Appeals Court Rejects Challenge to DEI Training

Diversity, equity, and inclusion training at a public school did not violate two employees’ First Amendment rights, according to a recent appeals court decision. In Henderson v. Springfield R-12 School District, the U.S. Court of Appeals for the Eighth Circuit affirmed the dismissal of a constitutional challenge to the training. The court decided that the plaintiffs lacked standing because they did not suffer a cognizable injury-in-fact. ABA Litigation Section leaders agree with the decision, highlighting the need for plaintiffs to show a compelling constitutional injury to succeed.

Plaintiffs Argued Training Violated First Amendment Rights

A school district’s Fall District-Wide Equity Training is at the center of this dispute. The training addressed the general concept of anti-racism, which the school district defined as “the work of actively opposing racism by advocating for changes in political, economic and social life.” Organizers told participants to be professional or leave without credit for completion.

Two employees filed a lawsuit against the school district and school officials in the U.S. District Court for the Western District of Missouri. The plaintiffs brought claims under 42 U.S.C. § 1983, arguing that the training violated the plaintiffs’ First Amendment rights. First, they alleged it chilled their speech because the school district’s admonition that participants be professional or risk losing participation credit amounted to a threat to keep them silent.

Second, the plaintiffs argued that the training compelled speech because they would be labeled as white supremacists if they did not agree with or speak about the racial issues taught. They held this belief because they said instructors taught that remaining silent on racism furthers white supremacy. According to the plaintiffs, the school district’s association of silence with white supremacy effectively shamed them with a pejorative label.

One of the plaintiffs brought a separate claim of compelled speech. She argued that multiple-choice questions during a training module required her to select answers she thought the school district preferred over the ones she personally believed to be true. If she selected an incorrect answer, she alleged the district would prompt her to try again until she selected correctly.

The district court granted summary judgment in favor of the defendants, holding that the plaintiffs lacked standing to sue. The court went a step further, holding the lawsuit was frivolous and awarding attorney fees to the defendants.

Court Holds No Injury-in-Fact, No Standing

On appeal, the Eighth Circuit found that the plaintiffs did not sustain a cognizable injury on any of their claims. In rejecting the chilled speech claim, the court held that the plaintiffs grounded their arguments in a speculative fear of suffering sanctions. Falling short of meeting the standard, the plaintiffs needed to show that they self-censored “to avoid a credible threat of prosecution or other adverse action.”

The court noted that the instructors did not “state or insinuate that an employee’s silence or dissenting views would be considered ‘unprofessional’ and a basis to deny credit for attendance at the training.” It determined that the plaintiffs experienced, at most, “pushback” by the instructors, but were never asked to leave or called unprofessional. The court went on to emphasize that the plaintiffs received full pay and credit for attending the training session. Essentially, they “were required to endure a two-hour training program that they and others thought was misguided and offensive,” the court summarized.

Similarly, the court found that the training did not compel speech. According to the court, a plaintiff establishes injury under this theory when the government punishes or threatens to punish protected speech by regulatory, proscriptive, or compulsory action. The court ruled that the plaintiffs’ allegations did not meet this threshold because the instructors never actually labeled the plaintiffs as white supremacists. The training, as the instructors contended, was simply to provide education on actions that may support the “structural system of white supremacy.” Under these facts, the court found no injury.

Additionally, the court disagreed that the district’s testing on training materials compels speech. It considered that a public employer may require exams to determine whether an employee understands training materials. As a result, it decided that the plaintiff’s exam simply tested her understanding of the material and did not force agreement with a specific belief system.

The court reversed the district court’s decision, however, on the award of attorney fees, determining that the lawsuit was not frivolous. “The matter of an employee’s standing to sue in this context is fairly described as an issue of first impression with room for plausible disagreement, although we ultimately agree with the district court’s decision on that issue.”

Section Leaders Explain the Need to Show Compelling Constitutional Injury

“My gut reaction is that this panel on the court of appeals made a good decision,” says Carmen D. Caruso, Chicago, IL, Chair of the Litigation Section’s Section 1981 Subcommittee of the Civil Rights Litigation Committee. “I don’t see how courts can get into the business of granting relief to the people who didn’t speak because they claim they were intimidated, unless there is a compelling case,” he continues.

“You cannot just say your feelings were hurt. There has to be something you can point to that says that an action was taken against me that violated my rights,” explains Elizabeth S. Fenton, Wilmington, DE, Co-Chair of the Section’s Mental Health & Wellness Task Force. “Somebody is going to find something to be offended about in pretty much anything that an employer does, whether they are a public employer or a private employer,” she observes.

Rehearing En Banc

On November 27, 2024, the Eighth Circuit granted rehearing en banc. The court vacated the opinion and judgment. Oral arguments took place on January 15, 2025. As of the publication of this article, a decision remains pending.