SACRAMENTO - A group of community college professors can't continue their legal challenge to California's education DEI rules, a federal judge has ruled, finding the teachers can't yet show how they and their careers might be harmed by state "guidance" incorporated into local rules and faculty contracts requiring them to demonstrate their commitment to "anti-racism" and incorporate "anti-racism" into classes, lessons and assignments, no matter the subject.
On Jan. 27, U.S. District Judge Kirk E. Sherriff, of the U.S. District Court for the Eastern District of California, dismissed the lawsuit brought on behalf of four instructors at two community colleges near Fresno, asserting the state's DEI regulations and their interpretation by local community colleges and faculty unions violated their constitutional rights.
Sherriff, a former federal prosecutor, was appointed to the federal bench in 2024 by former President Joe Biden.
The lawsuit was dismissed without prejudice, meaning plaintiffs will have the opportunity to attempt to revise their complaint to address the shortcomings identified by the judge.
The lawsuit was filed in 2023 by the organization known as FIRE, or the Foundation for Individual Rights and Expression. FIRE filed the suit in Sacramento federal court on behalf of named plaintiffs Loren Palsgaard, David Richardson and Linda de Morales, who all are faculty at Madera Community College; and Bill Blanken, an instructor at Reedley College.
The lawsuit centered on regulations handed down by the board overseeing California's state community college system, directing community colleges and districts in the state to take steps to incorporate principles of so-called "diversity, equity, inclusion and accessibility," or DEIA, into their academic programs and classes.
Specifically, the regulations direct community colleges and districts to set rules and policies that would all but require instructors to incorporate DEIA into their classrooms and instruction, no matter the subject.
Particularly, the lawsuit took aim at state regulations requiring community colleges and districts to evaluate faculty, in part, on their demonstrated commitment to DEIA.
According to the complaint, those state regulations resulted in local DEIA rules and in those principles to be incorporated into faculty contracts within the State Center Community College District, which included both Madera and Reedley, as well as other schools in and around Fresno.
In their complaint, FIRE and the professor plaintiffs said the DEIA state regulations, as expressed by the state and interpreted at the local level, have stifled their ability to teach their classes for fear of running afoul of those whose evaluations could lead to disciplinary action or even loss of their jobs or careers.
Instructors of English and history noted the DEIA regulations resulted in them paring back their syllabi to avoid works, such as those by Martin Luther King Jr., Victor Davis Hanson and Malcolm X, which some students or other professors could fault for being insufficiently "anti-racist," if not for upholding so-called "systemic racism."
Others, such as those who teach chemistry, said the regulations would hamper their ability to teach physical sciences, to which principles of diversity, equity and inclusion are irrelevant.
FIRE noted the DEIA demands could also impact grading processes, as grading based solely on merit, without accounting for race or other protected traits or identities, could be interpreted by DEIA enforcers as promoting "white privilege under the guise of standards."
FIRE noted California has issued a glossary of terms to accompany its regulations which state that "persons that say they are ‘not a racist’ are in denial" and further state 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.'”
The plaintiffs are represented by attorney Daniel Ortner, of FIRE.
At the time the lawsuit was filed, Ortner said: “These regulations are a totalitarian triple-whammy. The government is forcing professors to teach and preach a politicized viewpoint they do not share, imposing incomprehensible guidelines, and threatening to punish professors when they cross an arbitrary, indiscernible line.”
After nearly 18 months of proceedings in the case, Judge Sherriff agreed with the state and the community college defendants that the plaintiffs shouldn't be allowed to continue with their lawsuit challenging the DEIA rules because no one has yet attempted to enforce the DEIA rules against them.
Sherriff said they can't sue the state because the state has asserted the state can't enforce the rules, as the state regulations require action from community colleges and districts themselves, not individual instructors.
And Sherriff said the local defendants also can't be sued because they have asserted the rules don't specify how instructors must teach their classes. Further, the judge said the faculty contract, which requires instructors to be evaluated in part on their commitment to such DEIA principles, can't be challenged because the contract doesn't explicitly cite the state regulations as the basis for its own DEIA review requirements.
The judge also rejected the instructors' assertion the rules have already "chilled" speech in the classroom, by forcing instructors to alter lesson plans and assignments for fear of violating some new and moving standard that threatens their careers.
"Plaintiffs have failed to show a reasonably likelihood (sic) that the State Defendants will enforce the regulations against them for their intended conduct," Sherriff wrote. "To the extent that Plaintiffs have self-censored, such 'injury' is self-inflicted and does not constitute an injury in fact that can support standing."
As such, the judge said the plaintiffs lack legal standing to sue to challenge the rules, at least until and unless someone - either the state, the college or other faculty, under the contract - take some kind of action against them in the name of the DEIA regulations and rules.
In response to a request for comment from The Record, a spokesperson for FIRE said: "We’re still in the process of reviewing the decision and discussing with our clients and so do not have a comment yet at this time."