A Uniquely Terrible New DEI Policy

Attacks on faculty rights are frequent in academia, where professors’ words are now policed by illiberal administrators, state legislators, and students. I’ve reported on related controversies in American higher education for more than 20 years. But I’ve never seen a policy that threatens academic freedom or First Amendment rights on a greater scale than what is now unfolding in this country’s largest system of higher education: California’s community colleges.

Roughly 1.9 million students are enrolled in that system. Its 116 colleges admit almost everyone who applies. Students who’ll transfer up to UC Berkeley or Cal Poly San Luis Obispo study alongside others seeking an associate degree or a certificate in fields as wide-ranging as nursing, welding, and law enforcement. And per-unit costs are low, with financial aid for the needy.

All told, these colleges represent the best version of diversity, equity, and inclusion. Any adult can attempt to improve their lot with help from educators and a realistic shot at success. But frustratingly––even tragically––the same system is implementing new DEI rules, mandated by state bureaucrats, that trample on free speech while coercing faculty members on how to teach their subjects, which scholarly conclusions to reach, and even what political positions to advocate. Some faculty members say they feel like they must choose between their job and their conscience.

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This approach exemplifies the very worst of what DEI can mean in higher education, and two lawsuits by faculty members credibly challenge the new regime as a civil-rights violation. The state should abandon the new guidelines and refocus on the proper mission of community colleges: helping students achieve their goals, not forcing faculty to adopt trendy social-justice dogma.

Under the changes to California’s education code, all community-college employees will be evaluated in a way that places “significant emphasis” on “antiracist” and “DEIA competencies.” (The A stands for “accessibility.”) For professors, that means all will be judged, whether in hiring, promotion, or tenure decisions, on their embrace of controversial social-justice concepts as those concepts are understood and defined by state education bureaucrats.

The implementation guidelines that the chancellor’s office published are atrocious. They urge community-college districts to adopt dozens of suggested “competencies and criteria.” Not quite all are objectionable. For example, the state wants faculty to be judged on “the ability and willingness to communicate effectively with people of diverse backgrounds” and whether or not he or she “considers and includes diverse perspectives and opinions.”

But many of the suggested standards are coercive and appear to be unlawful. The guidelines urge, for example, that a professor be deemed competent only if he or she:

A public system of higher education cannot compel faculty members to “promote” or “advocate for” ideas with which they disagree, to “articulate the importance” of approaches they deem overrated, or to describe the impact of something that they see as ineffectual. If you’re a progressive, imagine Governor Ron DeSantis passing a law requiring Florida college professors to be evaluated for hiring and tenure based on whether they promote, advocate for, and articulate the importance of color blindness and the positive impact of anti-communism. That leftists are pushing California’s rules does not make them less authoritarian.

Other criteria urged by the state compel faculty to reach particular intellectual conclusions––for example, only a professor who “acknowledges that cultural and social identities are diverse, fluid, and intersectional” would pass muster. But the nature of identity is widely contested and ripe for future scholarship. What if a psychologist’s research leads her to conclude that although social identities are diverse and intersectional, they are not typically fluid?

Bureaucrats dictating such conclusions to scholars is ruinous to academic freedom. As if to highlight that incompatibility, the state advises in another guidance document, “Take care not to ‘weaponize’ academic freedom … or inflict curricular trauma.” How ominous to regard freely engaging in inquiry as a potential weapon.

Each of California’s 73 community-college districts must decide how to implement the state’s new rules by today. The State Center Community College District has already completed the process. One of the lawsuits seeking to strike down the new approach was filed by professors there.

The Foundation for Individual Rights and Expression represents six plaintiffs––they teach English, philosophy, history, and chemistry––who allege that the new regime violates their First Amendment rights. “These regulations are a totalitarian triple-whammy,” said Daniel Ortner, their attorney, in a press release. “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.”

Said one of the chemistry professors, Bill Blanken, “How am I supposed to incorporate DEI into my classroom instruction? What’s the ‘anti-racist’ perspective on the atomic mass of boron?”

