[00:00:01] Speaker 05:
Good morning.

[00:00:02] Speaker 00:
Good morning, Your Honors.

[00:00:03] Speaker 00:
May it please the Court.

[00:00:04] Speaker 00:
I'm Alan Gura, Institute for Free Speech.

[00:00:07] Speaker 00:
I represent Professor Damon Johnson, and I would like to reserve four minutes for a bottle.

[00:00:12] Speaker 00:
Okay.

[00:00:13] Speaker 00:
Your Honors, perhaps the best way to approach this case is to see that it's really two separate cases, each of which can stand on its own, but with one overlapping theme.

[00:00:23] Speaker 00:
The case that Professor Johnson first brought in the original complaint centered on the district's unusual application of the education code and

[00:00:31] Speaker 00:
its civility policy to punish dissenting viewpoints.

[00:00:35] Speaker 00:
Johnson soon amended his complaints to add what is essentially a second-related case when the state's new DEIA regulations and the chancellor's associated competencies and criteria began impacting him.

[00:00:47] Speaker 00:
So while the situation at Bakersfield College was already intolerable and warranted injunctive relief before the advent of the DEI regulations and the chancellor's competencies and criteria, those items added essentially a new dimension

[00:01:01] Speaker 00:
to the same basic problem.

[00:01:02] Speaker 04:
You agree that the DEI regulations require the community college district to promulgate certain policies, but the college district hasn't done so, right?

[00:01:11] Speaker 00:
They have not done so, that's correct, Your Honor.

[00:01:13] Speaker 04:
However... So why shouldn't you have to wait until that happens so we can know the full scope of what they're doing and evaluate whether it's violating any laws?

[00:01:24] Speaker 00:
For several reasons.

[00:01:25] Speaker 00:
The first reason is, Your Honor, under Section 530602B, they are in the absence of

[00:01:31] Speaker 00:
their locally developed policies.

[00:01:33] Speaker 00:
And by the way, we found out, and it's cited in our brief, that one of the reasons that they were slow in promulgating their local policies is because they perceived Magister Judge Baker's decision in this case as suggesting they shouldn't do that.

[00:01:47] Speaker 00:
But in any event, they are required to apply either their local policies or the Chancellor's... Point the specific section that requires that, please.

[00:01:57] Speaker 00:
Okay, so I believe it's section...

[00:02:00] Speaker 00:
53602B says that they have to use, there are two sections, Your Honor.

[00:02:07] Speaker 00:
The overarching section is, if you first go to 53602C, you'll see that districts shall include DEIA competencies and criteria as a minimum standard for evaluating the performance of all employees, and then subsection four,

[00:02:24] Speaker 04:
It goes on to say they should place significant emphasis on... But look at A, it says district governing board shall adopt policies and... That's right.

[00:02:37] Speaker 04:
You're saying that they haven't adopted those policies and similarly with C, they're supposed to adopt these policies to then advance these principles and they haven't done that yet.

[00:02:56] Speaker 04:
That's my issue with 53602.

[00:03:01] Speaker 04:
Is there another section?

[00:03:04] Speaker 00:
There are other sections, Your Honor, and it's in our brief, I believe.

[00:03:07] Speaker 00:
I could find that.

[00:03:08] Speaker 00:
I apologize if I have that right-hand-y butt.

[00:03:11] Speaker 00:
In the absence of their local policies, they are still applying the Chancellor's competencies and criteria, and you still have the problem

[00:03:21] Speaker 04:
of 53605 which... But point me to the section that says that in the absence of the community college district not promulgating its own policies implementing the chancellor's criteria that the chancellor's criteria has to apply.

[00:03:36] Speaker 04:
I didn't see that, but I could have missed it, so.

[00:03:39] Speaker 00:
Your Honor, it doesn't use the language, like, in the absence of, I believe it uses the word, the disjunctive word, or, and it's definitely... Right, but that, okay, but that is 53602A, and this is what it says.

[00:03:51] Speaker 04:
District governing boards shall adopt policies for the evaluation of employee performance including tenure reviews that requires demonstrated or progress toward proficiency in the locally developed DEI competencies or those published by the chancellor pursuant to section 53601.

[00:04:10] Speaker 00:
That's right.

[00:04:10] Speaker 04:
So that still says the district governing board shall adopt policies that promote either the locally developed DEI competencies or the chancellors.

[00:04:25] Speaker 04:
The problem is it still starts with the district governing board shall adopt policies.

[00:04:30] Speaker 04:
And if that hasn't happened, I'm not sure how A gets triggered.

[00:04:35] Speaker 00:
The way we read it is that it's not optional for them.

[00:04:39] Speaker 00:
They can't simply refuse to issue any policy and then ignore Title V of the California Code of Regulations.

[00:04:46] Speaker 00:
They have to, they shall apply DEI standards in evaluating it.

[00:04:54] Speaker 00:
It's stressed that this has to be something that is amenable.

[00:04:56] Speaker 04:
Right, but if it hasn't happened, what policies are you challenging?

[00:04:59] Speaker 04:
Because they haven't implemented them yet.

[00:05:03] Speaker 00:
they are going to be following the chancellor's competencies and criteria because that is, you know, if they don't get around to issuing their own policies, it's an or, they should follow the chancellor's competencies and criteria.

[00:05:15] Speaker 00:
And in any event, Professor Johnson does not have any option in terms of 53-605, which commands him to teach this ideology.

[00:05:26] Speaker 00:
And if he doesn't do so, then what he's going to find out in his next performance review, which is going to be next year, is that,

[00:05:32] Speaker 00:
They're going to apply the education code and say that under subsection F of 8233, I mean of 87732F, that he didn't follow a regulation that's promulgated by the governors and he could find himself out of a job.

[00:05:48] Speaker 00:
It is not optional.

[00:05:49] Speaker 04:
So what if I agree with you on 53605 on the faculty members shall employ teaching practices that reflect DEI and anti-racist principles in terms of standing, but I'm asking you about these other regulations where there's been no policy to implement them.

[00:06:09] Speaker 04:
And I'm looking at the definitions for the regs, and it defines diversity as also based on religion,

[00:06:18] Speaker 04:
on marital status, on mental and physical ability.

[00:06:22] Speaker 04:
There may be some implementations of these policies that Mr. Johnson might agree with.

