Transcript: Daniel Ortner

Guest host Aaron Pete's interview with the FIRE lawyer

One of the most important tasks for a seasoned journalist is to pass on what you know. Journalism is something that’s learned by doing, usually alongside someone who’s done it longer. I enjoyed this process while at CBC, and I am pleased to now be at a point with Lean Out that I can expand the operation to include working with up-and-coming journalists. Late last year, I had the pleasure of appearing on fellow Substacker Aaron Pete’s show, the Bigger Than Me podcast, and was impressed by his curiosity, perceptive questions, and thoughtful interviewing style. So I invited him to work together this summer to create an episode of Lean Out. I’m thrilled to have Aaron Pete guest host the show this week. — TH

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One of the ongoing themes of the Lean Out podcast is the importance of viewpoint diversity — particularly on controversial issues. This topic was in the news again this month, with a lawsuit filed by the Foundation for Individual Rights and Expression, against California Community Colleges state and district officials on recent diversity, equity, and inclusion (DEI) regulations.

Daniel Ortner is a lawyer for the Foundation for Individual Rights and Expression.

This is an edited transcript for paid subscribers. You can listen to the episode for free here.

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AP: Daniel, welcome to Lean Out

DO: Thanks so much for having me, Aaron.

AP: The Foundation for Individual Rights and Expression, or FIRE, has filed a lawsuit against the California Community Colleges state and district officials, including Chancellor Sonya Christian. You are the lead counsel on this case, representing six California Community Colleges professors. This lawsuit aims, in FIRE’s words, “to halt new system-wide regulation that forces professors to espouse and teach politicized conceptions of diversity, equity, and inclusion.” We will get into the specifics in a moment. But to start today, Daniel, can you outline the broad strokes of the professors’ complaints here and why FIRE is choosing to pursue this case?

DO: These rules that were enacted by the California Community Colleges are statewide for all of the faculty — 54,000 teaching faculty — in the community colleges. It requires them to teach and preach a very politicized conception of DEI. This is about the state trying to end the debate on some of the most contentious issues in society. Topics like anti-racism, intersectionality, and whether colourblind or colour-conscious approaches are the best remedy for racial inequality are hotly debated in our society. But California is stepping in and saying, “This is the view you have to take in the classroom. You have to endorse anti-racism, you have to endorse intersectionality.” If you teach alternative views, you might be accused of what they call “weaponizing academic freedom and inflicting curricular trauma” on your students. So that’s what professors now are afraid of.

The plaintiffs who we represent are afraid that if they don’t forcefully interject these DEI views into the classroom, contrary to their own views — and if they don’t silence themselves and stop sharing their views and sharing alternative positions and encouraging debate among their students — they’re going to get disciplined or fired from their jobs.

This is about academic freedom and free speech. It’s about the government not being allowed to step in and put a strait-jacket, and impose a dogma on what can be taught in the classroom.

AP: Let’s get into specifics. In May of 2022, the California Community Colleges' Board of Governors approved diversity, equity and inclusion and accessibility regulations that require all college professors to incorporate what FIRE sees as the state’s views on DEI. Under the new regulations, for instance, all of the roughly 54,000 professors who teach in the California Community Colleges system must incorporate anti-racist viewpoints. How is anti-racist defined in this context — and on what basis has FIRE deemed this as a contested political viewpoint?

DO: One of the problems with these rules is that the concepts are defined very cursorily or not at all in the core rules document. The Community Colleges’ Chancellor’s Office released a document called the Glossary that defines terms in greater detail. That glossary defines anti-racism very specifically. It talks about how anti-racism is actively opposing racism by looking to looking at the fact that racial policies have caused racial inequalities. Someone has to challenge structures and policies and behaviours that perpetuate systemic racism. And it says that 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. And then it says that these policies have to be colour-conscious. It describes colourblindness as a racial ideology that’s grounded in white supremacy. It defines all these very specifically, where it basically says you have to endorse the concept — that the way to solve racial inequality is overt race-conscious policies. That’s hotly debated, from Washington, DC, to Sacramento, in classroom and the boardroom, all across the nation.

People are debating this because the alternative approach of colourblindness goes back to this country’s legacy of equality under the law. There’s good arguments, really, on both sides. Ultimately the state of California can’t end the debate. It can’t step in and say, “This is the concept you have to endorse. You have to be colour-conscious. You have to affirmatively try to tear down systemic inequality” — that people debate about, whether it exists or not.

AP: Could you walk us through FIRE’s overall legal reasoning here? Why, in FIRE’s view, are these new DEI regulations unconstitutional — and a violation of First Amendment rights?

DO: They violate the constitution in several ways. First of all, the constitution, the First Amendment, does not allow the government to determine what is orthodox. In famous Supreme Court cases, one of stars in our constitutional constellation is that the government cannot determine what is orthodox in the matters of politics, religion, et cetera. The government can’t come in and say, “This is what is mandatory. This is the dogma that everyone has to agree with.” And that’s exactly what they’ve done here. They’ve come to all the professors across the state and said, “You have to acknowledge this. You have to teach this in the classroom, you have to incorporate it into curriculum. You have to share these viewpoints about DEIA.” And then, on top of that, they also compel speech, which is another serious First Amendment problem. They tell the professors, “You have to teach these concepts, and if you try to offer alternatives, you might get disciplined for doing so.” And so, they compel speech. They restrain expression, obviously, in the classroom.

Our clients are not sure what they can teach or not teach. For instance, two of our clients have their students read Letter From a Birmingham Jail by Martin Luther King Jr., a classic Civil Rights document. But that document has profanity, and it has the N-word racial slur in it. It also teaches a colourblind view, generally, of equality — and they’re not sure if teaching that to their students and having the students read Martin Luther King's famous Civil Rights essay will be compliant with these rules. So, it really creates a chilling effect, because the rules are so over-broad and so vague that no professor can know what they can or can’t teach in their classroom anymore. And so it really creates a chilling effect on the kind of discussions that are vital to our democracy, to continue in the classroom.

AP: I’d like to spend a moment specifically focused on these diversity statements. FIRE’s 2022 research found that half of the roughly 1500 professors surveyed believe that these statements are ideological litmus tests that violate academic freedom. For listeners who may not be familiar, what are these statements and how do they play a role in the academic context?

DO: Diversity statements are where a university requires someone who wants to be a professor applying for a job, or someone who’s currently seeking tenure or to advance, to write a statement about their contribution to diversity, the extent to which they’ve advanced DEIA principles.

What California Community Colleges does is take that to a whole other level, really, that we haven’t seen anywhere else. Most systems, it’s kind of vague, and you have to explain your contribution to diversity. But California again requires these very specific concepts of anti-racism, intersectionality, and it decries even the concept of merit and says that that perpetuates white supremacy. The concept of merit — of there’s different quality from students, that performances vary — that kind of concept perpetuates white supremacy under this glossary that the state has put out. So, it gets very specific in the concepts that they have to endorse. And then they are going to have to, every three years when they’re up for evaluation, write a statement about what they’ve done over the past evaluation to further these concepts.

And so, they’re going to have to endorse concepts that they disagree with. They’re going to have to silence their own views, and that’s going to chill their expression in the classroom.

AP: The California Community Colleges’ curriculum model contains the following guidance, “Take care not to weaponize academic freedom and academic integrity as tools to impede equity in an academic discipline, or inflict curricular trauma on our students, especially historically marginalized students.” What’s your position on this statement — or FIRE’s?