In the other lawsuit, the Institute for Free Speech, a Washington, D.C.-based nonprofit organization, represents Daymon Johnson, a history professor. “Demands that faculty subscribe to and advance a particular creed or political ideology as a condition of maintaining their employment … are inconsistent with the mission of a public college,” the complaint states.

Rejecting those claims, attorneys representing the chancellor’s office counter in legal documents that “the regulations do not restrict the free speech of any employee in their individual capacity, or infringe upon any faculty member’s academic freedom.” In the state’s telling, the guidelines merely set forth a policy objective: that all community-college districts adopt new evaluations that reflect “ideals and principles regarding diversity, equity, inclusion, and accessibility.” The state’s lawyers go on to emphasize that community-college “employment processes” are implemented not directly by the state but “through district policy and collective bargaining.”

It is true that each community-college district must negotiate with local faculty unions to change how professors are evaluated and come into compliance with state law, because how to judge employees is part of local collective-bargaining agreements. But when I asked John Fitzer, a vice president of member rights at the union that represents professors in the State Center district, why the union agreed to new contract provisions that impinge on academic freedom, he replied, “Our institutions are required to adhere to these laws and regulations regardless of personal opinions.” And outside experts I consulted rejected the state’s defense as misleading.

Jeffrey Sachs, a political-science professor at Acadia University and an expert in free speech and academic freedom, who studied the lawsuits, offered this analogy:

Nonpartisan civil-liberties groups are appalled by the new rules. A spokesperson for the ACLU told me that the organization has long championed diversity, equity, and inclusion; anti-racist principles; and progressive social-justice policies, but that at the same time it opposes regulations “that limit academics to teaching only government-endorsed ideas.” The new rules “require instructors to serve as a megaphone for the government’s approved positions,” they emailed. Such viewpoint-based discrimination “is prohibited by the First Amendment and infringes on academic freedom,” the ACLU concluded. “As we litigate bans on inclusive education across the country, we remain on guard against would-be government censors no matter their political stripe.”

At PEN America, a nonprofit that promotes free expression, Jeremy C. Young directs the program opposing educational gag orders, many of which are imposed by Republican legislators. He called the California policy “the very essence of an educational gag order,” and said that the state “does not frame its preferred theories as a guideline or a suggestion, but as a mandate.” He added, “I have defended university diversity-evaluation policies that work to ensure faculty create a welcoming environment for students of diverse backgrounds, but that’s not what this DEIA policy does.”

Why does anyone favor these new rules? Their most well-intentioned proponents believe themselves to be remedying a long-standing failure of community colleges to help students––especially students of color––succeed in attaining their educational goals. And their understanding of what equity requires is shaped by community-college history.

California’s “junior colleges,” as they were then called, began in the 1910s as extensions of high schools. Local boards of trustees, not academic elites, set policy. “That contributed to the rise of vocational education, adult education, evening classes, and other innovations,” George R. Boggs wrote in the 2021 book A College for All Californians: A History of the California Community Colleges.

Many academic elites were adamant that the junior colleges remain upward extensions of high school rather than a rung for climbing up to college. Speaking at his 1930 inauguration as president of the University of California, Robert Sproul noted that the university had long been recognized as “the crown of the public school system.” But lately, he fretted, junior colleges were threatening to destroy “the carefully builded structures of the educational system, to shake loose the topmost pinnacles and reduce all to a lower, less inspiring, and less productive level.” If they became “the beginning of four-year colleges,” they would be “subversive of the best interests of democracy, which must, if it is to survive and prosper, develop an aristocracy of its own begetting, after its own heart, and dedicated to its own service.”

In contrast, after World War II, President Harry Truman convened a national commission on higher education that urged treating colleges as places not solely for future elites but where every citizen might learn. Its 1947 report was as egalitarian in its rhetoric toward college as Sproul was elitist. “We have proclaimed our faith in education as a means of equalizing the conditions of men,” the report states. But, it presciently warned, if educational opportunities are not available to all, even as they become prerequisites to upward mobility, “then education may become the means, not of eliminating race and class distinctions, but of deepening and solidifying them.”

