Partner Mark Meyerhoff, Senior Counsel David Urban, and Associate Morgan Johnson Convince Federal District Court to Dismiss First Amendment Challenge to DEIA Regulations and Faculty Collective Bargaining Agreement

Plaintiffs are four community college professors (1 English, 1 History, and 2 Chemistry) who filed suit against District officials and the California Community Colleges Chancellor in federal court. They alleged the District’s incorporation of the statewide regulations that created a new Diversity, Equity, Inclusion, and Accessibility (“DEIA”) component into faculty evaluations in the Full-time Faculty Collective Bargaining Agreement (“CBA”) violated their right to free speech under the First Amendment. Plaintiffs contended the new DEIA evaluation component compelled them to adopt and advocate the District’s position on DEIA issues that they disagree with. They alleged if they failed to satisfy the DEIA evaluation component, the District would discipline them and potentially terminate their employment. Plaintiffs relied on several guidance documents that they call “Implementation Guidelines” to support their challenge to the DEIA Regulations.

Specifically, Plaintiffs argued the new DEIA Regulations and Faculty CBA:

• Constituted viewpoint discrimination because they favored “race-conscious and intersectional” viewpoints over the “color[-blind] and equality” viewpoints Plaintiffs embraced;
• Compelled speech by forcing faculty members to “endorse the state’s perspective regarding DEIA against their own deeply held philosophical, moral, and religious views;”
• Constituted a prior restraint on speech by restricting faculty member speech on DEIA principles and barring them from promoting contrary perspectives in their class curriculums;
• Were constitutionally overbroad because the regulations restrict or prohibit teaching from “many great works of American literature, philosophy, law, or politics” because those works may go against DEIA ideals; and
• Were constitutionally vague because the regulations do not adequately define DEIA terms and principles and could be interpreted differently by different audiences.

Plaintiffs also sought declaratory relief that the DEIA Regulations (and the Faculty CBA that incorporated them) were unconstitutional and injunctive relief to prohibit their enforcement against faculty.

None of the Plaintiffs had ever been disciplined or threatened with discipline, or had any other adverse actions taken against them because of the DEIA evaluation component they challenged.

The District defendants and State Chancellor moved to dismiss Plaintiffs’ complaint, arguing first and foremost that Plaintiffs lacked standing to challenge the DEIA Regulations and Faculty CBA. The District defendants pointed out that almost all of Plaintiffs’ complaints about the DEIA Regulations and the Faculty CBA derived not from those documents, but from the non-binding guidance documents Plaintiffs attached to their complaint that discussed various topics and teaching strategies related to DEIA in the education context. The District defendants further argued Plaintiffs could not establish any constitutional violations of the First Amendment even if they could establish standing.

The trial court never reached the substantive issues Plaintiffs raised because it determined Plaintiffs lacked standing to bring their pre-enforcement claims. The trial court ruled the DEIA Regulations and Faculty CBA did not incorporate or cite to the non-binding guidance documents that formed the foundation of Plaintiffs’ claims. The trial court noted that the Faculty CBA’s language did not preclude Plaintiffs from voicing different beliefs regarding DEIA principles. Thus, Plaintiffs failed to establish an adequate injury in fact to support standing to bring a pre-enforcement challenge to the DEIA Regulations and Faculty CBA. While the trial court dismissed Plaintiffs’ claim without prejudice, it specifically noted that a lack of standing meant the court was powerless to reach the merits of their claims and closed the case.