Eighth Circuit Grants Rehearing En Banc as to Whether "Equity Training" Requirement for Public Employees Violates First Amendment, …

including when employees were required to "correctly" answer multiple choice questions based on the training content.

The court just agreed to this last Wednesday; here's the earlier panel decision (Henderson v. Springfield R-12 School Dist.)—which will now be reconsidered—written by Eighth Circuit Chief Judge Steven Colloton and joined by Judges James Loken and Jane Kelly:

During the 2020-21 school year, the school district required employees to attend a presentation entitled, "Fall District-Wide Equity Training." Attendees were paid for their time and received professional-development credit.

The school district provided in-person and virtual training. At the in-person training, school officials instructed the attendees on how to become "Anti-Racist educators, leaders and staff members." The district defined "anti-racism" as "the work of actively opposing racism by advocating for changes in political, economic, and social life." The presenters cautioned that actions like practicing color-blindness and remaining silent about racism perpetuated white supremacy.

The presenters stated, "We want to stress that we are not calling you as an individual a white supremacist. That being said, certain actions or statements … can support that structural system of white supremacy." The presenters also displayed an "Oppression Matrix" that categorized various social groups as a privileged, oppressed, or border group. For example, within the category of race, the matrix identified white people as a privileged social group, biracial people as a border group, and Asian, Latina/o, black, and native people as oppressed social groups. At the virtual training, the school district provided similar instruction.

Some employees were also required to complete online modules in which they watched videos, read articles, and answered multiple-choice questions relating to equity and diversity. For example, one question asked: "When you witness racism and xenophobia in the classroom, how should you respond?" Employees could select one of two options: (1) "Address the situation in private after it has passed"; or (2) "Address the situation the moment you realize it is happening." The module deemed the second option the correct answer. If the employee selected the first option, then a message appeared explaining why the choice was "incorrect." To complete the module, employees had to select the "correct" answer.

The training sessions were interactive. At the in-person training, attendees were asked to speak with one another about specific prompts related to the presentation's content. In the online training, participants were similarly required to speak with other virtual attendees. Both training sessions included an exercise called "Four Corners," in which attendees had to hold up a sign stating whether they agreed or disagreed with various prompts, such as "I believe my students or staff feel safe in Springfield" and "I believe [the school district] provides an engaging, relevant and collaborative learning and working environment.

At both training sessions, instructors displayed a slide entitled "Guiding Principles" in which one line read: "Be Professional—Or be Asked to Leave with No Credit." No attendee was asked to leave, denied pay, or refused credit because of his or her conduct during the sessions. No employee discipline resulted from these sessions.

Brooke Henderson attended the virtual training. Henderson is a Section 504 Process Coordinator. At the training, Henderson expressed her view that Kyle Rittenhouse acted in self-defense during a Black Lives Matter protest in 2020. The presenter responded that Henderson was "confused" and "wrong." Henderson alleges that after this dialogue with the presenter, she stopped speaking out of fear that she would be asked to leave for being unprofessional. She also alleges that during the "Four Corners" exercise, she responded that she agreed with some prompts solely because she feared that if she disagreed, she would be asked to leave without receiving credit or pay. Henderson also completed the virtual modules. She alleges that she selected answers with which she did not agree so that she would receive credit for the training.

Jennifer Lumley attended the in-person training. Lumley is a secretary. At the training, Lumley stated that she did not believe that all white people were racist, and that people of other races could be racist. She shared a personal anecdote about her niece-in-law, a black woman who married a white man, and how "some black people had told her she did not 'count' as black anymore." The presenter responded that black people could be prejudiced, but not racist. Lumley also stated that she did not believe that she was privileged because she grew up in a low-income household. The presenter responded that Lumley "was born into white privilege." Like Henderson, Lumley alleges that after this interaction, she stopped speaking because she feared that she would be asked to leave.

Plaintiffs sued, but the court concluded that their First Amendment rights weren't violated, because they were not punished for their speech or lack of speech:

The plaintiffs suggest … that they were punished because they were "shamed" and "forced to assume the pejorative white supremacist label for their 'white silence.'" They rely on Gralike v. Cook (8th Cir. 1999), aff'd by the Supreme Court (2001), where this court held unconstitutional a Missouri law requiring that state election ballots identify any candidates who opposed or refused to express a view on congressional term limits. We concluded that the law "threaten[ed] a penalty that is serious enough to compel candidates to speak—the potential political damage of the ballot labels." We explained that the labels were "phrased in such a way" that they were "likely to give (and we believe calculated to give) a negative impression not only of a labeled candidate's views on term limits, but also of his or her commitment and accountability to his or her constituents." The plaintiffs here argue that by associating silence and dissenting views with white supremacy during the training, the school district imposed a similar punishment.