[00:06:32] Speaker 04:
Might even be lawful, correct?

[00:06:33] Speaker 04:
But you're asking us that they should be enjoined, even though they haven't been enacted yet, and they could be lawful, and Mr. Johnson may actually approve of some of them.

[00:06:41] Speaker 00:
There's nothing lawful, and Mr. Johnson does not approve of anything related to DEIA and anti-racist principles, which is

[00:06:48] Speaker 00:
It starts with the command that he must shall employ teaching, learning, and professional practices that reflect DEIA and anti-racist principles.

[00:06:59] Speaker 00:
Professor Johnson's understanding of DEIA and anti-racist principles, and I believe this is the

[00:07:04] Speaker 00:
what the general literature describes is not traditional sort of, you know, non-discrimination requirements that we've had, you know, starting largely in the 1960s with the various laws that have been promulgated along those lines.

[00:07:17] Speaker 00:
This is a particular ideology that's a little bit more recent.

[00:07:21] Speaker 00:
It's defined extensively in this accompanying glossary that the state has put out.

[00:07:27] Speaker 00:
And this is a very different thing.

[00:07:29] Speaker 00:
This is about understanding

[00:07:31] Speaker 00:
in acknowledging that everything is racist, that racism permeates every single system or structure or law.

[00:07:38] Speaker 00:
He is required to identify this supposed racism.

[00:07:41] Speaker 00:
He's supposed to confess his own sins, and having been a racist, he does not want to do that.

[00:07:46] Speaker 04:
He's supposed to... Let me ask you, you didn't seek a preliminary injunction in joining enforcement of the DEI competencies and criteria of the chancellor.

[00:07:55] Speaker 04:
Are you challenging those now on appeal?

[00:07:59] Speaker 00:
I believe that we are challenging the enforcement of- But you didn't seek a preliminary injunction to enjoin those.

[00:08:16] Speaker 00:
We do seek, if I'm looking at YAR 98, which is the notice of preliminary injunction.

[00:08:25] Speaker 00:
You're right, Your Honor.

[00:08:26] Speaker 00:
It does not list the competition criteria specifically.

[00:08:29] Speaker 00:
However, the competition criteria are a way of understanding those regulations, which we are seeking an injunction against.

[00:08:38] Speaker 05:
I have a bit of another issue with you.

[00:08:41] Speaker 05:
So your time's going down, but I want to raise that the district court dismissed your complaint with leave to amend.

[00:08:50] Speaker 05:
And so it seems like you want to have your cake and eat it on some level because putting aside the issue of whether the district court properly dismissed your first amended complaint for lack of standing, could you allege additional facts in an amended complaint that would cure the deficiencies identified by the district court?

[00:09:10] Speaker 05:
In other words, if you, in other words, could you file a second amended complaint that remedies the issues the district court allowed

[00:09:20] Speaker 05:
And I'm looking at the cases that you cited that you didn't file an amended complaint.

[00:09:26] Speaker 05:
I don't know why you didn't, but I'm having trouble, but then you're asking us to exercise pendant appellate jurisdiction.

[00:09:35] Speaker 05:
And I don't see any cases where that's happening, where the order was dismissing with leave to amend.

[00:09:43] Speaker 05:
So you're wanting sort of this special remedy here.

[00:09:47] Speaker 05:
But you could have just amended.

[00:09:48] Speaker 05:
Or you could have gone back to court and you should have said, I'm not going to enter a final judgment here.

[00:09:54] Speaker 05:
But we have to go through a lot of hoops to get to what you want to talk about.

[00:09:59] Speaker 00:
No, Your Honor, first of all, in Baldwin v. Sebelius, the district court dismissed a complaint with leave to amend.

[00:10:06] Speaker 00:
and simultaneously dismissed a preliminary injunction motion.

[00:10:09] Speaker 00:
Lack of standing was the common ground for both rulings, and there was a pending jurisdiction.

[00:10:15] Speaker 00:
In that case, that is identical to the situation we have here, Your Honor.

[00:10:19] Speaker 00:
We don't believe that there are any deficiencies.

[00:10:22] Speaker 00:
in the complaint.

[00:10:22] Speaker 00:
These allegations are highly specific.

[00:10:24] Speaker 00:
I know that Your Honor see a lot of cases.

[00:10:26] Speaker 05:
But you could have just gone in and you could have said, hey, we're not going to amend.

[00:10:30] Speaker 05:
Make it a final judgment.

[00:10:32] Speaker 05:
I'm appealing right now.

[00:10:33] Speaker 00:
Because I can't guess, Your Honors, what an appellate court might say.

[00:10:37] Speaker 00:
If I'm wrong, and this court wants to identify some specific deficiency, if the panel were to issue an opinion and says, oh, this is the type of fact that's missing, and if only you were to say, you know, X, Y, and Z... But you kind of want us to give an advisory opinion.

[00:10:52] Speaker 00:
No, Your Honor, I'd like to have...for my client to get relief.

[00:10:54] Speaker 00:
The way this case has been handled has been very unusual relative to what we typically would expect of a First Amendment preliminary injunction case.

[00:11:01] Speaker 00:
The...if Professor Johnson doesn't have standing, I don't know who has standing in the Ninth Circuit.

[00:11:06] Speaker 00:
He has...

[00:11:07] Speaker 00:
807 paragraph blow-by-blow chapter and verse detailed complaints showing

[00:11:13] Speaker 00:
exactly the type of speech that he is being chilled from exercising.

[00:11:17] Speaker 00:
It is speech that is identical or substantially similar to speech that's previously been the subject of discipline.

[00:11:23] Speaker 00:
He's got a mandatory regulation.

[00:11:25] Speaker 04:
And he's not been disciplined.

[00:11:26] Speaker 04:
In fact, the one investigation actually absolved him of any violation.

[00:11:31] Speaker 00:
Well, the process is the contrary.

[00:11:32] Speaker 00:
The investigation threatened him with additional investigations if another professor dislikes his Facebook postings about politics.

[00:11:39] Speaker 04:
All of the things that he said he did was reviewed and he was found not to be in violation.

[00:11:45] Speaker 04:
You agree with that, right?

[00:11:47] Speaker 04:
So I guess, you know, my... Your Honor, we don't live in a country... So it's not that he didn't have... He could have standing, right?

