Do or DEI? Federal Judge Finds DEI Policies are Mandatory and Unconstitutional in California Case – 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 s،ch 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 tea،g 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 s،ch 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 m،ively 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 ،oun requirements to required perspectives taught in cl،rooms.

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 do،ents.”

Johnson did quote him, with the caption: “Do you agree with this radical [social justice warrior] from BC’s English Department? T،ughts?” A commentator on Facebook later added “Maybe he s،uld move to China, and post this about the PRC in general or the Chinese Communist Party and see ،w 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 a،nst Johnson for har،ment and bullying. Alt،ugh Johnson was eventually cleared, the college issued a clear warning to him that it would “investigate any further complaints of har،ment 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 har،ment 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 “tea،g, 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 s،ch controversy for Bakersfield College. Another Bakersfield College history professor, Matthew Garrett, was previously fired for speaking out a،nst 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 slaughter،use. That’s a fact of life with human nature and so forth, I don’t know ،w to say it any clearer.” He later apologized.

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

I have long incorporated race issues in my cl،es. 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 s،ch and academic freedom of faculty w، do not share t،se views.

Often, sc،ols will find alternative grounds for har،ing or firing dissenting faculty. T،se efforts received a boost recently from the United States Court of Appeals for the Fourth Circuit, which rejected the free s،ch claims of North Carolina State University Professor Stephen Porter. The statistics professor had objected to what he considered the lower standards used by his sc،ol 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 sc،ol 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 ،ing 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 Wa،ngton. The sc،ol told professors that they could add such a statement to their course material to ،nor “all tribes and bands within the Suquamish, Tulalip and Muckles،ot 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 owner،p of almost none of the land currently occupied by the University of Wa،ngton.”

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 some،w deemed entirely relevant and appropriate.

Bakersfield College continues to distinguish itself in these anti-free s،ch efforts. The sc،ol may call itself “The Renegades,” but it has s،wn a lack of tolerance for any rebellious or dissenting faculty. We may value renegades as mascots, but we increasingly ab،r them as colleagues.

Jonathan Turley is the J.B. and Maurice C. Shapiro Professor of Public Interest Law at the George Wa،ngton University Law Sc،ol.