California college district scrambles after judge greenlights First Amendment suit against DEI rules

"California’s goal of promoting diversity, equity, inclusion, and accessibility in public universities does not give it the authority to invalidate protected expressions of speech."

With those words, a federal judge sent the Kern Community College District scrambling on how to respond to his ruling in a First Amendment lawsuit by a professor and its implications for an older ongoing lawsuit by a pair of professors.

The Board of Trustees held an emergency meeting Friday morning to confer with its legal counsel in closed session about the litigation by Daymon Johnson, Matthew Garrett and Erin Miller, all related to the historians' activities with Bakersfield College's right-leaning Renegade Institute for Liberty (RIFL) and its clashes with the school's progressive Social Justice Institute.

U.S. Magistrate Judge Christopher Baker issued his findings to District Judge Ana de Alba days earlier, recommending the denial of KCCD's motion to dismiss Johnson's suit and partial approval of a preliminary injunction against its enforcement of the state's DEIA regulations.

KCCD would be prohibited from "investigating, disciplining, or terminating" Johnson based on the viewpoint of his "proposed social and/or political speech, exercised in his personal capacity and through his teaching and academic writing," under Baker's recommendation. 

The parties have two weeks after being served to file written objections to the findings.

Johnson's lawsuit alleges ongoing chilling effects against his speech from the district's actions, including KCCD's firing of Garrett this spring based on "unprofessional conduct and dishonesty" charges and the DEIA regulations.

He asserts that "much of Garrett’s conduct that resulted in his termination involves the same political speech [Johnson] seeks to espouse," Baker wrote.

The district also investigated Johnson for five months, requiring him to hire a lawyer, for "criticizing and questioning a colleague’s views on RIFL’s Facebook page," which Johnson took over from Garrett as faculty lead, the suit alleges.

Most notably, KCCD Vice President John Corkins compared RIFL faculty to "livestock" who should be culled in a public meeting, though he later apologized.

Baker's findings have relevance to the nearly two-year-old lawsuit by Garrett and Miller, over which he is also presiding.

The case has a scheduling conference Dec. 7.

The judge said some of Garrett's alleged violations were actually "pure political speech," such as his op-ed disputing the term "cultural Marxism" was "hate speech" and criticism of BC's curriculum committee and the "Cesar E. Chavez Leadership Certificate."

Garrett gave public comment before the KCCD trustees during open session Friday morning.

"It is important you understand that the charges against me were not even [Baker's] focus, and that he was by no means exhaustive," Garrett said, according to a recording he shared with Just the News (Garrett starts at 4:55.)

He noted that Baker singled out defendant Sonya Christian, who took over the state community college system in June after recommending Garrett's firing in her role as KCCD chancellor this spring. 

The judge deemed "disingenuous" Christian's characterization of the DEIA regulations as "articulat[ing] the aspirational goal" of DEIA, when "by their plain language, the regulations require faculty members like [Johnson] to express a particular message."

"Your administration has been running dishonest investigations, targeting DEI skeptics with very strict standards of civility while allowing DEI advocates to terrorize us with the most horrible conduct on campus," which a judge has now confirmed, Garrett told the trustees.

"My fear is that you will continue wasting tax dollars fighting us – your faculty – because you despise us," he said. "You think we need to be culled, and you believe this false narrative because that’s what you were fed by the administration."

A district spokesperson declined to elaborate on the trustees' discussion with legal counsel Friday morning. But the spokesperson provided a statement to Just the News on the "inclusive learning environment" it fosters under "our Board’s policies and procedures, the California Education Code and state regulations, faculty contracts, and other legal authority."

"These state-mandated DEI regulations do not force our faculty to abide by ideological concepts, but rather ask our faculty to promote and encourage an inclusive environment in their classrooms," the statement reads. The district will "vigorously defend itself" in Johnson's suit.

Johnson has "presented ample evidence of his intent to engage in speech and conduct that Defendants could conclude is inconsistent with" the state education code provisions invoked to fire Garrett, the judge wrote.

KCCD has warned Johnson he'll face investigation and potential discipline if his social media posts draw "any further complaints of harassment and bullying."

He's also plausibly at risk from the district's "Institutional Code of Ethics," according to Baker. That code seems to have played a role in Johnson's investigation that required a lawyer.

Baker rejected Christian's claim that state DEIA regulations don't apply to individual employees, when their "plain language" imposes "minimum qualifications on all employees, dictates what faculty must teach, how they should teach, and how they will be evaluated." 

Johnson asserts he is "firmly committed" to not only ignoring the regulations but criticizing them in and out of the classroom, which in and of itself violates his obligation to "employ professional practices that reflect DEIA and anti-racist principles" – putting him at risk of punishment, the judge said.

The district hasn't even tried to argue its interest in regulating Johnson's speech through the state education and institutional ethics codes "outweighs" his First Amendment rights, Baker said.

Baker's findings may also spook the State Center Community College District, which put David Richardson on administrative leave this spring after the gay history professor shared Jeremy's Chocolate at Madera Community College's open house. The Daily Wire brand labels its nut-filled bars "He/Him," and nutless bars "She/Her."

Richardson was already suing SCCCD for an investigation and letter of reprimand for the "unprofessional conduct" of choosing the pronouns "Do, Re, Mi" for his avatar in a pronoun-etiquette Zoom seminar.

"There are plenty of rumors that I will be back in the spring, but no official word," Richardson told Just the News on Friday. "The district seems determined to drag this out to the very last second."

SCCCD "arbitrarily" delayed his mid-November hearing to next month, and "I was told that it will take an additional two weeks to make a decision, which puts us right up against the Christmas holidays," he wrote in an email. On the hopeful side, Richardson said, he saw a photo of his name "posted on one of the mailboxes in our brand new building."