[00:11:56] Speaker 04:
He could wait until these policies are actually promulgated.

[00:12:00] Speaker 04:
He could see if they're applied or threatened to be enforced against him and then

[00:12:05] Speaker 04:
he could sue again.

[00:12:06] Speaker 00:
He is chilled today because he is mandated to teach things that he disagrees with.

[00:12:11] Speaker 00:
He is going to be evaluated based on his self-actualization and promotion of this particular ideology.

[00:12:18] Speaker 00:
You have the defense coming in saying, there's no such thing really as academic freedom.

[00:12:22] Speaker 00:
It's a collective right of the faculty to determine which opinions are going to be promulgated.

[00:12:27] Speaker 00:
And he's got a factual record where they fired somebody because they misattributed his

[00:12:34] Speaker 00:
Facebook postings to that fired individual.

[00:12:37] Speaker 00:
Let me say that if Judge Beatty wants to ask a question.

[00:12:39] Speaker 03:
I do want to ask you a question.

[00:12:40] Speaker 03:
So standing is not dispensed in gross.

[00:12:45] Speaker 03:
So if we parse through all of these regulations, the competencies, the statutes, the policies, and we were to conclude that your client has standing based on some but not others, and remand it to the district court, where is the harm to your client?

[00:13:01] Speaker 00:
The harm is that if this Court does not actually direct the entry of a preliminary injunction, justice delayed is justice denied.

[00:13:11] Speaker 00:
We have a preliminary injunction motion that was filed in 2023.

[00:13:16] Speaker 00:
It is today 25.

[00:13:17] Speaker 00:
His performance evaluation is going to be spring of 26.

[00:13:21] Speaker 03:
But that's a different issue.

[00:13:22] Speaker 03:
We could remand it for the district court to consider that.

[00:13:27] Speaker 03:
The district court didn't grant the injunction because it concluded that your client didn't have standing.

[00:13:33] Speaker 03:
But if we were to conclude that he has standing on some basis, perhaps on some basis but not on others, and send it back,

[00:13:38] Speaker 03:
Then the district court has to consider the injunction at that point.

[00:13:42] Speaker 03:
I don't know why that means that your client doesn't get relief or potentially at least have the argument for relief.

[00:13:50] Speaker 00:
Because relief in a preliminary injunction is in situation.

[00:13:54] Speaker 00:
We have Elrod v. Burns, you know, denial of First Amendment rights.

[00:13:57] Speaker 00:
rights is an irreparable harm.

[00:14:01] Speaker 00:
Every day that goes by that he can't speak, that he can't post to Facebook, host speakers recommend books, teaches class because he's afraid of ending up like Professor Garrett.

[00:14:09] Speaker 00:
Every single moment that that happens is an irreparable injury.

[00:14:13] Speaker 00:
And in Planned Parenthood, a case that the other side brought up, this court found

[00:14:17] Speaker 00:
when the proper resolution is beyond any doubt, when injustice might otherwise result, when an issue is purely legal, those are all exceptions to the general rule where you kick it back to the district court for first decision.

[00:14:28] Speaker 00:
And the fourth factor mentioned by this court five years ago in Planned Parenthood is the effect a delay would have and where the significant questions of general impact are raised.

[00:14:38] Speaker 00:
I think this case is in all fours of Planned Parenthood.

[00:14:41] Speaker 00:
We can't have a situation where this type of

[00:14:45] Speaker 00:
situation is allowed to occur and persist.

[00:14:47] Speaker 00:
The district court did not respond for months and months to our motion to expedite consideration of the preliminary injunction.

[00:14:54] Speaker 00:
We had to file a petition for mandamus just to get the district court to pick up the case and then we have this hear no evil, see no evil denial of, you know, the record entirely.

[00:15:05] Speaker 00:
You have

[00:15:06] Speaker 00:
the district court saying that there are no details that are actually provided in the declaration that are asserted in the complaint.

[00:15:12] Speaker 00:
We know what the district court thinks of this case.

[00:15:14] Speaker 00:
Now, that's okay.

[00:15:15] Speaker 00:
District judges always disappoint one side or the other in every case, and we can handle that.

[00:15:20] Speaker 00:
But if a district judge sees a First Amendment case that has even a plausible chance of having some merit, and the district court

[00:15:30] Speaker 00:
sits on it, doesn't work to expedite, has to, you know, be dragged into this type of state.

[00:15:36] Speaker 00:
Okay.

[00:15:36] Speaker 05:
I think we know your argument.

[00:15:37] Speaker 05:
I want to make sure, because you're out of time.

[00:15:39] Speaker 05:
Thank you, Your Honor.

[00:15:40] Speaker 05:
But wait.

[00:15:40] Speaker 05:
I just want to see if anyone's got any additional questions.

[00:15:42] Speaker 05:
No, thank you.

[00:15:43] Speaker 05:
Okay.

[00:15:44] Speaker 05:
I'll give you two minutes.

[00:15:45] Speaker 05:
Thank you.

[00:15:47] Speaker 05:
Because we had a lot of questions for you.

[00:15:57] Speaker 02:
Good morning, Your Honors.

[00:15:57] Speaker 02:
Good morning.

[00:15:58] Speaker 02:
Jay Russell from the California Attorney General's Office on behalf of Sonia Christian, Chancellor of the California Community Colleges.

[00:16:06] Speaker 02:
We're here today on the appeal of a motion for preliminary injunction and the motion for preliminary injunction was denied because the underlying case was dismissed and therefore the preliminary injunction motion was moot.

[00:16:22] Speaker 02:
There's no underlying action that would support allegations

[00:16:26] Speaker 02:
of a preliminary injunction motion.

[00:16:27] Speaker 04:
What if we disagree?

[00:16:28] Speaker 04:
Why shouldn't we exercise pendant appellate jurisdiction?

[00:16:31] Speaker 02:
I'm sorry, Your Honor.

[00:16:32] Speaker 04:
What if we disagree and the basis of the P.I.

[00:16:35] Speaker 04:
denial was solely the motion to dismiss order?

[00:16:38] Speaker 04:
So why shouldn't we exercise pendant appellate jurisdiction?

