School DEI Training Appeal Poses Complex Worker Speech Questions

A federal appeals court in St. Louis on Thursday will hear arguments by two public school workers who say job training they received required them to support anti-racism theories, violating their free-speech rights.

Whether an adverse action is needed for government employees to have standing to sue under the First Amendment or whether the infringement alone is sufficient harm are among the main questions raised by Brooke Henderson and Jennifer Lumley in their challenge to a lower court‘s dismissal of their suit against Springfield Public School District. A ruling by the US Court of Appeals for the Eighth Circuit could provide clarity for public employers and employees elsewhere.

Henderson and Lumley say Springfield’s training followed an email telling staff they were required “to be equity champions.” The training instructed employees that they would receive tools to become “anti-racist educators.” Henderson and Lumley say they believe in “colorblindness” and equality and that the training instructed that White supremacy includes anyone who believes in those concepts.

Speaking during a public employer’s paid-training isn’t shielded by the First Amendment, an attorney for the Missouri School Boards’ Association, which is supporting the school district, told Bloomberg Law. But Thomas A. Berry of the Cato Institute, which is supporting the workers, said that regardless of the training context, the dispute here concerns the basic principle that a government can’t force people to support things they don’t believe in.

Other issues before the Eighth Circuit include the proper forum for challenging school policies and the permissible scope of workplace training.

Adverse Act or Infringement

There needs to be an adverse act for there to be standing to sue, Professor Bradford C. Mank of the University of Cincinnati College of Law told Bloomberg Law.

If an employee attends training, disagrees with the substance, and the trainer pushes back, “I don’t know if that alone is enough,” he said. Discomfort with training is too-broad a test, said Mank, who isn’t involved in this case.

Berry and James V.F. Dickey, an attorney for the Center for the American Experiment, which is backing Henderson and Lumley, offered a different take.

“A First Amendment violation on its own confers standing,” Dickey said. In the employment context, there often is an adverse action or other negative consequence, but that isn’t needed in free-speech cases, he said. Dickey is with the Upper Midwest Law Center.

Sometimes the negative consequences of not complying or of speaking out are clear from the context, Berry said. All that’s needed is a fear of punishment and the plaintiffs here feared repercussions “if they continued to be honest about what they believe,” he said.

Context Matters

Plaintiffs have standing to sue in federal court when they show an illegal action caused them injury. To prove a First Amendment violation, they must establish that they spoke as private citizens on a matter of public concern. Whether and how Henderson and Lumley met those tests will be central to the Eighth Circuit’s analysis.

Missouri School Boards’ Association’s attorney Keith R. Powell said an adverse consequence is required and it was lacking here. But the analysis shouldn’t even reach that point because the elements of a free-speech violation weren’t met, he said.

It all goes back to whether there was any infringement in the first place, Powell said.

According to the school district, the training’s purpose was to create a more equitable learning environment after a series of disturbing events that targeted students of color and LGBTQ+ students. Henderson and Lumley are still employed by the district, and no employees were fired for not attending or completing the training, the Springfield school district said in an appellate brief.

Considering the paid-training context, there wasn’t an infringement, Powell said. Employees weren’t speaking for themselves during the training, but for their government employer, he said. And because their speech was made to co-workers rather than the public, they didn’t speak as private citizens on a matter of public concern, Powell said.

Henderson’s and Lumley’s supporters disagree.

The speech here didn’t take place in the classroom or in front of students, William E. Trachman of Mountain States Legal Foundation said. That it occurred during training means employees weren’t performing their day-to-day jobs at the time, which diminished or eliminated the district’s authority to control their speech, he said.

And under circuit precedent, speech can be protected by the First Amendment even if it’s made privately to an employer, Dickey said.

Mission for Policymakers

First Amendment cases in the public employment context often come down to balancing government interests against employee interests, Sonja Trainor of the National School Boards Association said.

Courts have recognized school districts have a “very, very strong interest” in implementing their unique and crucial mission to educate, nurture, and prepare students based on the district policymakers’ expert choices, Trainor said.

Part of that mission is messaging, Trainor said. When school workers speak in the course of their official duties, the school district can control the message, she said. The NSBA isn’t involved in the case.

Public school employees’ disagreements with school policymakers’ choice of political messages are supposed to be addressed through the political process at school board elections, said Powell, the Missouri school boards lawyer. They shouldn’t be addressed through workplace First Amendment objections or lawsuits founded on their personal disagreement with results of that same political process, he said.

Most people have qualms about at least some of the things that happen in their workplace, Powell said. Public employees self-censor all the time, because at work they realize their job is to implement the message of the elected policymaking government body that employed them to do just that, he said.

District’s Interest Served?

But some of those on Henderson’s and Lumley’s side said there are limits on what’s permissible and beneficial when it comes to workplace training. Encroaching on free speech rights or requiring employees to support something that doesn’t really serve a legitimate government purpose goes too far, they said.

Training helps prevent harm and reduce legal liability, Dickey said. But employee rights need to be respected when “you drag in matters of public concern.” The government-speech doctrine isn’t a cover for putting discriminatory words in someone’s mouth, he said.

The compelled speech here runs close to violating federal civil rights laws, Trachman said. It instructed people that a certain group has an inherent quality or characteristic based on race, he said.

That’s disruptive and potentially illegal, Trachman said. It doesn’t outweigh the private speech interests of employees, because it doesn’t serve the public interest of making schools more efficient, he said.

Judges James B. Loken, Steven M. Colloton, and Jane L. Kelly will hear the appeal.

Southeastern Legal Foundation represents Henderson and Lumley. Ellis, Ellis, Hammons & Johnson PC represents the school district and other defendants.

The case is Henderson v. Springfield R-12 Sch. Dist., 8th Cir., No. 23-01374, oral argument 2/15/24.