Standing Doctrine Strikes Again To Bar Professor’s First Amendment Challenge To DEI Mandates

A California federal court has again applied standing doctrine to insulate DEI policies from a faculty challenge, a result similar to one on which we reported last spring from another California district court. In the new case, Johnson v. Watkin, et al., No. 23-cv-000848-KES-CBD, 2024 WL 4264007 (E.D. Cal. Sept. 23, 2024), the court dismissed a professor’s First Amendment challenge to DEI-related rules governing the state’s community colleges. Rejecting the magistrate judge’s recommendations, the district court held that the complaint failed sufficiently to plead injury in fact, and thus dismissed the complaint, without prejudice, for lack of standing. The opinion is available here.

Plaintiff Daymon Johnson is a professor of history at Bakersfield College, a campus within California’s community college system. 2024 WL 4264007, at *5. Johnson is the faculty head of the Renegade Institute for Liberty (RIFL), an organization of faculty “‘dedicated to the pursuit of free speech, open inquiry, and critical thinking’” that opposes school policies aligned with the state’s anti-racism mandate. Id. at *6. Johnson’s complaint asserted pre-enforcement challenges to DEI regulations and two more general statutes that he feared the College would apply against him in violation of the First Amendment due to his dissenting views. Id. at *1.

The DEI Regulations And Johnson’s Fear Of Discipline

California regulations governing state community colleges provide, among other things, that (i) DEI must “guide the administration of all programs;" (ii) personnel must “intentionally practice” anti-racism; (iii) employees “must have or establish proficiency in [DEI]-related performance” to teach in the community college system; (iv) evaluation of employees “must include consideration of an employee’s demonstrated progress, or progress toward, proficiency in [DEI]-related competencies;” and (v) faculty must “employ teaching, learning, and professional practices that reflect [DEI] and anti-racist principles.” Id. at *4-*5. Johnson alleged that he feared enforcement under these regulations, two California statutes allowing for dismissal and suspension for more general underperformance and rule violations, and a policy requiring professional civility and barring aggression, intimidation and related conduct. See id. at *3.

Johnson had not yet faced any discipline but feared the college could take future action against him based on four events, including (i) a prior investigation against him, which ended without the College takin any action, for reposting the Facebook post of a fellow professor and critical race theorist; (ii) termination of another professor for multiple instances of misconduct as well as protected speech such as criticism of certain courses offered by the College and an op-ed that defended the term “Cultural Marxism;” (iii) a December holiday email greeting from the then-president of Bakersfield College asserting that “’communities of color and LGBTQ community . . . do not feel peace on our own campus’” and that the community should “’not allow the discontent or views of a few to supersede what we are required to provide at our college,’” which Johnson perceived as a political attack on RIFL; and (iv) a statement by one of the College’s Trustees at a Board meeting the same month that they should “‘get the bad actors out of the room,’” describing such faculty and staff as “in the ‘five percent that we have to continue to cull,’” which Johnson thought was referring to him and others who share his political views. Id. at *7.

The Three-Prong Standard For Assessing Injury In Fact On A Pre-Enforcement Challenge

To determine whether Johnson had sufficiently alleged injury in fact on his pre-enforcement challenge, the court applied the factors set forth in Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014), which requires that

(1) A plaintiff allege an intention to engage in a course of conduct arguably affected with a constitutional interest, (2) the intended future conduct must be arguably proscribed by the challenged statute, and (3) there must be a credible threat of enforcement.

Id. at *8 (cleaned up).

The Court Holds The Complaint Insufficiently Specific To Allege Injury In Fact

The court held the complaint was insufficiently specific to meet the second and third elements of the Driehaus test.

As to the first element, the court held that many of Johnson’s allegations were insufficiently specific, including that he cannot recommend books with “cultural Marxism” in the title, his intent to engage in social media posts similar to those of his fired colleague, and his refraining “from expressing his political views and freely participating in the intellectual life of the college.” Id. at *11-*12. Other allegations, however, were specific enough to show an intention to engage in speech implicating a constitutional interest, including Johnson’s allegations that he (i) canceled an RIFL event with a guest speaker on cultural Marxism because he feared that he would have to defend the choice of topic and that could lead to his discipline; (ii) has stopped attending the College’s Diversity Advisory Committee meetings because he fears termination “if he voices his ‘concerns about “reverse” racism and deceptive ways the committee was pushing affirmative action;’” and (iii) has refrained from finalizing agreements with speakers for RIFL. Id. at *10, *12.

While the complaint met the first prong of the Driehaus test, however, the same was not true for the second and third prongs. The court concluded that Johnson’s intended future conduct was not in fact prohibited by the two statutes or the civility policy, because his intended statements and actions would not constitute unprofessional conduct or any of the other grounds for discipline, and would not be aggression or harassment under the civility policy. The court also held there was no substantial threat of enforcement. Defendants did not communicate any such threat and the court credited defendants’ litigating position that they did not believe Johnson’s intended future speech would violate either statute. Id. at *13. The past investigation of Johnson was insufficient to create a substantial threat of future enforcement, as was his colleague’s termination, since Johnson was not similarly situated to the terminated professor, who was fired for multiple infractions beyond his political speech. See id. at *14-*17.

Finally, as to the regulations, the court held that only one “arguably imposes an obligation” on Johnson, specifically, the one requiring faculty to “employ . . . practices that reflect [DEI] and anti-racist principles.” Id. at *25. Johnson alleged that almost everything he teaches violates the regulation’s DEI requirements – “not just by failing to advance the [DEI] and anti-racist ideologies but also by criticizing them.” Id. Nonetheless, Johnson’s allegations failed to show that such teachings were proscribed by the regulation according to the court. That was because the mandate to “employ practices” reflecting DEI principles “does not require Johnson to advance, or refrain from speaking, any particular message or to refrain from teaching the things he states he intends to teach.” Id. at *25 (emphasis in original). In other words, the court believed defendants would interpret the mandate to require process, not content, and what Johnson feared was that his content would violate the regulation. The court also held there was no substantial threat of enforcement, given that the DEI regulations had no history of enforcement.