As community colleges expanded, they wound up satisfying both elitists who wanted to avoid expanding the UC system in ways that would reduce its standards and egalitarians who hoped to radically expand access to college. But those competing desires to conserve quality and prestige on one hand and to expand opportunity on the other are still present in California, with its flagship UC system, its second-tier Cal State system, and its open-to-all-high-school-graduates community colleges. There are still fights over whether transferring up ought to be easier and, having done so, how many of one’s credits should count. And within community colleges, the desire to eliminate rather than deepen class and especially race distinctions is properly an animating force.

What’s more, some educators are frustrated to be failing at what they see as a moral imperative. America’s community colleges “serve a disproportionate number of low-income, immigrant, first generation, and ethnic minority students,” and a majority of Hispanic college students, Thomas R. Bailey, Shanna Smith Jaggars, and Davis Jenkins wrote in the 2015 book Redesigning America’s Community Colleges. “Yet most students who enter these colleges never finish.”

In California’s community-college system and the nonprofits that influence its policies, would-be reformers are especially concerned about racial groups that are performing worst. Prior to the coronavirus pandemic, completion rates were roughly 40 percent for Asians, 33 percent for whites, 30 percent for Filipinos, 22 percent for American Indians, 21 percent for Blacks, and 20 percent for Hispanics. “So something needs to be done,” the reformer Estela Bensimon told me. “Some may say, ‘We need to have better high schools.’ Well, yes, maybe. But what we need is better practitioners, better professionals. We need that chemistry professor to be willing to ask himself, ‘Why is it that year after year after year, I lose 75 percent of Latino students in my classroom?’”

Bensimon is a retired professor of higher education at the University of Southern California, where in 1999 she founded the Center for Urban Education. Its focus is “achieving racial equity by partnering with educational systems to change policies and practices.” Its method is instilling “equity-mindedness,” a term that she coined. An equity-minded professor is conscious of their own race and how students perceive it, and tracks, among other things, classroom participation, absences, and homework completion by race to foster awareness of disparities. Upon finding them, he or she does not blame the students or deficits in their home life or prior education but rather takes responsibility for their success, in part by dedicating disproportionate resources to the “minoritized” students whose higher rate of failure confirms their need.

This fall, Bensimon will act as a consultant to help a Fresno community college as it implements the state’s rules. Though she’d have written the implementation guidelines differently, she is heartened by the focus on racial equity at community colleges. She believes faculty have a lot to learn about students of color. “The issue in the California Community Colleges is that the majority of the students are Latino and Black students––white students are the minority––but the faculty is predominantly white and in some ways very old,” she said. “I don’t mean ‘old’ in terms of ageism, but that they have been there a long time, so there is a cultural chasm between the students and faculty.”

More students would successfully transfer, she argued, if their professors “felt more of a responsibility to make it happen for them.” She had yet to study the state’s implementation guidelines closely when we spoke, but she believes that pushing faculty to embrace equity-mindedness need not infringe on academic freedom or the First Amendment, and that the laudable intention of the state’s guidelines is to heighten understanding of how racism is created and how to preside over classrooms that teach anti-racism. “I don’t know why anybody would protest about having to teach or consider anti-racism,” she told me, “particularly in this day and age.”

I know why. If the community-college system defined anti-racism as Bensimon described it to me, I doubt any faculty would be suing over it. “Anti-racist would mean not making inappropriate jokes,” she wrote, “not making fun of accents (yes it happens), not saying that a student’s name is too difficult to pronounce, being cognizant of who is participating, and if minoritized students are not participating, intervening in a caring manner.” So defined, anti-racism is relatively uncontroversial.

But the California Community College system officially adopted a definition of anti-racist that includes widely disputed claims. Citing Ibram X. Kendi, it asserts that an anti-racist understands “racism is pervasive and has been embedded into all societal structures.” It adds, “Persons are either anti-racist or racist. Persons that say they are ‘not a racist’ are in denial of the inequities and racial problems that exist.” Faculty who believe components of that definition to be false naturally feel that mandating it is contrary to academic values. (And surely the law does not permit the state to judge a professor incompetent for saying, “I am not a racist.”)

