From yesterday's decision by Judge Kirk Sherriff (E.D. Cal.) in Johnson v. Fliger (for more on an earlier phase of the case, see here):
Plaintiff Daymon Johnson, a professor of history at Bakersfield College, brings this pre-enforcement challenge seeking injunctive and declaratory relief to preclude officials of Bakersfield College and the Kern Community College District ("KCCD") from enforcing, as to his intended speech, two provisions of the California Code of Regulations. These provisions would require Johnson to employ "teaching, learning, and professional" practices reflecting diversity, equity, inclusion, and accessibility ("DEIA") and anti-racist principles, require Johnson to "establish proficiency in DEIA-related performance to teach, work, or lead within California community colleges," and require defendants to evaluate Johnson based in part on his proficiency in such DEIA principles….
Johnson alleges that the DEIA regulations compel his speech and discriminate against his viewpoint in violation of the First Amendment. He alleges that he fears either being compelled to express a viewpoint with which he disagrees or being punished if he continues to refuse to express defendants' desired viewpoint or if he expresses his contrary views. Johnson has credibly identified specific speech that he reasonably fears would be proscribed by the DEIA regulations. And as the Ninth Circuit has found, he "has established a 'concrete plan to violate the law' based on his allegations regarding his desired speech and his refusal to express support for [DEIA] principles." Johnson v. Fliger (9th Cir. 2025) (quoting Thomas v. Anchorage Equal Rts. Comm'n, 220 F.3d 1134, 1139 (9th Cir. 2000) (en banc)).
Johnson has established that his intended speech, which reflects his opposition to the DEIA regulations and to the state's DEIA policies, concerns a matter of public concern. To the extent the DEIA regulations proscribe and chill Johnson's intended speech in his teaching or scholarship as a professor, in his work with a "dissident faculty" group on campus that opposes the DEIA regulations, or in his capacity as a private citizen or public academic engaging in extracurricular speech, Johnson has a First Amendment interest in such intended speech. See Demers v. Austin (9th Cir. 2014); Reges v. Cauce (9th Cir. 2025). Defendants have failed to demonstrate "a legitimate administrative interest in suppressing the speech that outweigh[s] the plaintiff's First Amendment rights." …
Johnson has failed to establish a likelihood of success on his challenge to Bakersfield College's requirement that he complete mandatory DEIA training as a requirement to participate on faculty screening committees, as the government may express its views through such employee training, and Johnson fails to show that the training requires him to personally endorse the government's views as his own. Nor does Johnson establish that his official capacity speech as a member of Bakersfield College's Equal Opportunity & Diversity Advisory Committee ("EODAC") is protected speech, as it is government speech and he has not established that it is sufficiently connected to scholarship or teaching. See Sullivan v. Univ. of Washington (9th Cir. 2023) (rejecting argument that faculty members serving on state university's animal care and use committee were entitled to First Amendment protection, because they were "not thereby engaged in 'teaching and academic writing'"). Johnson also fails to establish a likelihood of success on his facial challenge to the DEIA regulations, as the DEIA regulations apply to a range of non-speech conduct and Johnson fails to show that they prohibit a substantial amount of protected speech relative to their plainly legitimate sweep….
