ST. LOUIS (CN) — Two Missouri educators challenging their school district’s requirement to “commit” to anti-racism attempted to revive their First Amendment claim at the Eighth Circuit on Thursday morning.
“They believe in equality and they believe in colorblindness and they hold faith-based views that inform their belief on race, politics and the nature of human identity,” the plaintiffs' attorney Braden H. Boucek, of the Georgia-based Southeastern Legal Foundation, told a three-judge panel.
“But during the feverish political climate of 2020, [Springfield Public Schools] adopted conflicting views to theirs. And while the government is allowed to have a viewpoint, what it may never do is use a role of public employer to compel political advocacy out of its employees.”
In 2021, Brooke Henderson and Jennifer Lumley filed a federal lawsuit against Springfield Public Schools; superintendent Grenita Lathan; Yvania Garcia-Pusateria, chief equity and diversity officer; and Lawrence Anderson, coordinator of equity and diversity.
Henderson and Lumley claim the district violated their First Amendment rights by directing them to actively participate in a training on controversial topics like white supremacy and oppression; told them to “commit” to anti-racism and advocate for political and social change; and chastised them as “wrong” when they expressed their personal views on current affairs.
U.S. Circuit Judge James B. Loken, a George H.W. Bush appointee, immediately pressed Boucek on forum. After a back and forth, Loken said, “If you aren't going to tell me what's the forum and what’s the test, then that's fine.”
Boucek responded, “There is no actual balancing test here because this is a compelled speech instance.”
U.S. Circuit Judge Jane L. Kelly, a Barack Obama appointee, asked Boucek whether training employees to teach students about equity and equality was the mission of the school district.
“Is it your position, that that kind of training for ensuring that every student gets an equal education and an equal opportunity is not appropriate for a training session?” Kelly asked.
Boucek said there was a difference in this case.
“What a school district may never do, however, is compel its employees and pressure them to engage in political advocacy extending into their personal lives,” he answered. The educators also claim that this created an unconstitutional condition of employment.
The school district's attorney, Tina Gardner Fowler of Ellis Ellis Hammons & Johnson in Springfield, Missouri, said the plaintiffs were asking the court to strike down the district's lawful policies.
“That's Pandora's box," Fowler argued. "It basically means that a public employer couldn't put forth lawful policies that could instruct its employees how to appropriately handle themselves in the workplace.”
Judge Kelly pressed Fowler on the consequences of not attending the training.
Fowler said employees would not be paid if they didn’t attend or didn't act professionally during the training. The payment was supplemental, she clarified, so failure to get paid for the training would not constitute a dock in base pay.
U.S. Circuit Judge Steven Colloton, a George W. Bush appointee, followed up by asking what it meant to act professionally in the training, and whether not being paid represented an adverse employment action.
“It wasn't about keeping their jobs,” Fowler said. “It's just about being paid for training. There was never any threat that you're going to lose your job if you don't attend the training, and in fact, the record shows that there were certain employees that didn't attend the training.”
Fowler said the plaintiffs’ actions immediately after the training showed that no harm to their free speech was suffered.
“They claim that they had to hush up, but if you look at their actions, they are directly contrary,” Fowler said. “In fact, Miss Henderson, one of the plaintiffs in this case, after this training, she spoke with a board candidate objecting to the training. She said, ‘I don't agree with the principles. I do not agree with anti-racism.’”
Fowler added, “There is no subjective chill here. They clearly spoke their views. They weren't afraid to speak their views, and nothing happened to them. They never lost any type of pay. They were never reprimanded. They were never counseled. They were never spoken to. They were never hushed, nor was any other employee for that matter.”
Boucek countered that, in an email, the school district had threatened repercussions for not attending the training.
“It says the training is mandatory, and if you are not there, then your pay will be docked,” Boucek said. “That's what they were telling employees and that's what employees thought. Nobody had any realistic sense that they just couldn't come to this training and they wouldn't get paid as much.”
U.S. District Judge Douglas Harpool, who was appointed by Barack Obama, granted summary judgment in favor of Springfield Public Schools, finding the plaintiffs failed to establish a First Amendment injury and that their claims were frivolous. The district was also awarded $312,000 in fees and $3,000 in costs for defending the lawsuit.
Both plaintiffs are still employed by the district. Henderson is a 504 process coordinator, working on plans for students with special needs or disabilities that need extra support. Lumley began as Records Secretary for the SPS Special Services Department and now serves in the Analytics, Accountability and Assessment Department.
The court took the arguments under advisement and there is no timetable for a decision.
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