Do Or DEI? Federal Judge Finds Policies Are Mandatory And Unconstitutional In California Case

Authored by Jonathan Turley,

Below is my column in The Hill on the recent victory of a California professor in challenging diversity, equity and inclusion (DEI) policies on free speech grounds.

It is a rare win for dissenting faculty as DEI policies become more expansive and mandatory. Here is the column:

From academia to corporations to the government, diversity, equity and inclusion (DEI) policies have expanded exponentially in the last 10 years.

At colleges and universities, administrators now monitor compliance with DEI on every level, from teaching to hiring to promotions.

And there is little subtlety or nuance in these programs. You object to DEI statements, priorities and training at your own peril.

This week, federal magistrate Judge Christopher Baker issued a major 44-page report finding that Bakersfield College in California violated the First Amendment rights of Professor Daymon Johnson with its DEI mandates for faculty.

If upheld, the report could be the foundation for a major free speech ruling.

The Johnson case is important because it challenges the claim of universities that DEI policies are simply guidelines and suggested practices. At the same time, universities have massively increased DEI offices and incorporated reviews in every aspect of academic life. The problem is that many DEI policies raise political, religious and academic values that some academics do not support. This can range from pronoun requirements to required perspectives taught in classrooms.

Johnson is one such dissenter.

The history professor found himself the subject of a five-month investigation by the college after he criticized a 2019 Facebook post of English Professor Andrew Bond in which Bond called the United States a “piece of s**t nation.” Bond had added, “Go ahead and quote me, conservatives. This country has yet to live up to the ideals of its founding documents.”

Johnson did quote him, with the caption: “Do you agree with this radical [social justice warrior] from BC’s English Department? Thoughts?” A commentator on Facebook later added “Maybe he should move to China, and post this about the PRC in general or the Chinese Communist Party and see how much mileage it gets him. I wonder, do they still send the family the bill for the spent round?’”

Bond responded in September 2021 by filing an administrative complaint against Johnson for harassment and bullying. Although Johnson was eventually cleared, the college issued a clear warning to him that it would “investigate any further complaints of harassment and bullying and, if applicable, [taking] appropriate remedial action including but not limited to any discipline determined to be appropriate.”

Johnson said that he has experienced retaliation and harassment due to his opposition to DEI policies. Judge Baker’s review of Bakersfield’s policies found that they are clearly mandates, not suggestions. He found that the college used mandatory “shalls” to state the expectations of faculty, including “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.”

Bakersfield also requires that faculty “promote and incorporate culturally affirming DEIA and anti-racist principles to nurture and create a respectful, inclusive, and equitable learning and work environment.” Judge Johnson found that the claim of the college that these are merely “aspirational goals” is “disingenuous.”

This is not the first such free speech controversy for Bakersfield College. Another Bakersfield College history professor, Matthew Garrett, was previously fired for speaking out against social justice programs. He and other professors are now suing.

After that controversy, John Corkins, vice president of the Board of Trustees of the Kern Community College District Board (which oversees the college), declared, “We have to continue to cull” problem faculty. He added: “Got them in my livestock operation and that’s why we put a rope on some of them and take them to the slaughterhouse. That’s a fact of life with human nature and so forth, I don’t know how to say it any clearer.” He later apologized.

Law schools are also facing controversial mandates. In 2022, the American Bar Association required law schools to “provide education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation.” Many schools are now requiring faculty to annually confirm DEI or diversity components in teaching.

I have long incorporated race issues in my classes. I also teach critical race theory, alongside other (including opposing) legal theories to my first-year torts students. I do so because I want them to be familiar with these issues and theories in forming their own views and values. However, the increasing mandates raise serious questions about the free speech and academic freedom of faculty who do not share those views.

Often, schools will find alternative grounds for harassing or firing dissenting faculty.

Those efforts received a boost recently from the United States Court of Appeals for the Fourth Circuit, which rejected the free speech claims of North Carolina State University Professor Stephen Porter. The statistics professor had objected to what he considered the lower standards used by his school to hire minority faculty. When he sued over retaliation for his views expressed both publicly and to the faculty, the Fourth Circuit ruled that the school could discipline him for a lack of “collegiality.”

“Collegiality” was long used as an excuse to block promotion or hiring of women, minority and leftist faculty.

The decision in Porter v. Board of Trustees of North Carolina State University is pending before the Supreme Court for possible review. If allowed to stand, it would offer universities a ready-made excuse for cracking down on the dwindling number of dissenters.

For faculty, what are presented as suggestions are often treated as mandatory. 

Take the “indigenous land acknowledgment” created for faculty at the University of Washington. The school told professors that they could add such a statement to their course material to honor “all tribes and bands within the Suquamish, Tulalip and Muckleshoot nations.” Computer science Professor Stuart Reges disagreed with the factual and philosophical basis of the statement, so he posted a land acknowledgment stating that under “the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.”

He was told to remove his optional statement. The request was no longer optional. Dean Magdalena Balazinska explained that “[t]he statement Stuart Reges included in his syllabus was inappropriate, offensive and not relevant to the content of the course he teaches.”

However, the university’s land acknowledgment was somehow deemed entirely relevant and appropriate.

Bakersfield College continues to distinguish itself in these anti-free speech efforts.

The school may call itself “The Renegades,” but it has shown a lack of tolerance for any rebellious or dissenting faculty.

We may value renegades as mascots, but we increasingly abhor them as colleagues.