Last week, in a 6-5 ruling the U.S. Court of Appeals for the Eighth Circuit sitting en banc (French for “in bench,” which is lawyer-speak for the entire court deciding an appeal, rather than a three-judge panel), decided that two teachers forced to engage in “anti-racism” training suffered a sufficient injury to their First Amendment free speech rights, and can continue pursuing their lawsuit.
Henderson v. School District of Springfield R-12 is an important case because it is the first time a court has sustained this kind of legal theory, which, for many workers, signals that courts are finally taking mandatory wokeism in the workplace seriously.
The case started when two employees of the Springfield R-12 School District, Brooke Henderson and Jennifer Lumley, brought a lawsuit asserting that their First Amendment free speech rights were violated when they were required to attend a program in 2020 entitled “District-Wide Equity Training.”
The court’s description of the required “training” reads like something out of A Clockwork Orange:
The training defined “anti-racism” as “the work of actively opposing racism by advocating for changes in political, economic, and social life.”
In particular, the school district expected staff to accept its definition of “white supremacy,” which it defined as “the all-encompassing centrality and assumed superiority of people defined and perceived as white.” It instructed staff that we live in a culture “which positions white people and all that is associated with them (whiteness) as ideal.”
The training program included a variety of formats, including statements from the facilitators, videos, PowerPoint slides, interactive exercises, large-group discussions, small-group discussions, and written exercises.
At the beginning of each training session, staff were provided several documents, including one entitled “Guiding Principles.” The principles listed in this handout directed staff to “Lean into your discomfort,” and “Acknowledge YOUR privileges.”
At one point during the training, Henderson expressed her view that Kyle Rittenhouse was defending himself against rioters and that she believed he had been hired to defend a business. In response, district officials told Henderson that she was wrong and confused because Rittenhouse “murdered an innocent person” who “was an ally of the Black community.”
Following a video regarding the George Floyd incident, Lumley expressed her opinion that Floyd’s death was not a commentary on all law enforcement and that she did not believe every white person is racist. One of the trainers, told Lumley that black people cannot be racist. Lumley was then directed to “reflect on herself.”
An additional component consisted of online training modules that certain employees were required to complete on their own time. This includes seven equity-based modules: three “Social Emotional Learning” modules and four “Cultural Consciousness” modules.
The school district could track module participation and completion. To move to the next question, the pre-programmed “correct” answer had to be selected.
The “Cultural Consciousness” modules included a self-assessment checklist. Based on the responses from the school district employee, the module calculated a score indicating how “culturally competent” the employee was.
There is more, but I was getting sick to my stomach reading about it.
Suffice it to say that Henderson and Lumey later hauled the District into federal court and argued that not only were they forced to endorse speech they find offensive, but self-censored out of fear of repercussions for not towing the ideological line. But for the district court, which dismissed the case, these alleged injuries were not enough.
Enter the majority of the Eighth Circuit en banc panel, which begins its opinion with the familiar reminder from Tinker v. Des Moines School District that “neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Moving past the myriad accusations of the dissenters, who claim the case is really about the ability of the school district to take issues regarding race and discrimination seriously, the majority zeroes in on the sole issue at hand:
Were Henderson and Lumey forced to speak and or hold their tongues, implicating their First Amendment rights?
The majority answers: yes. “Contrary to the dissenters’ characterization, the facts establish more than mere disagreement with a viewpoint or the requirement that attendees act professionally. It’s about suppression of viewpoints,” and compelled speech.
While a limited victory, in that a decision on the merits of the claims will wait for another day, Henderson is still a profound step in the right direction.
Not only does this decision open the courthouse doors for similar claims, but the case will be remanded back down to the district court so the employees can continue their fight for true “anti-racism.”
That is to say, the right not be forced to be racist.
Reminder: we are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.
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Timothy R. Snowball is a Senior Attorney at the Equal Protection Project.
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