draws support from David Shor's polling showing voters souring on the technology and on the companies building it as part of a broader concern towards what they see as a rigged economy and a hopeless cost-of-living crisis.

But almost all of the evidence behind this narrative describes the mood of the American electorate, and moods are only half of the story. Politicians do not respond mechanically to shifts in public sentiment—they answer to donors, activists, and primary challengers, not just median voters … and sometimes they stake out new positions well before the public asks for them, or refuse to move long after it has. If we want to know whether AI populism is becoming an organizing position of the Democratic party, rather than a diffuse sentiment floating around in polls, we need to measure the politicians directly. We need to watch what candidates actually say when they are trying to raise money, to garner attention, and to win elections.

Fundraising emails turn out to be a remarkably good place to look. Campaigns test these messages relentlessly against open rates and donations, so the language that survives is the language that operatives have learned actually moves their base—a compressed, high-frequency, almost real-time record of what politicians believe their supporters want to hear. Drawing on Derek Willis's archive of political fundraising emails, we analyzed roughly 280,000 candidate emails sent since 2017 to trace how anti-billionaire populism became a major component of Democratic fundraising rhetoric, and how, more quietly but unmistakably, AI is starting to follow the same path….

Free Speech

Plaintiffs Alleges "Harassment by Posting of … News Accounts … Referenc[ing His] Ongoing Litigation … [with] His Ex-Wife"

A court refuses to order defendant to stop such posting.

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From Kitsap County Superior Court Judge William Houser in Mavy v. Tomashefsky (Wash. Super. Ct. Clallam County), decided May 28:

Petitioner requests the court to amend the existing restraining order [which is currently on appeal -EV] to include the additional restraints of:

  1. Respondent is to have no contact with Petitioner's minor children; and
  2. Respondent is restrained from publishing statements intended to harass, intimidate, or threaten the protected person.
  3. Respondent shall not encourage or use a third person to post or share statements on line or via any other mode intended to harass, intimidate, or threaten the protected person; and
  4. Respondent is restrained from publishing identifying information about the protected person or the protected person's children.

For the following reason, the Motion for Additional Restraints is DENIED….

Mr. Mavy askes that his minor children be included in the order. They were not included in the original petition. The relationship between the children and Mr. Tomashefsky is one of step-parent/step-child. There is insufficient credible evidence presented to support the finding that they have been the subject of harassment as defined by law.

Mr. Tomashefsky is the husband of Mr. Mavy's ex-wife. There is significant litigation history between the parties, including this litigation on a civil harassment order. Mr. Tomashefsky posts news accounts online that involve various issues of interest to the community. He posts these news accounts under the banner of The Olympic Herald.

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Free Speech

$150K Settlement as to Community College "Diversity, Equity, Inclusion, and Accessibility" Requirements for Teaching

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The Institute for Free Speech, which represented Bakersfield College Prof. Daymon Johnson, reports:

Johnson has secured a settlement that makes his First Amendment protections permanent—and includes a $150,000 payment for attorneys' fees.

Kern Community College District has agreed to settle Johnson v. Fliger, a federal lawsuit brought by the Institute for Free Speech on behalf of Professor Johnson. Under the settlement, the preliminary injunction that a federal court entered in February 2026 will be converted into a permanent injunction for a period of five years, barring officials from investigating, disciplining, or terminating Johnson based on his speech in the classroom, in his scholarship, or as a private citizen….

Specifically, the case challenged California regulations requiring community college faculty to "employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles" and to demonstrate "proficiency in DEIA-related performance to teach, work, or lead within California community colleges." Professor Johnson, a member of the dissident faculty organization the Renegade Institute for Liberty (RIFL), refused to support the government-mandated views and faced the threat of termination as a result.

Here's the excerpt I posted in February from the Johnson v. Fliger decision by Judge Kirk Sherriff (E.D. Cal.):

Plaintiff Daymon Johnson, a professor of history at Bakersfield College, brings this pre-enforcement challenge seeking injunctive and declaratory relief to preclude officials of Bakersfield College and the Kern Community College District ("KCCD") from enforcing, as to his intended speech, two provisions of the California Code of Regulations. These provisions would require Johnson to employ "teaching, learning, and professional" practices reflecting diversity, equity, inclusion, and accessibility ("DEIA") and anti-racist principles, require Johnson to "establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges," and require defendants to evaluate Johnson based in part on his proficiency in such DEIA principles….

Johnson alleges that the DEIA regulations compel his speech and discriminate against his viewpoint in violation of the First Amendment. He alleges that he fears either being compelled to express a viewpoint with which he disagrees or being punished if he continues to refuse to express defendants' desired viewpoint or if he expresses his contrary views. Johnson has credibly identified specific speech that he reasonably fears would be proscribed by the DEIA regulations. And as the Ninth Circuit has found, he "has established a 'concrete plan to violate the law' based on his allegations regarding his desired speech and his refusal to express support for [DEIA] principles." Johnson v. Fliger (9th Cir. 2025) (quoting Thomas v. Anchorage Equal Rts. Comm'n (9th Cir. 2000) (en banc)).

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