School district's 'equity training' didn’t constitute First Amendment injury, appeals court says
A public school district can’t be sued for violating the First Amendment rights of two employees who stopped speaking or pretended to agree with presenters during required “equity training,” a federal appeals court has ruled. (GDA via AP Images)
A public school district can’t be sued for violating the First Amendment rights of two employees who stopped speaking or pretended to agree with presenters during required “equity training,” a federal appeals court has ruled.
The 8th U.S. Circuit Court of Appeals at St. Louis said fear of punishment by the plaintiffs, Brooke Henderson and Jennifer Lumley, was too speculative to constitute an injury under the First Amendment.
The Volokh Conspiracy published portions of the Sept. 13 opinion.
Henderson and Lumley had sued for an alleged First Amendment violation for chilled and compelled speech under Section 1983 of the Civil Rights Act. The appeals court agreed with a lower-court judge that the case should be tossed because the plaintiffs’ speculative injury did not give them standing.
“The evidence shows that when the plaintiffs and others expressed views different from those of the school district, they received pushback from the trainers on the substance, but they were not asked to leave, and they were not called unprofessional,” the 8th Circuit said in an opinion by Chief Judge Steven M. Colloton, an appointee of former President George W. Bush. The plaintiffs’ fear of punishment for their views “was too speculative” to establish an injury, the 8th Circuit said.
During training, instructors displayed a slide indicating that participants would be asked to leave with no credit if they were not professional. But no one was actually asked to leave, no one was denied pay for their time, and everyone received professional development credit.
The appeals court also found that there was no unconstitutional compulsion of speech by requiring some participants to answer online questions with the “correct” answer.
“We are aware of no authority holding that simply requiring a public employee to demonstrate verbally an understanding of the employer’s training materials inflicts an injury under the First Amendment,” the 8th Circuit said.
Although the appeals court ruled against the plaintiffs, it found that their First Amendment claims were not frivolous. As a result, a federal judge’s award of attorney fees to the school district should be reversed, the appeals court said.
The in-person training by the R-12 School District in Springfield, Missouri, taught participants how to be “anti-racist” and defined anti-racism as “actively opposing racism by advocating for changes in political, economic and social life.” Participants were told that they were not being labeled white supremacists as individuals, but they were warned that certain actions or statements can support a structural system of white supremacy. Virtual training was similar.
During virtual training, Henderson stated that she thought that Kyle Rittenhouse, who was accused of shooting three protesters, killing two of them, during racial justice demonstrations in 2020 in Kenosha, Wisconsin, acted in self-defense. The presenter said Henderson was “confused” and “wrong,” spurring Henderson to stop speaking for fear that she would be asked to leave. She also indicated agreement with presenters during an exercise because of similar fears.
During in-person training, Lumley said she didn’t think that all white people were racist, and she thought that people of other races could be racist. The presenter responded that Black people could be prejudiced but not racist. Lumley also said she didn’t think that she was born into privilege as a white person because she grew up in a low-income family. The presenter responded that Lumley was “born into white privilege.” At that point, Lumley said she stopped speaking because of fear that she would be asked to leave.
In ruling against the plaintiffs, the 8th Circuit said its conclusions would be the same if the school district’s required training aligned more closely with the plaintiffs’ views.
In examples of content that could be taught in this opposite scenario, the appeals court cited a phrase from the U.S. Supreme Court’s 1896 decision in Plessy v. Ferguson that upheld separate-but-equal laws (“Our Constitution is colorblind.”); the Rev. Martin Luther King Jr.’s 1963 “I Have a Dream” speech (People should “not be judged by the color of their skin but by the content of their character.”); and from the Supreme Court’s 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 holding that public schools can’t use race as a factor in assigning students to schools (“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”).
In that scenario, employees who thought that practicing colorblindness perpetuates white supremacy could not sue as long as they were not punished or threatened with punishment for remaining silent or expressing disagreement, the 8th Circuit said.
The case is Henderson v. Springfield R-12 School District.