We decline to adopt the plaintiffs' broad reading of Gralike. Unlike the State in Gralike, the school district's presenters did not assign an epithet to the plaintiffs akin to a label next to a person's name on an election ballot. Instead, they chose to "stress that we are not calling you as an individual a white supremacist," while explaining their view that "certain actions or statements … can support that structural system of white supremacy." Nor did the training program "threaten a penalty" comparable to the "political damage" inflicted on candidates who disfavored term limits or remained silent on the issue in Gralike. The plaintiffs were required to endure a two-hour training program that they and others thought was misguided and offensive. But they were not forced to wear an arm-band classifying them as white supremacists or to suffer any comparable penalty.

The plaintiffs also argue that the defendants indirectly discouraged them from remaining silent or voicing dissenting views, both during the training sessions and in their private lives…. The plaintiffs rely primarily on the presenters' guidance to "Be Professional—Or be Asked to Leave with No Credit." They also refer to statements by the presenters telling attendees to "speak [their] truth," "turn and talk" to nearby colleagues, and share thoughts with the group.

We conclude that the plaintiffs' fear of punishment was too speculative to support a cognizable injury under the First Amendment. While the presenters warned that unprofessional conduct during the session could result in an attendee receiving no credit, they never said that expressing opposing views or refusing to speak was "unprofessional." The plaintiffs' reliance on Speech First, Inc. v. Cartwright (11th Cir. 2022), is thus misplaced. In Cartwright, the court concluded that a university's policy on "bias-related incidents" objectively chilled speech in part because the team responsible for investigating these "incidents" could refer students for discipline, even if the team could not directly punish students. Critically, the university stated that the team would investigate, monitor, and refer students for discipline because of the students' speech. Here, the school district's presenters 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.

To the contrary, 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. Attendees other than the plaintiffs largely remained silent and exhibited "very low participation." Yet the plaintiffs cite no evidence that anyone was disciplined, denied pay, or refused credit after attending the training. Therefore, the plaintiffs' subjective fear that dissent or silence would be considered "unprofessional" and grounds for denial of credit was too speculative to establish an Article III injury.

The plaintiffs' alleged fear that they would be punished for failing to advocate for the school district's view of "anti-racism" in their personal lives was speculative. They cite the district's definition of "anti-racism" as "the work of actively opposing racism by advocating for changes in political, economic, and social life." They refer to a greeting at the outset of training that referred to "this significant work for our own personal and professional development." But there is no evidence that the presenters purported to dictate what employees could say or do on their own time outside of work. Nor did the trainers communicate that the plaintiffs would be penalized for making particular statements or keeping quiet in their private lives.

Of course, the same conclusions would hold true if the district's training had aligned more closely with the views of the plaintiffs. Suppose the district's "anti-racism" training had emphasized that "[o]ur Constitution is color-blind," Plessy v. Ferguson (1896) (Harlan, J., dissenting), that persons should "not be judged by the color of their skin but by the content of their character," Martin Luther King, Jr., I Have a Dream Speech (Aug. 28, 1963), and that "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1 (2007). But suppose that some employees believed that practicing color-blindness perpetuated white supremacy, and that society is stratified in accordance with the "Oppression Matrix." So long as these employees, like [plaintiffs], were not punished or threatened with punishment for remaining silent or expressing disagreement with the district's program, they could not establish an injury from required attendance at a two-hour color-blind anti-racism training session.

The court also held that requiring plaintiffs to answer online questions, indicating the "correct" answer according to the course content, wasn't an unconstitutional speech compulsion:

[I]n this type of training module, an employee's "selection of credited responses on an online multiple-choice question reflects at most a belief about how to identify the question's credited response." … [A]public employer can require employees to demonstrate as part of their official duties that they understand the employer's training materials. See Altman v. Minn. Dep't of Corr. 3 (8th Cir. 2001) ("[A] public employer may decide to train its employees, it may establish the parameters of that training, and it may require employees to participate."); cf. Janus v. AFSCME (2018) ("Of course, if the speech in question is part of an employee's official duties, the employer may insist that the employee deliver any lawful message."). But 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, so we decline to construe Henderson's completion of the modules as an injury in fact.