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Ninth Circuit Revives Suit Over Colleges’ Diversity Mandate
Panel Says District Court Judge Erred in Finding That Professor Lacks Standing to Challenge Statutes
By Kimber Cooley, associate editor
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DAYMON JOHNSON history professor |
The Ninth U.S. Circuit Court of Appeals held yesterday that a trial judge wrongly concluded that a Bakersfield College professor lacks standing to challenge, on First Amendment grounds, provisions of the Education Code requiring instructors to “employ…practices that reflect…anti-racist principles,” saying the plaintiff had adequately alleged a “credible threat of enforcement” based on his refusal to teach critical race theory in his classes.
In a memorandum decision, signed by Circuit Judges Consuelo M. Callahan, Bridget S. Bade, and Lucy H. Koh, the court said that the plaintiff alleged sufficient facts to establish standing even in the absence of any specific threat of discipline against him by the school or the community college district.
At issue are two provisions of the Education Code, adopted in 2023, contained in a subchapter on “Diversity, Equity, Inclusion and Accessibility” (“DEIA”).
Sec. 53605 requires community college faculty members to “employ 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” and to “promote and incorporate culturally affirming DEIA and anti-racist principles to nurture and create a respectful, inclusive, and equitable learning and work environment..”
Sec. 53602(b), in turn, provides:
“The evaluation of district employees must include consideration of an employee’s demonstrated, or progress toward, proficiency in diversity, equity, inclusion, and accessibility DEIA-related competencies that enable work with diverse communities….District employees must have or establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges.”
Following the sections’ enactment, Daymon Johnson, a history professor, filed a complaint against various officials of the Kern Community College District (“KCCD”).
First Amendment Claims
Johnson asserted violations of his First Amendment rights under 42 U.S.C. §1983 and requested “[o]rders preliminarily and permanently enjoining Defendants…from enforcing” §53602, and §53605, among other provisions, and declaratory relief announcing that the sections violate the Constitution.
He also sought to enjoin “[d]efendants…from investigating, disciplining, or terminating” his employment based on Education Code §87732(f), which specifies that “academic employees” may be dismissed for “persistent violation of, or refusal to obey, the school laws of the state.”
In the operative complaint, Johnson claims that he was previously investigated, and cleared, by the college after he questioned a profanity-laced social media post by fellow-faculty-member Andrew Bond, criticizing President Donald Trump and the U.S. Johnson says a disciplinary query was opened after he reposted the remarks and asked, “Do you agree with this radical…from BC’s English Department?”
He also points to the firing of another instructor, Matthew Garrett, who had previously served as the faculty advisor for the college’s Renegade Institute for Liberty (“RIFL”), which describes itself as an organization that “promotes diversity of thought and intellectual literacy through the free and open discourse of American ideals.” Johnson, who took over the role from Garrett, claims his colleague was terminated for “infidelity to” DEIA concepts.
Johnson alleges in the pleading:
“Given school officials’ various ideological proclamations, his experience of being investigated for pure political speech, and the example Defendants made of his colleague and direct predecessor as RIFL Faculty Lead, whom they fired for dissent, Professor Johnson refrains from expressing himself on political matters for fear of being subjected to further investigations and termination.”
He cites plans to teach theories “debunk[ing] the anti-Columbus narrative; pan-Indianism, the notion that all Native Americans share the values of peace, harmony and respect for nature (Johnson’s thesis for one-third of the course); the notion that the founding fathers founded a nation based on racism; and the claim that the Civil War wasn’t about ending slavery.”
Preliminary Injunction
After Johnson filed a motion for preliminary injunction in July 2023, Magistrate Judge Christopher D. Baker of the Eastern District of California recommended that the request be granted. Two months later, District Court Judge Kirk Edward Sherriff declined to adopt the findings and recommendations, saying:
“The Ninth Circuit has looked to the following factors to determine whether a plaintiff has sufficiently alleged an injury in fact to bring a pre-enforcement challenge: (1) whether the plaintiff has articulated a concrete plan to violate the law in question, (2) whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings against the plaintiff, (3) the history of past prosecution or enforcement under the challenged statute, and (4) whether the challenged law is applicable to the plaintiff.”
Applying the standard, he concluded that “the FAC does not contain sufficient details to allege injury in fact to establish standing and bring this pre-enforcement claim as to any of the challenged provisions” and declared that “[a]s Johnson has failed to establish standing, his complaint must be dismissed without prejudice.” Johnson appealed under 28 U.S.C. §1292, which provides jurisdiction over appeals from “[i]nterlocutory orders…refusing injunctions.”
Yesterday’s opinion “reverse[s] the district court’s conclusion that Johnson lacks standing to sue Defendant-Appellant officials of the Kern Community College District…under…§§ 53602(b), 53605(a) and (c), and, to the extent it incorporates those regulations, Cal. Educ. Code § 87732(f)” and remands for consideration of Johnson’s motion for a preliminary injunction.
Arguably Affected
Callahan, Bade, and Koh wrote:
“Johnson has sufficiently alleged ‘an intention to engage in a course of conduct arguably affected with a constitutional interest’ under the First Amendment….His intended conduct is ‘arguably proscribed’ by these provisions…because they directly regulate Johnson as an employee and faculty member of the Kern Community College District….”
They continued:
“Johnson has also adequately alleged a ‘credible threat’ of enforcement under these provisions….Johnson has established a [concrete plan to violate] based on his allegations regarding his desired speech and his refusal to express support for diversity, equity, inclusion, and accessibility (DEIA) principles….And importantly, the District Defendants have not disavowed enforcement.”
The panel addressed the absence of any current disciplinary proceedings, saying:
“Johnson’s allegations establishing a credible threat of enforcement are not defeated by the absence of a specific threat of enforcement by the District Defendants,…and the lack of a history of enforcement carries little weight because these regulations were enacted only months before Johnson filed suit….Therefore, Johnson has alleged sufficient facts to establish standing to sue the District Defendants under…§§ 53602(b), 53605(a) and (c), and Cal. Educ. Code § 87732(f), to the extent it incorporates those regulations.”
Agreeing with Sherriff as to Johnson’s lack of standing to challenge other Education Code sections prohibiting “dishonesty” and “aggression,…ridicule, or intimidation,” they concluded that the provisions “do not apply to Johnson’s intended political speech.” They opined”
“Although KCCD disciplined and terminated Professor Matthew Garrett under these provisions, allegedly in part for speech similar to Johnson’s intended speech, it is not clear that such speech, standing alone, would constitute a basis for disciplinary action. Garrett was disciplined and terminated for acts that Johnson does not intend to undertake, and the District Defendants disavowed enforcement of these provisions against Johnson for the intended conduct alleged in the first amended complaint.”
Continuing, they declared:
“We decline to decide whether Johnson is entitled to a preliminary injunction….We instead remand for the district court to consider Johnson’s motion for a preliminary injunction in the first instance.”
The case is Johnson v. Fliger, 24-6008.
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