The ‘Stop WOKE Act’ was big news. California DEI should have been too.

The case of California Community Colleges’ DEI rules were just as bad for free speech and academic freedom, but too few people know about it.

Two of FIRE's plaintiffs: Reedley College professor Bill Blanken & Madera Community College professor Linda De Morales

A note from Greg:

Three weeks ago, FIRE's First Amendment challenge against the California Community Colleges system and a community college district came to a close. We took action against a system rule that required faculty members to employ DEI concepts in their teaching. The system and the district effectively promised the court they wouldn't enforce the rule to interfere with faculty teaching and speech, and the court accepted it, ending the case. FIRE got what we wanted for our clients because the system and district backed off — but we'll be watching like a hawk to make sure they stick to their promise.

Here's the bigger picture: The challenge should have been front page news. Indeed, every newspaper and cable TV station in the country should have been aware that, in California schools, there were policies requiring professors to affirm ideological concepts and beliefs even if they fundamentally oppose them. This is an insane violation of academic freedom. Meanwhile, Florida's Stop Woke Act, which we are also battling in court and which is also laughably unconstitutional, rightly got national coverage practically everywhere. But the imbalance is a problem.

The following article is written by FIRE's own Daniel Ortner, who worked passionately on the case, to help correct that imbalance.

And if you find that California schools actually are enforcing any of these ideological requirements, contact FIRE right away.

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Readers may remember that Florida’s “Stop WOKE Act,” signed into law by Governor Ron DeSantis in April of 2022, caused significant controversy. The law prohibited professors from teaching about specific “concepts,” such as anti-racism, or advancing the idea that merit or colorblindness are racist. Readers will likely also remember FIRE’s lawsuit against the “Stop WOKE Act,” where we went to court on behalf of a professor, students, and a student organization to defend academic freedom. We won (though Florida appealed our victory to the Eleventh Circuit). The court ruled that Florida’s law was “positively dystopian,” and even invoked George Orwell to drive home the notion that if “liberty means anything at all, it means the right to tell people what they do not want to hear.”

That was exactly right.

But a California rule from that same year, which is in some ways the mirror image of the “Stop WOKE Act,” has wrongly gotten far less attention.

In 2022, the California Community Colleges system adopted rules that add “diversity, equity, inclusion, and accessibility standards” to “the evaluation and tenure review of” more than 55,000 professors across the state of California. These new regulations required faculty members to “employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles,” and mandated that they “promote and incorporate culturally affirming DEIA and anti-racist principles.”

When these regulations were proposed, we warned that they would require faculty members to affirm certain perspectives on disputed political and ideological issues, and to embed those perspectives in their academic activities.

Guidance documents published by the chancellor’s office appeared to confirm those fears. For instance, the chancellor’s proposed criteria required professors to “acknowledge” that “cultural and social identities are diverse, fluid, and intersectional.” Meanwhile, a glossary of terms released by the state declared that “color-blindness” — or the belief that “the best way to end prejudice and discrimination is by treating individuals as equally as possible, without regard to race, culture, or ethnicity” — is itself a problem because it “perpetuates existing racial inequities and denies systematic racism.” Even a professor saying something as benign as “I grade my class based on merit” was suspect, according to the glossary, because the concept of merit “is embedded in the ideology of Whiteness,” “upholds race-based structural inequality,” and “protects White privilege.”

Most chillingly of all, the state’s model framework warned professors not to “‘weaponize’ academic freedom” to “inflict curricular trauma on our students.”

Whereas Florida’s “Stop WOKE Act,” unconstitutionally restricted teaching or discussion of certain concepts or ideas, California Community College’s regulations appeared to not only ban anti-DEIA viewpoints, but also unconstitutionally compel professors to endorse the state’s preferred viewpoints — and to affirm them even if they disagreed or found them irrelevant to the course material.

In the face of this analogous and similarly “positively dystopian” threat to free speech and academic freedom, FIRE sued. We did so on behalf of six California Community College professors whose disciplines ranged from history to English to chemistry. Despite their different fields, these professors were united by the threat of punishment the new DEIA rules could inflict upon them for simply doing their jobs. Our clients were afraid that, under these new rules, if they did things like assign Martin Luther King Jr.’s “Letter from Birmingham Jail,” encourage classroom debate on DEIA-related issues, or advocate for a colorblind approach to race, they could face discipline or even termination.