Bensimon also described how she understands the term anti-racist pedagogy. Its meaning includes “not making assumptions that white and middle-class experience is universal and therefore everyone knows ‘how to do college,’” and “that the instructor uses her/his power (knowledge is power) to facilitate the success of students who have been deprived of the opportunities and experiences that contribute to college success.” She was specific in her examples:

To me, some of Bensimon’s insights are better described in race-neutral terms (even granting that racial identity and culture can be intertwined in hard-to-disentangle ways), because they apply to students of all races whose class or cultural background or status as immigrants informs a lack of familiarity with U.S. higher education, and do not apply to many students of color, who are perfectly comfortable, say, attending office hours. Regardless, her suggestions are concrete, specific, and intelligible enough to add value, even for someone with objections about framing.

The state’s guidelines are vague, abstract, and frequently hard to parse. Another of the state’s suggested criteria says that a professor who’s sufficiently anti-racist “uses data to uncover inequitable outcomes measured through equity-mindedness that calls out racialized patterns in the data, policies, and practices to inform strategies to improve equitable student outcomes and success.” While diagramming that sentence to parse its meaning, I suffered curricular trauma.

Even Bensimon, who praised Chancellor Sonya Christian for the aggressive attempt to focus on equity, shared some trepidation about how the state would implement its push. In her experience, equity-mindedness cannot be imposed; to improve as a professor, one must recognize its value and understand its theoretical underpinnings in critical race theory. “Unless you internalize and you learn the theory of that intervention, it will not work,” she said, offering a term that describes what happens when implementation goes poorly: lethal mutations. About the state guidelines, she said, “the people who are involved in writing these things up may not be fully racially literate. They’re taking things from other places, and they don’t always have a full understanding. And it also becomes very bureaucratized. So when I read the materials, I thought, This is not going to necessarily help colleges figure out how to do it.”

Before the community-college system became focused on DEI and anti-racism, it had a set of specific goals, outlined in a report called Vision for Success. The goals included: Raise the number of students who complete their studies by 20 percent. Increase successful transfers by 35 percent. Close racial disparities in graduation rates within 10 years. If those are your goals as an administrator, success is measurable, and you can be shown to fail.

Then, in 2019 and 2020, a swelling of DEI ideology occurred in community colleges, as in so many other institutions. A more recent report now competes for the attention of reformers. It includes a lot of abstract, high-concept, and difficult-to-parse assertions of intent, such as “the Task Force agreed there has to be a moral value placed on systemwide diversity efforts that represent a social justice perspective.” Who can reliably measure whether an administrator placed a moral value on efforts representing a social-justice perspective?

At the most basic level, the system is proceeding as if a DEIA mindset will improve completion rates and close racial disparities. No community-college system has empirically shown that to be true. It is a theory. Though the stakes are high, its correctness is being assumed, even though many professors doubt its efficacy and are unlikely to comply absent coercion and surveillance.

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An illustration of the consequences can be found in a comparison of the old and new rules for evaluating faculty, as described in one of the faculty lawsuits against the rules. “Under the previous faculty contract, faculty were evaluated for their ‘demonstrated ability to successfully teach students from cultures other than one’s own,’” the FIRE lawsuit notes. “Under the DEIA Rules, however, they are now evaluated on their ‘demonstration of, or progress toward, diversity, equity, inclusion, and accessibility (DEIA) related competencies and teaching and learning practices that reflect DEIA and anti-racist principles.’” Before, professors were judged on whether they “successfully teach students.” Now they’ll be judged on whether they show progress toward abstract competencies that are theorized to help them successfully teach students.

That is a degradation, and Chancellor Christian should reverse course. Many First Amendment experts believe that the new guidelines will be found to violate the civil rights of faculty members. And even if they are upheld, their language and implementation suggestions are so incompetently drafted that even a leading proponent of equity-mindedness can’t quite endorse them as written. Whatever one thinks of social-justice ideology, there are far stronger versions of it.

This is the worst version of DEI.