[00:16:42] Speaker 02:
Because there's not a final order in the district court, Your Honor, that the motion to dismiss with leave to amend under WMX TAC

[00:16:52] Speaker 02:
This court does not have jurisdiction to hear that case until there is a final decision.

[00:16:59] Speaker 02:
And so what's happened here is the plaintiff has pulled along the underlying case with his preliminary injunction motion, although it's still pending in the district court.

[00:17:11] Speaker 02:
Justice Wallace of this court has written in concurring opinions.

[00:17:17] Speaker 05:
There is no justice on the Ninth Circuit.

[00:17:19] Speaker 05:
There is no justice on the Ninth Circuit.

[00:17:22] Speaker 05:
Judge Wallace?

[00:17:22] Speaker 02:
Judge Wallace, I apologize, Your Honor.

[00:17:24] Speaker 02:
Thank you.

[00:17:25] Speaker 02:
Judge Wallace has written recently in a couple of concurring opinions to express his concern that in some cases, parties' appeal orders granting or denying motions for preliminary injunctions in order to ascertain the views of the appellate court on the merits of this litigation.

[00:17:44] Speaker 02:
And I would submit that that's exactly what's happening here, Your Honors.

[00:17:48] Speaker 02:
is the only thing that has been appealed is the motion for preliminary injunction.

[00:17:54] Speaker 02:
And that had to be denied as moot once the underlying case was dismissed.

[00:18:00] Speaker 05:
But he said that the appellant didn't have standing, right?

[00:18:05] Speaker 02:
That's correct.

[00:18:06] Speaker 05:
What if we think that the district courts are wrong on that?

[00:18:09] Speaker 05:
What if we think based on this that the appellant does have standing on something

[00:18:17] Speaker 05:
Maybe not all, but on something.

[00:18:19] Speaker 05:
Then we get to the dependent jurisdiction, whether we exercise that.

[00:18:24] Speaker 02:
Well, this court's jurisdiction is, or this court's review should be very limited on the motion for preliminary injunction.

[00:18:33] Speaker 02:
And it should be looking at whether or not there is an abuse of discretion or whether or not there was... Well, but whether someone has standings a little bit more.

[00:18:41] Speaker 05:
I think that didn't the magistrate judge find standing?

[00:18:45] Speaker 05:
And then the district court went against that, right?

[00:18:48] Speaker 02:
That's correct, Your Honor.

[00:18:49] Speaker 05:
All right.

[00:18:51] Speaker 02:
But nevertheless, what we're hearing... Kind of a legal issue.

[00:18:54] Speaker 02:
That is a legal issue, but that legal issue is still pending with the district court because there's been leave to amend that's been granted.

[00:19:02] Speaker 05:
But he's saying right on the facts alleged that there's not enough for standing.

[00:19:09] Speaker 05:
But what if this court feels there was enough on the facts alleged?

[00:19:14] Speaker 02:
Well, it would do so if it found that the district court either abused its discretion or based its decision on, that its decision was legally erroneous.

[00:19:27] Speaker 02:
And again, this court in many instances has said that when a motion for preliminary junction is denied, when it's denied, when it's moot, that is almost the only possible outcome when there's no case pending.

[00:19:43] Speaker 02:
Here, procedurally, there is no case pending.

[00:19:48] Speaker 02:
If the court were to review the merits of the underlying action, which still is within the district court, I would submit that the district court did get it right.

[00:20:00] Speaker 02:
The district court looked primarily at the Dryhouse case and determined that the chancellor

[00:20:06] Speaker 02:
most importantly, had no ability to enforce anything against staff like Professor Johnson.

[00:20:12] Speaker 05:
Well, but the Chancellor could be a different situation than some of the other people, too, right?

[00:20:20] Speaker 05:
Well, the Chancellor didn't, but there are other people that

[00:20:25] Speaker 05:
That if there aren't aren't there other defendants?

[00:20:29] Speaker 02:
There are not there are your honor.

[00:20:31] Speaker 05:
I'll allow my colleague to address that but as far as the chancellor wins, right?

[00:20:35] Speaker 05:
Maybe the other then you could throw the other people under the bus and my colleague will answer that your honor.

[00:20:40] Speaker 04:
So are you willing to disavow on behalf of the chancellor any intent to enforce the provisions at issue here against Mr Johnson based upon his proposed speech described in the complaint?

[00:20:53] Speaker 02:
Well, again, the regulations that are being challenged here are applicable to the districts.

[00:20:58] Speaker 02:
The California Community Colleges drafts those regulations and they apply them to the districts, not directly to individuals like Professor Johnson.

[00:21:09] Speaker 04:
So is that a disavowal or not?

[00:21:11] Speaker 04:
I couldn't tell.

[00:21:12] Speaker 04:
I mean, is your point just that the chancellor herself doesn't have authority to enforce the district's, the community college district's regulations against an employee of that district?

[00:21:24] Speaker 02:
That's correct.

[00:21:25] Speaker 02:
Under the education code, your honor.

[00:21:28] Speaker 02:
Personnel decisions like that are left to each of the individual districts.

[00:21:32] Speaker 02:
California Education Code tries to provide individual districts with as much latitude as possible to make those kinds of decisions.

[00:21:39] Speaker 04:
So if the chancellor doesn't have authority, then why can't you just represent here on the record in open court that the chancellor will not enforce these regulations against Mr. Johnson?

[00:21:52] Speaker 02:
That is what the district court found, Your Honor.

[00:21:55] Speaker 02:
that there's no chance.

[00:21:56] Speaker 02:
In fact, that's not even a litigation position.

[00:21:59] Speaker 02:
That's a position that's within the educational card.

[00:22:00] Speaker 05:
But you represent the Chancellor.

[00:22:01] Speaker 05:
Why can't you tell us that that's correct?

[00:22:03] Speaker 05:
The Chancellor will not enforce them.

[00:22:06] Speaker 02:
I believe that that's correct, Your Honor.

[00:22:11] Speaker 05:
That's as good as it gets.

[00:22:12] Speaker 05:
Any other questions?

[00:22:14] Speaker 05:
Your time's up.

[00:22:14] Speaker 02:
Thank you.

[00:22:15] Speaker 05:
Thank you.

[00:22:25] Speaker 01:
Morning, may it please the court.

[00:22:26] Speaker 01:
David Urban for the current Community College District Defendants.

