The Volokh Conspiracy
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Court Blocks Community College "Diversity, Equity, Inclusion, and Accessibility" Requirements for Teaching
From yesterday's decision by Judge Kirk Sherriff (E.D. Cal.) in Johnson v. Fliger (for more on an earlier phase of the case, see here):
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, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)).
Johnson has established that his intended speech, which reflects his opposition to the DEIA regulations and to the state's DEIA policies, concerns a matter of public concern. To the extent the DEIA regulations proscribe and chill Johnson's intended speech in his teaching or scholarship as a professor, in his work with a "dissident faculty" group on campus that opposes the DEIA regulations, or in his capacity as a private citizen or public academic engaging in extracurricular speech, Johnson has a First Amendment interest in such intended speech. See Demers v. Austin (9th Cir. 2014); Reges v. Cauce (9th Cir. 2025). Defendants have failed to demonstrate "a legitimate administrative interest in suppressing the speech that outweigh[s] the plaintiff's First Amendment rights." …
Johnson has failed to establish a likelihood of success on his challenge to Bakersfield College's requirement that he complete mandatory DEIA training as a requirement to participate on faculty screening committees, as the government may express its views through such employee training, and Johnson fails to show that the training requires him to personally endorse the government's views as his own. Nor does Johnson establish that his official capacity speech as a member of Bakersfield College's Equal Opportunity & Diversity Advisory Committee ("EODAC") is protected speech, as it is government speech and he has not established that it is sufficiently connected to scholarship or teaching. See Sullivan v. Univ. of Washington (9th Cir. 2023) (rejecting argument that faculty members serving on state university's animal care and use committee were entitled to First Amendment protection, because they were "not thereby engaged in 'teaching and academic writing'"). Johnson also fails to establish a likelihood of success on his facial challenge to the DEIA regulations, as the DEIA regulations apply to a range of non-speech conduct and Johnson fails to show that they prohibit a substantial amount of protected speech relative to their plainly legitimate sweep….
In considering speech by government employees, courts balance the interests of the government "in promoting the efficiency of the public services it performs through its employees" and the employee's interest "in commenting upon matters of public concern." Pickering v. Board of Education (1968). In Garcetti v. Ceballos (2006), the Supreme Court established an exception to Pickering, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The Court noted that "expression related to academic scholarship or classroom instruction" could implicate additional constitutional interests, but it did not decide whether the Garcetti exception would apply "in the same manner to a case involving speech related to scholarship or teaching."
The Ninth Circuit addressed that open question in Demers, concluding that "Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed 'pursuant to the official duties' of a teacher and professor." Rather, "speech 'related to scholarship or teaching' is covered by the Pickering doctrine even if it was made pursuant to a public employee's official duties." …
Johnson fails to establish a basis to enjoin defendants from requiring that he complete Bakersfield College's DEIA training to be eligible to serve on a faculty screening committee. Johnson states that he "cannot successfully complete the DEIA training because [he] do[es] not agree with the ideology mandated by that training." He has therefore "refrain[ed] from applying to serve on a committee or doing the required DEI training." But
the requirement that Johnson complete DEIA training to be eligible to serve on a committee does not implicate his First Amendment rights, as the government may express its views through such employee training, and Johnson does not show that he is required to personally endorse the views expressed in the training…. In the absence of any such compelled endorsement or viewpoint discrimination, there is no basis to enjoin defendants from requiring such training before Johnson may serve on a committee. See Norgren v. Minn. Dep't of Hum. Servs (8th Cir. 2024) (dismissing public employee's compelled speech claim where trainings did not require affirmative agreement with their content). But defendants may not compel Johnson to speak in support of DEIA principles as part of the training, or sanction Johnson for refusing to endorse a specific viewpoint on DEIA principles….
With respect to Johnson's intended speech on behalf of RIFL [Renegade Institute for Liberty, a faculty extracurricular group recognized by the College], at the hearing on this motion defendants argued that Johnson's role as faculty lead of RIFL was part of his official duties and that his speech would therefore be "government speech" under Garcetti. This argument was not addressed in defendants' briefs, and, in any event, is unpersuasive. RIFL is an extracurricular organization in which certain faculty members participate. While it may be recognized by Bakersfield College like other campus extracurricular organizations, there is no evidence that RIFL speaks as the College or KCCD administration. Indeed, the FAC alleges: "RIFL represents a minority position on campus. Its members' outlook and ideals stand in general opposition to those espoused by many faculty members and members of the school administration …." And faculty members' "dissenting speech on a matter of public concern is not government speech under Garcetti."
Except as to the DEIA training requirement (and related service on a faculty screening committee) or as to official speech as a member of the EODAC, Johnson has shown that his intended speech would be in his capacity as a professor and would concern matters related to scholarship or teaching, or that it would be in his off duty" capacity as a private citizen (including as a public academic). It is therefore subject to Pickering … balancing….
[Applying Pickering, the court] considers whether defendants have shown "a legitimate administrative interest in suppressing the speech that outweighs the plaintiff's First Amendment rights." Defendants must also show that the DEIA regulations would alleviate "real, not merely conjectural," harms in a "direct and material way." Defendants do not address how Johnson's desired speech would cause specific harm to Bakersfield College, nor how the DEIA regulations would alleviate that harm. Rather, they assert merely a generalized interest in advancing the State's "legitimate and substantial interest in efficiently carrying out its educational mission, ensuring teaching excellence, and in securing equal education opportunity for students." Defendants also assert a general interest in being able to "review the content of faculty scholarship and teaching," "favor particular scholarship interests and approaches," and establish "academic standards for the quality and method of delivering instruction to students."
A public university has a legitimate interest in exercising certain control over its curriculum and in ensuring faculty members' compliance with academic and teaching standards. But while the First Amendment would not protect a faculty member who fails to satisfy a minimum level of academic competence, or, for example, who insists on lecturing a captive student audience at length on his personal political views rather than teaching his assigned math course, defendants do not point to any intended speech by Johnson that would fail to meet such academic competence or course requirements. Nor do defendants allege that regulation of Johnson's speech is required to prevent discrimination or harassment, or that Johnson intends to engage in derogatory speech entitled to lesser First Amendment protection under the Pickering test. See Thompson v. Central Valley Sch. Dist. No. 365 (9th Cir. 2025) (finding that speech involving slurs and violent language was entitled to "little weight" under Pickering …).
Johnson does not challenge Bakersfield College's authority to set academic competence or curriculum requirements generally. Rather, he seeks to preclude defendants from compelling him to endorse their views regarding DEIA and from sanctioning him for refusing to do so or for stating his contrary views. "[W]hen a university wants its professors to communicate a message on a matter of public concern and a professor does not want to communicate that message to his students, that is not a matter of classroom management but one of academic speech." And defendants appear to agree that they may not sanction Johnson under the DEIA regulations for his intended speech, as they maintain that "[t]he DEIA regulations do not prohibit any speech by the plain text of sections 53602(b) and 53605(a), either in and out of the classroom."
Defendants have articulated only a general interest in enforcing the State's DEIA regulations, without identifying any specific concerns with Johnson's intended speech. That general interest does not outweigh Johnson's First Amendment right not to be sanctioned for having a contrary viewpoint on DEIA matters or his right not to be compelled to speak in support of the State's views on DEIA matters….
Alan Gura, Courtney Corbello, and Del Kolde (Institute for Free Speech) represent Johnson.
