Missouri educators challenge district's anti-racism requirements before entire Eighth Circuit

ST. LOUIS (CN) — Two Missouri educators challenging their school district’s requirement to “commit” to anti-racism attempted to revive their First Amendment claims before the Eighth Circuit Court of Appeals en banc on Wednesday.

In 2021, Brooke Henderson and Jennifer Lumley sued Springfield Public Schools, its superintendent Grenita Lathan, its chief equity and diversity officer, Yvania Garcia-Pusateria and Lawrence Anderson, its coordinator of equity and diversity, claiming the district violated their First Amendment rights by directing them to actively participate in a training on topics like white supremacy and oppression.

They also say the district 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.

“Ms. Henderson remembered being told that she can’t sit on the sidelines and be silent,” the plaintiffs’ attorney Braden H. Boucek, of the Georgia-based Southeastern Legal Foundation, told the court. “She must be an ally and take action and this hints at how the district compels speech in a second way, which is a suggestion that they needed to go out and become political allies for anti-racism if they hope to hold their jobs.”

The school district’s attorney Ransom A. Ellis III, of Ellis Ellis Hammons & Johnson in Springfield, MO., pushed back on the threat to plaintiffs’ jobs, noting specifically that Henderson was a vocal critic of the training at a public school board meeting before filing the lawsuit.

“Nothing happened to these two plaintiffs, nothing,” Ellis said. “Ms. Lumley, after she took this program, was promoted."

A three-judge panel of the appeals court heard arguments in February 2024 and ultimately sided with the defendants, finding that since the plaintiffs were not formally disciplined that their fear of punishment was speculative. The decision prompted the appeal to the entire en banc court.

Boucek took aim at the panel’s decision, claiming that it should not have found there were no consequences for his clients.

“What the evidence shows is that they were both shown the graphic which bluntly characterized white silence as a form of white supremacy comparable to things like the swastika, lynchings and cross burnings,” Boucek said. “This was accompanied by no qualifications whatsoever. And on top of it, it included such a direct command to go out and engage in political activity.”

U.S. Circuit Judge Jane Kelly, a Barack Obama appointee, asked Boucek if he believed the district could engage in this type of training.

“I think it’s within permissible bounds of training to undertake,” Boucek said. “I think it’s deeply divisive and unwise, but that doesn’t make it a First Amendment violation. What crossed the First Amendment line is that it required them to participate in a topic of discussion of their own choosing under penalty of being pejoratively labeled.”

Ellis countered that there were topics plaintiffs did not participate in discussion during the training and were not required by the trainers to share their thoughts. On the contrary, he said both plaintiffs were not shy about discussing other topics.

“The district court found that [Henderson] talked at length about the [Kyle Rittenhouse] shootings and that whole process. And there was a discussion about that. She had no problem at all stating what she was going to say. And as far as I know, nobody pushed back on it,” he said.

U.S. Circuit Judge David Stras, a Donald Trump appointee, pushed Ellis on whether the threat of getting kicked out of the seminar and not being paid for it was an example of chilling plaintiffs’ speech.

“Going with reasonable, it’s hard for me to believe that it’s reasonable that somebody turns on and off being chilled,” Ellis said. “You’re either chilled or you’re not chilled. And in her case, [Henderson] throughout the process of the meeting, a two-hour session, she spoke about matters that were controversial, and people spoke against it.”

The court took the arguments under advisement and there is no timetable for a decision.

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 works in the Analytics, Accountability and Assessment Department.

U.S. District Judge Douglas Harpool, a Barack Obama appointee, initially 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.

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