[00:22:30] Speaker 01:
In this case, the District Court correctly found no case or controversy under Article 3.

[00:22:34] Speaker 01:
The rules the Plaintiff Johnson challenges do not prohibit the speech in which he seeks to engage.

[00:22:40] Speaker 01:
I'll talk first about the standards that are applicable only to the current Community College District Defendants and talk about the Chancellor's regulations in a moment.

[00:22:48] Speaker 01:
The Education Code prohibits unprofessional conduct, dishonesty, unfitness,

[00:22:53] Speaker 01:
policy 3050, which the plaintiff also challenges, it's a civility-bullying policy.

[00:22:59] Speaker 01:
Now, Johnson said in his papers, in his First Amendment complaint, what he intends to say, classes he intends to teach, other speech in which he seeks to engage.

[00:23:09] Speaker 01:
None of that is unprofessional conduct, dishonesty, unfitness.

[00:23:13] Speaker 01:
It's not bullying.

[00:23:14] Speaker 01:
It's not a lack of civility.

[00:23:17] Speaker 01:
For that reason, there is really no Article III standing in this case.

[00:23:22] Speaker 01:
a challenge to be entertained.

[00:23:25] Speaker 03:
So are you avowing in open court on behalf of the community college defendants that none of these regulations will be applied to Professor Johnson based on his teaching and scholarship and the positions he takes about these DEI policies?

[00:23:41] Speaker 01:
Well, let me go to the Education Code and Board Policy 305.

[00:23:44] Speaker 05:
You can say yes or no.

[00:23:46] Speaker 05:
That would be okay.

[00:23:47] Speaker 05:
That's what lawyers do to witnesses.

[00:23:50] Speaker 01:
Understood.

[00:23:50] Speaker 01:
I have to qualify the way.

[00:23:51] Speaker 03:
I mean, one of the ways that you would show that the dry house factors are not satisfied is if there's no threat of enforcement.

[00:24:01] Speaker 03:
There's no threat of harm to the plaintiff.

[00:24:03] Speaker 03:
Are you willing to make that a vow?

[00:24:05] Speaker 03:
You just said his classes he wants to teach, his statements don't fall under lack of civility or bullying, etc.

[00:24:12] Speaker 03:
But do they fall under something else within those policies that could lead to his termination?

[00:24:17] Speaker 01:
Well, I'm going to provide a disavowal.

[00:24:19] Speaker 01:
Judge Koh asked for a specific disavowal from my friend, and I'm going to provide something very similar, but I have to do it in sort of a complex way.

[00:24:27] Speaker 01:
We have three items that issue the education code, Board Policy 3050, and then the Chancellor's Regulations are the third, a little bit more complex.

[00:24:34] Speaker 01:
The Education Code, Board Policy 3050, we are not going to enforce those against Professor Johnson for anything he has said he's going to do in his place.

[00:24:44] Speaker 04:
And what numbers are you putting in that?

[00:24:47] Speaker 04:
You had three buckets.

[00:24:48] Speaker 04:
You said California Education Code?

[00:24:50] Speaker 04:
Yes, ma'am.

[00:24:51] Speaker 04:
Is that 87732 and 87735?

[00:24:54] Speaker 01:
Yes.

[00:24:54] Speaker 04:
Okay.

[00:24:55] Speaker 04:
You're not going to enforce that.

[00:24:56] Speaker 04:
Okay.

[00:24:57] Speaker 04:
Let's just go Policy 350.

[00:24:59] Speaker 04:
What's your view on that?

[00:25:00] Speaker 01:
No.

[00:25:01] Speaker 01:
It's not bullying in civility, what he says he would like to do.

[00:25:04] Speaker 04:
What about the DEI statement?

[00:25:07] Speaker 01:
Those are rating criteria, and we have to apply those to faculty.

[00:25:10] Speaker 01:
The issue for this case and the problem for standing is that there's no local implementation in the record.

[00:25:15] Speaker 01:
So we don't, in some respects, we don't know exactly what Johnson's going to say, and we don't know exactly what rules he's going to be judged under, which is a decisively defeat standing.

[00:25:26] Speaker 01:
Let me quickly go to another point for- What about the competencies and criteria?

[00:25:31] Speaker 01:
Those are guidance documents.

[00:25:32] Speaker 01:
It's exhibit A and B to Johnson's declaration.

[00:25:35] Speaker 01:
Those specifically state the chancellor thinks those are, you know, of use potentially, but they are not required to be implemented by community college districts.

[00:25:46] Speaker 01:
Let's go to one other point that was discussed previously.

[00:25:49] Speaker 01:
The regulation section five, six,

[00:25:53] Speaker 01:
I'm sorry, 53605.

[00:25:54] Speaker 04:
Yeah, let's do 53425, 53601, 53602, and 53605.

[00:26:01] Speaker 04:
Are you disavowing those?

[00:26:03] Speaker 01:
Well, we have to rate faculty on those, but there's no local implementation in the record.

[00:26:09] Speaker 01:
So this court has no basis to rule on those at that point, because we don't know how they're going to be implemented.

[00:26:17] Speaker 01:
Each of those provisions that are mentioned, they're either precatory language, 53201

[00:26:23] Speaker 01:
I'm sorry, 5 3 200 and 201.

[00:26:26] Speaker 01:
It's just precatory language.

[00:26:28] Speaker 01:
5 3 4 2 5.

[00:26:31] Speaker 01:
That talks about local implementation.

[00:26:35] Speaker 01:
It talks about being able to work appropriately with members of a diverse community as described by local implementation.

[00:26:45] Speaker 01:
The other ones, I'm going to jump to 53605, which is the one that doesn't talk about local implementation.

[00:26:51] Speaker 01:
That says you shall employ certain teaching practices.

[00:26:54] Speaker 01:
So someone would say that's a straight shot to my client, but no local interpretation required, because it just says faculty will do this.

[00:27:03] Speaker 01:
And the point's been made that

[00:27:06] Speaker 01:
Okay, you don't need local implementation for that.

[00:27:08] Speaker 01:
But local implementation actually is needed because one has to understand you have to implement diversity as described by the Chancellor's regulations and also anti-racism.

[00:27:20] Speaker 01:
And those are left to the local district to implement and to define.

