Lawsuits Challenge California Community Colleges System Over DEIA in Evaluations and Tenure
By Luke Lara, FA Ombudsperson
The Board of Governors (BOG) of the California Community Colleges recently approved and chaptered updates to regulations around DEIA Evaluation and Tenure Review of District Employees, which took effect on April 16, 2023.
The California Community College Chancellor’s Office (CCCCO) subsequently sent a guidance memo on May 5, 2023, giving a directive to the system’s districts and colleges to implement the new regulations within 180 days of the effective date. Both the Academic Senate and Faculty unions have an interest in faculty evaluation processes. The FA would be required to negotiate any changes to current evaluation processes for full-time faculty members.
Almost as quickly as the regulations were chaptered, several lawsuits were filed against the BOG and CCCCO by individuals, groups of faculty, and unions for reasons including first amendment rights, academic freedom, potentially punitive results for those that don’t comply, and concerns about the process for developing these regulations in the first place. Most specifically, the CCCCO’s mandate for specific requirements in evaluation violates the faculty union’s right – and district’s obligation – that faculty evaluation procedures be negotiated as part of the collective bargaining process.
Several of these lawsuits have been supported by national advocacy groups, such as the Foundation for Individual Rights and Expression (FIRE) and the Institute for Free Speech.
The latest development is that a California judge has temporarily halted the enforcement of the new DEIA regulations. The decision to grant an injunction came in response to a lawsuit filed by Daymon Johnson, a history professor, against Bakersfield College and Kern Community College District leaders. His argument was that he and other professors would be penalized for expressing conservative views under these regulations and that would violate their constitutional rights. The judge acknowledged the importance of DEIA but sided with Johnson, indicating that new regulations may infringe on freedom of speech in the academic arena.
The FA and the Academic Senate have historically valued DEIA in our evaluation processes. Prior to the CCCCO developing the new regulations, Article H: Evaluation and Tenure Review of our District/FA collective bargaining agreement, has reflected our commitment to DEIA through multiple evaluation criteria (Clause H.1.4.) and required elements of the self-study (Clause H.4.6 and Clause H.5.5). We contend that our current evaluation requirements meet and/or exceed the evaluation standards established in the updated regulations. Of course, any changes to our contract related to Article H, clause H.1.4: Criteria for Evaluation, would be developed in consultation with Academic Senate leadership, the Tenure Review and Evaluation Committee leadership, and the Faculty Assembly Council, and then ultimately negotiated with the District.
For now, we continue to follow our contract and what is outlined in Article H. While there is an injunction, the new regulations are no longer in effect until the lawsuit is determined. Since there are several lawsuits, it may take several years before any definitive legal decision is made. We’ll keep you posted on any new developments.