When forced to defend their regulations and contract in court, however, the California state chancellor and community college district backpeddled with remarkable speed. The chancellor’s office “disavowed any intent or ability to take any action against Plaintiffs” for their classroom teaching, and the district likewise confirmed that none of the plaintiffs’ “proposed future actions” for their courses violate the rules or the faculty contract in question. It added that plaintiffs are not “prohibited from presenting” their “viewpoints or perspectives in the classrooms” and will not “be disciplined, terminated, or otherwise punished for doing so.” Rather than altering their teaching, the district said that all the plaintiffs needed to do to comply was adopt viewpoint-neutral practices like anonymous grading or flexible office hours.

In other words, the chancellor’s office and the district assured the court that they never intended or planned to enforce their regulations in order to control what professors teach in the classroom, or to punish dissent in the way we and our clients feared.

Relying on these assurances, U.S. District Judge Kirk E. Sherriff held that “[t]he DEI Recommendations … do not impose obligations on Plaintiffs” and do “not mandate what professors teach or how any such DEIA principles should be implemented.” Similarly, Sherriff held that there is nothing “in the Faculty Contract, or in any other [district] requirement, mandating what professors teach or how any DEIA principles should be implemented.” Nor, he continued, do these documents “preclude Plaintiffs from voicing differing beliefs regarding DEIA principles” including “continu[ing] to share their criticism of DEIA and anti-racism principles in their evaluations and otherwise.”

As a result of this, our case was dismissed. However, we are hopeful this decision will still have a positive impact. For one thing, it significantly limits the state’s ability to use its DEIA rules to demand ideological conformity, and they’ve now said themselves in court that they have no intention of doing so — a claim we will hold them to. As of now, California professors are free to teach both sides of the debate about DEIA, or to ignore the topic altogether in their classrooms. That’s academic freedom and free speech, and whether it’s in California or in Florida, that’s what FIRE has consistently fought for.

Unfortunately, without a concrete decision on the merits of the case, this may not be the end of the matter. Even though the court has ruled that they have no legal force over speech in the classroom, California Community Colleges’ DEIA regulations remain on the books — meaning overzealous districts in the state could still attempt to apply them. Because of this, professors may still feel immense pressure to either endorse DEIA or anti-racist concepts, or to refrain from voicing contrary sentiments. That’s why FIRE will be keeping a close eye on the situation and taking the necessary action to protect free speech and academic freedom in California, Florida, and beyond.

If you are a community college professor that finds his school enforcing the DEIA regulations to control what you can teach in the classroom or to silence debate about DEIA issues, we urge you to contact FIRE right away.

SHOT FOR THE ROAD

Well, folks, unfortunately there is more concerning news out of my alma mater.

Yesterday at Stanford University, protestors hijacked a debate on the merits of a potential wealth tax held between UC Berkeley Professor Emmanuel Saez, and former Treasury Secretary and Harvard president Lawrence Summers (a member of FIRE’s advisory council). Just as Summers was to begin his remarks, protestors began shouting over him, throwing fake money in the air, calling him a “capitalist who sold our country out,” and blaming him for enabling the “corporate oligarchy which has caused the rise of Elon Musk,” among other barbs and accusations.

Oh, and by the way, the name of the class where this debate was meant to take place is called “Democracy and Disagreement,” and its purpose is to “model civic disagreement.” If this were a movie to television script, that part would be nixed for being too on the nose.

You’ll remember that something similar happened at Stanford last year with 5th Circuit Judge Stuart Kyle Duncan, although in this case Stanford claims the disruptors were not students. Another important (and welcome!) difference between this incident and the one with Judge Duncan is that members of the audience, presumably students, actually turned on the protestors, shouting "let him speak!"

Regardless, if you’ve been following my commentary on this stuff recently, you’ll know my position is that administrators have actually been not just allowing these disruptions and shoutdowns, but actively facilitating them. At the very least, they have been effectively incentivizing them by refusing to punish students who behave this way, granting them even more power on what actually gets to be said on campus in the process.

And as I’ve said before, every single time one of these incidents happens:

• There needs to be an independent investigation.

• We need to find out whether or not administrators did anything to stop the disruption or cancellation. If they didn’t, they should be punished.

• We need to find out if they did anything to facilitate or encourage a disruption or cancellation on campus. If they did, they should be fired.

This would not only begin to cut down on the overwhelming problem of administrative bloat, but also eliminate administrators who have become an actual threat to freedom of speech and academic freedom on campus.