[00:27:26] Speaker 04:
Where does it say that?

[00:27:27] Speaker 04:
I don't see that in 53605.

[00:27:29] Speaker 04:
It just says faculty members shall, staff members shall.

[00:27:33] Speaker 01:
That's correct, Your Honor.

[00:27:34] Speaker 01:
It's not stated in there, but it's very much implicit.

[00:27:38] Speaker 01:
Why?

[00:27:39] Speaker 01:
Because one has to understand how anti-racism is defined by that particular community college district and how the diversity standards are defined by that particular community college district.

[00:27:51] Speaker 01:
Other sections talk about how you have to implement it.

[00:27:54] Speaker 04:
So are there no

[00:27:58] Speaker 04:
The community college district has not implemented any of its own DEI and anti-racist principles.

[00:28:05] Speaker 01:
Those are not in the record, Your Honor.

[00:28:09] Speaker 04:
Does that mean they don't exist or that means they're not in the record?

[00:28:14] Speaker 01:
It means they're not in the record.

[00:28:17] Speaker 01:
The colleges are obligated to make some response to these regulations.

[00:28:21] Speaker 01:
And I don't want to say we've done nothing.

[00:28:24] Speaker 01:
I'm not in a position to have to say what we did because there's no standing and because it's not on the record.

[00:28:31] Speaker 04:
Are there any policies implementing the DEI regulations?

[00:28:36] Speaker 01:
I believe there are.

[00:28:39] Speaker 04:
And what are those?

[00:28:41] Speaker 01:
At this point, I don't think

[00:28:43] Speaker 01:
I'm sorry, Your Honor, but I don't want to supplement the record.

[00:28:46] Speaker 01:
It's plaintiff's burden to present evidence to this court.

[00:28:49] Speaker 01:
I had anticipated today that this court would ask that very reasonable question, but I'm not in a position to be able to answer it.

[00:28:57] Speaker 03:
Do you want to say that there's not sufficient information for us to conclude that he has standing, but you also won't acknowledge what any potential policies say?

[00:29:10] Speaker 01:
It's what's not in the record.

[00:29:12] Speaker 01:
I could say what I believe they are, but it wouldn't be meaningful for this court.

[00:29:17] Speaker 01:
Plus, it's not evidence.

[00:29:18] Speaker 01:
I could say it here, and then it's not going to be something that this court could rely on as evidence.

[00:29:24] Speaker 03:
Are those policies publicly available so that if this case were remanded, plaintiffs could read those policies and amend their complaint?

[00:29:33] Speaker 01:
I'm sure they could find those policies.

[00:29:35] Speaker 01:
We're talking about remand.

[00:29:36] Speaker 01:
There's a dismissal without prejudice, so we could conceivably have a finding of what those policies are and another complaint.

[00:29:47] Speaker 04:
I mean, this underscores the rightness issue, right?

[00:29:50] Speaker 04:
The record doesn't show that these policies have been implemented locally, and counsel for Mr. Johnson conceded that.

[00:30:00] Speaker 04:
So we really don't know exactly what's being challenged.

[00:30:03] Speaker 01:
Exactly, Your Honor.

[00:30:10] Speaker 01:
So to conclude, there's an issue of threat of enforcement.

[00:30:13] Speaker 01:
For standing, there has to be an intent to engage in a certain type of activity.

[00:30:17] Speaker 01:
There has to be prohibition by the statute at issue, and then there has to be

[00:30:22] Speaker 01:
threat of enforcement.

[00:30:25] Speaker 01:
So for threat of enforcement, there's very little in the record that goes to that.

[00:30:28] Speaker 01:
I'm going back to more policy 3050 and education, the education provisions, which I've got a statement by a trustee.

[00:30:37] Speaker 01:
There's, as was discussed previously, the investigation of Johnson that was finding that he didn't actually engage in something that would be disciplined.

[00:30:48] Speaker 05:
He talks about what he wants to do in terms of- Yes, but someone a lot like him.

[00:30:52] Speaker 05:
with a lot of similarities got fired.

[00:30:55] Speaker 05:
So that's looming out there.

[00:31:00] Speaker 01:
It's very much different conduct, Your Honor.

[00:31:02] Speaker 05:
I think previously we've kind of... Well, except they had the same jobs and similar ideologies didn't go well for the other individual.

[00:31:16] Speaker 01:
But Johnson has not said that he wishes to engage in any of the conduct that Garrett engaged in.

[00:31:21] Speaker 01:
And that's that's clear from the record.

[00:31:25] Speaker 01:
We've we've said that we're not going to to punish Johnson for what he's described in his pleadings.

[00:31:31] Speaker 05:
If someone came to after you settled for a lot of money with the other guy that you fired right.

[00:31:37] Speaker 01:
Well, I don't, I can't really talk.

[00:31:40] Speaker 01:
I know, but that's it, yeah.

[00:31:42] Speaker 03:
So, in Mr. Garrett's case, there was, there were two documents, there was a notice,

[00:31:50] Speaker 03:
I can't remember exactly what it was called, some sort of notice of the charges or the issues.

[00:31:54] Speaker 03:
And then there was a notice of termination.

[00:31:56] Speaker 03:
And the first of those documents listed this policy, this 3050, but the second didn't.

[00:32:03] Speaker 01:
That's correct, Your Honor.

[00:32:04] Speaker 03:
So why is that not sufficient to give Mr. Johnson some concern that that policy would be invoked against him?

[00:32:13] Speaker 01:
Because he doesn't wish to engage in any of the conduct that's the subject of the disciplinary notice for Garrett.

[00:32:20] Speaker 03:
Well, going on a podcast and posting things on Facebook, speech, political speech basically.

[00:32:26] Speaker 03:
So you're saying there's something Mr. Garrett did beyond those things?

[00:32:30] Speaker 01:
Yes.

[00:32:30] Speaker 01:
He engaged in a great deal of, he filed a lot of complaints that were found to be unsubstantiated, many complaints.

[00:32:37] Speaker 01:
He made false statements about his colleagues.

[00:32:40] Speaker 01:
It's all detailed in those notices that Johnson has attached to his pleadings.

[00:32:45] Speaker 01:
But it is very distinct.

[00:32:47] Speaker 01:
Johnson says he wants to teach particular things in his classes.

[00:32:50] Speaker 01:
None of Garrett's speech is classroom speech.

[00:32:52] Speaker 01:
Johnson says he wants to recommend books or talk about other issues, have guest speakers on campus.

[00:32:59] Speaker 01:
And that's not what Garrett was punished for.

[00:33:03] Speaker 03:
Couldn't Mr. Johnson go on the podcast?

[00:33:05] Speaker 03:
Could he post things on Facebook?

[00:33:07] Speaker 03:
Would all of that be permissible?

[00:33:08] Speaker 01:
Everything that he said in his complaint, as stated, is permissible.

[00:33:16] Speaker 01:
I did say previously that on remand, the plaintiff could amend the complaint.

[00:33:21] Speaker 03:
Are there any additional questions?

[00:33:24] Speaker 03:
I'd like to hear him complete the statement.

[00:33:26] Speaker 03:
What were you going to say about remand?

[00:33:27] Speaker 01:
I don't want to waive any of my client's litigation.

[00:33:34] Speaker 01:
Available litigation options with regard to an amended complaint if there's I guess I'm just presuming that for the record I mean I said that but I think we would want it.

[00:33:42] Speaker 05:
Are you walking it back?

[00:33:45] Speaker 01:
Just said Being cautious and just reserving rights standing by it.

[00:33:50] Speaker 05:
Are you walking it back?

[00:33:51] Speaker 05:
Are you taking it back?

[00:33:53] Speaker 01:
there's a dismissal with with leave to amend and I'll leave it at that it's I

[00:33:58] Speaker 01:
If there's leave to amend, then he's allowed to do so.

[00:34:00] Speaker 05:
Well, I think what you said was everything that Mr. Johnson says he wants to do, you'll let him do.

[00:34:06] Speaker 01:
Oh, certainly.

[00:34:06] Speaker 01:
I'm talking about the complaint.

[00:34:07] Speaker 01:
It's a procedural... I said before that he can just amend his complaint.

[00:34:14] Speaker 01:
saying what we're we're not going to discipline him for it that is on the record and and that's clear and it's not walked back.

[00:34:20] Speaker 04:
So all the speech in his complaint now you're saying is permissible and you will not enforce any of these rules against him based on what's in the current complaint but you're saying you want to wait and see what any future complaint alleges.

[00:34:31] Speaker 01:
I'm sorry I'm talking about the litigation the actual complaint first amended complaint so procedurally yeah and everything that's

[00:34:38] Speaker 01:
that's in the papers that Johnson has described he wants to speak on and do, we're not going to punish him for that under the board policy 3050 or the education code.

[00:34:48] Speaker 04:
Or any of these other regs that we're talking about?

[00:34:50] Speaker 01:
Well, he has to be rated under those regs, but we don't know what the standards are yet.

[00:34:55] Speaker 01:
There's no local implementation.

[00:34:57] Speaker 01:
So I can't say we're not going to rate him under the chancellor's regulations, because we have to rate all faculty.

[00:35:04] Speaker 04:
But you haven't implemented the policies that would incorporate this chancellor's competencies and criteria.

[00:35:15] Speaker 01:
Certainly.

[00:35:16] Speaker 01:
That's not in the record.

[00:35:17] Speaker 01:
And I hasten to add that they could be very much

[00:35:20] Speaker 01:
They could say, look, professors can disagree with these principles.

[00:35:24] Speaker 01:
They have to comply with the regulations, but they're free to present both sides, educate their students on different points of view.

[00:35:32] Speaker 01:
This local implementation could be very generous and could make clear that Professor Johnson is not going to be penalized for particular viewpoints.

[00:35:41] Speaker 03:
But he says his speech is chilled and Professor Garrett was fired.

[00:35:46] Speaker 03:
He's not doing certain things, not hosting speakers, not posting things online.

[00:35:51] Speaker 03:
He's not going on radio programs or podcasts.

[00:35:54] Speaker 03:
And it doesn't seem that anything you've said here today would give him any comfort, that he should go ahead and say the things he wants to say without fear of being terminated from his job.

[00:36:06] Speaker 01:
Well, I can't go much beyond what he's pleaded in his complaint and say that he's not going to be punished for that.

[00:36:16] Speaker 04:
And he hasn't been punished thus far, and he's been doing what he said he's been doing in the complaint, correct?

[00:36:22] Speaker 01:
That's absolutely correct, Your Honor, which is a further indication that he's not going to be punished for it, since everyone knows he's doing this, has done this, and there's no punishment for it.

[00:36:33] Speaker 05:
Okay, thank you.

[00:36:35] Speaker 05:
Two minutes for rebuttal.

[00:36:44] Speaker 00:
Your Honours, this is a little bit ridiculous.

[00:36:47] Speaker 00:
Let's go to the brief that my colleague filed in November, page 61.

[00:36:52] Speaker 00:
I'm quoting here.

[00:36:53] Speaker 00:
No one, not the district nor the court, can evaluate this disruption until Johnson actually engages in conduct that violates district rules.

[00:37:02] Speaker 00:
And that's the same position they took with the district court.

[00:37:05] Speaker 00:
If you look at the district court docket 72 at 23, their objection to the MPI recommendations, they declared that they couldn't decide whether Johnson's speech is punishable until he actually expresses it.

[00:37:17] Speaker 00:
And so here we are after years and years of litigation and when he is suggested to give certain answers.

[00:37:23] Speaker 04:
But that's based on the fact that thus far they don't think anything he said does violate the policies, right?

[00:37:29] Speaker 00:
Well, they, actually that, Your Honor, that's actually not true because they punished Professor Garrett for Professor Johnson's speech.

[00:37:35] Speaker 04:
But Professor Garrett violated the COVID restrictions, he threatened a trustee of the district, his conduct was different, and Mr. Johnson said, I'm not going to do that, right?

[00:37:44] Speaker 00:
Okay, so first of all, Your Honor.

[00:37:46] Speaker 04:
Well, let me ask you, did Professor Johnson violate campus code

[00:37:50] Speaker 04:
COVID-19 policies.

[00:37:52] Speaker 00:
Is that in the record that he violated COVID-19 policies?

[00:37:59] Speaker 04:
I'm sorry, I just want to go through the Garrett conduct because if this is all riding on Garrett, I think it's a fair comparison.

[00:38:06] Speaker 04:
Did Mr. Johnson ever threaten a trustee, as Mr. Garrett did, Trustee Corkins, or ever express the intent to do so?

[00:38:15] Speaker 00:
No, he did not do that, Your Honor.

[00:38:16] Speaker 04:
Okay.

[00:38:16] Speaker 04:
Did he ever violate, who alleged that he violated the COVID policies?

[00:38:20] Speaker 04:
I'm sorry, I must have missed that in the record.

[00:38:22] Speaker 04:
Someone in the district did, but Your Honor... Can you give me the citation and I can go back and look at it?

[00:38:26] Speaker 00:
Who is it that alleged that?

[00:38:27] Speaker 00:
I don't know who alleged, made allegations against Professor

[00:38:31] Speaker 00:
Garrett it's this miss.

[00:38:33] Speaker 00:
I think it was a Dean McGraw that brought the initial set of charges, but let's look at the long list There are 17 things that were alleged against Garrett.

[00:38:39] Speaker 00:
There are pure First Amendment speech.

[00:38:41] Speaker 04:
I'm sorry Who alleged that mr. Johnson?

[00:38:47] Speaker 04:
Violated COVID-19 policies.

[00:38:49] Speaker 00:
Mr. Johnson was not accused of IDing COVID-19.

[00:38:51] Speaker 04:
Okay.

[00:38:52] Speaker 04:
Thank you

[00:38:53] Speaker 04:
Okay.

[00:38:54] Speaker 04:
What about making that there was a third party investigator who found that representations were not true, but did Mr. Johnson keep making these, you know, a third party investigator found allegations against colleagues and the school were not true.

[00:39:11] Speaker 04:
Did Mr. Johnson knowingly repeat these false representations and does he intend to do so?

[00:39:17] Speaker 00:
Because that is... Mr. Johnson did not do any of those things.

[00:39:20] Speaker 00:
And he was not accused of doing those things.

[00:39:22] Speaker 04:
Okay.

[00:39:22] Speaker 04:
So I think there are some pretty stark contrasts between Professor Johnson and Professor Garrett.

[00:39:28] Speaker 00:
No, Your Honor.

[00:39:29] Speaker 00:
The reason I would say that, well, of course he's not the same person.

[00:39:33] Speaker 00:
He's not identical.

[00:39:34] Speaker 00:
He's not going to copy every single thing that Professor Garrett said and did.

[00:39:37] Speaker 00:
However, if we look at the allegations against Professor Garrett, Professor Johnson will actually say and do the exact same things.

[00:39:45] Speaker 00:
The very first allegation against Professor Garrett was that he wrote an op-ed in the Bakersfield, California,

[00:39:51] Speaker 00:
They criticized cultural Marxism.

[00:39:53] Speaker 00:
So the words cultural Marxism, Professor Garrett denied that they were hate speech and this is the first thing they thought of to charge him for termination.

[00:40:03] Speaker 00:
So Professor Johnson went back and said, gee, 15 of the 18 instances on the riffle Facebook page talking about cultural Marxism were my words.

[00:40:12] Speaker 00:
There's another post for which Professor Garrett was disciplined over.

[00:40:17] Speaker 04:
And he was never, Professor Johnson was never punished.

[00:40:22] Speaker 04:
for any of his postings on cultural Marxism, correct?

[00:40:25] Speaker 00:
A person of ordinary firmness taking a look at the long list of speech violations issued against Professor Garrett.

[00:40:32] Speaker 04:
But answer my question, though.

[00:40:34] Speaker 04:
Has Professor Johnson ever been prosecuted for any statements, postings, speeches, podcasts, interviews about cultural Marxism?

[00:40:45] Speaker 00:
On cultural Marxism, no, but he stopped doing it when he saw that it was a violation.

[00:40:50] Speaker 00:
And he won't do it because he's told in the brief, notwithstanding some comments earlier, that we'll know when we see it.

[00:40:57] Speaker 00:
So we have a long list of, in fact, some of the things that Professor Garrett was charged with were actually things written by Professor Johnson or... But if he previously did it and was not published, but he is personally choosing not to do it, that's his choice.

[00:41:15] Speaker 00:
If I get away with it.

[00:41:18] Speaker 04:
He's the one that said, I'm the one that posted all those cultural Marxist posts, not Professor Garrett, and he was never punished for that.

[00:41:25] Speaker 00:
Yet.

[00:41:26] Speaker 00:
They're being sued right now, which is why perhaps they're being... But then get the enforcement and then come back.

[00:41:31] Speaker 04:
And then you completely have standing on that.

[00:41:34] Speaker 04:
Your Honor, the first... This is not a permanent exclusion.

[00:41:38] Speaker 04:
It's just saying, let's wait for the threat of enforcement to ripen.

[00:41:43] Speaker 00:
Your Honor, in the First Amendment, you don't need a specific threat of enforcement in order to have standing.

[00:41:48] Speaker 00:
It's enough that there is a reasonable chance that your conduct will incur official rebuke.

[00:41:56] Speaker 00:
And in fact, standing is highly relaxed in a pre-enforcement situation under the First Amendment.

[00:42:02] Speaker 00:
If Professor Johnson doesn't have standing to assert a First Amendment claim for being chilled,

[00:42:10] Speaker 00:
when his colleague has been fired for saying and doing all the things that he wants to say.

[00:42:15] Speaker 00:
And finally, one last word.

[00:42:18] Speaker 00:
The disavowal also by the Chancellor is not exactly sufficient because the Chancellor will keep maintaining promulgating

[00:42:27] Speaker 00:
updating this guidance document.

[00:42:30] Speaker 00:
There's a continuing obligation that the Chancellor has to manage these competencies and criteria, and those will continue.

[00:42:37] Speaker 05:
Thank you, Your Honor.

[00:42:38] Speaker 05:
All right.

[00:42:38] Speaker 05:
Any additional questions?

[00:42:39] Speaker 05:
No, thank you.

[00:42:39] Speaker 05:
All right.

[00:42:40] Speaker 05:
We've taken everyone over time, but thank you for that.

[00:42:43] Speaker 05:
It was all permitted.

[00:42:45] Speaker 05:
So this matter is submitted, and thank you, both sides, for your argument.