Judges question $300k fine on teachers challenging antiracism training, suggest training is legal

Governments that require their employees to undergo highly ideological training may have breathed a sigh of relief after Thursday's 8th U.S. Circuit Court of Appeals hearing in a First Amendment case brought by two educators against their Missouri school district.

But the oral argument also suggested that governments might want to settle before their legal bills run up.

The three-judge panel seemed disinclined to overturn a lower court that upheld Springfield Public Schools' antiracism training, which requires employees to discuss their place on an "oppression matrix" and advocate for "changes in political, economic, and social life."

The conditions of the training, including a threat to dock the pay of teachers who were not "professional" during the session, troubled the two appointees of President George W. Bush and one of President Barack Obama, however.

They were also highly skeptical that teachers Brooke Henderson and Jennifer Lumley should have to pay the district more than $300,000 in legal fees. 

After summary judgment for the district, U.S. District Judge Douglas Harpool approved the full fee award on the grounds that the suit was so weak it "trivializes the important work of the federal judiciary," which united the left-leaning ACLU and conservatives in opposition.

The fact that it took legal discovery to determine Henderson and Lumley suffered no "injury in fact" is "highly relevant to attorney's fees," Chief Judge James Loken said. "That means as pleaded it was not frivolous" as Harpool found. 

"This training seems to be unprecedented" in terms of court cases with similar factual circumstances, meaning the teachers couldn't have known a judge would rule it wasn't compelled speech, Judge Steve Colloton said.

The Foundation for Individual Rights and Expression, which joined the ACLU friend-of-the-court brief against the fee award, filed a similar lawsuit against California community colleges on behalf of six professors for forcing them to "endorse" antiracism in their teaching.

The civil liberties group is also taking on a Michigan school district for forcing students to remove their "Let's Go Brandon" sweatshirts, referring to the sanitized version of a profane protest chant against President Biden.

Southeastern Legal Foundation lawyer Braden Boucek, representing the Springfield teachers, endured a barrage of hostile and sometimes sarcastic questions from Loken, identified as a First Amendment foe on another litigant's protest website.

The judge twice mocked the lawyer for relying on offhand remarks in judicial opinions for his arguments. "There's nothing easier in the First Amendment than to find friendly dicta," Loken said. "Frankly I'm not persuaded" the district committed "actionable coercion."

The 83-year-old judge asked Boucek to repeat himself several times and seemed unfamiliar with the precedents the lawyer cited from SLF's brief, including last year's 303 Creative, which prohibited Colorado from forcing a Christian to design a same-sex wedding website.

Loken marveled that neither the parties nor Judge Harpool had done a First Amendment "forum analysis" to determine which legal standard should apply to a teacher training. "We can't do this case without a forum analysis," he said.

Boucek said the Supreme Court's Mansky decision on nonpublic forums was mostly on point but "really doesn't determine the outcome" because compelled speech isn't governed by a "balancing test." 

Loken shot back "give me a compelled speech [sic] where nothing was compelled in public." He compared the training to what instructors do to students "all the time": asking them to argue a position with which they disagree.

Colloton said Boucek's argument could tie his own hands. If he tells a clerk "draft an opinion on this case that's affirming or reversing, even though you disagree with it," on a "matter of public concern," the clerk could then refuse it as compelled speech.

Kelly and Colloton asked why the training wouldn't qualify among "official duties" of the teachers. Promoting equity is "part and parcel" of the district's mission and training ensures that "every student gets an equal education," Kelly said.

The district compelled employees to engage in "affirmation" of antiracism "extending" into their personal lives, including an "antiracist solo write" that "can only be construed as a demand to go out and engage in the district's preferred politics," Boucek said.

This is impermissible "unlawful pressure" regardless of "whether it succeeds," he said. The question is whether a target's fear of punishment is "imaginary." 

The 8th Circuit's own precedent says "coercion does not require [...] even the threat of punishment," he said, citing another case Loken didn't recognize. It relied on a Supreme Court ruling against a commission with no power to enforce the obscenity warnings it sent bookstores.

The 11th Circuit blocked a university's bias response policies, finding that labeling speech offensive "let alone hateful" is a form of intimidation that could cause a reasonable person to self-censor, Boucek said. 

But his clients weren't silenced, Kelly responded, suggesting Boucek was setting up an injury-in-fact standard that boils down to "I'm afraid." 

She challenged his interpretation of a training slide that construed white silence as an "endorsement" of white supremacy. "I think they were sometimes saying, well, 'why don't you sit and reflect on this?'" Kelly said. Loken found rare common cause with Boucek on the slide, calling it "an attempt to intimidate" even if it does not "cause actual injury."

The judges' questions to district lawyer Tina Fowler focused on the consequences advertised to the teachers if they didn't attend the training or were removed for unprofessional conduct, a term the district never defined.

Fowler said they were never punished for opposing antiracism or told they had to "communicate these things in their private lives," as Colloton asked, and clearly were not "hushed" because they kept speaking out.

The training was intended to show white teachers that "someone could perceive" their silence as white supremacy, not to call them white supremacists, the lawyer said.

She warned the judges they would be the first court to strike down lawful workplace discrimination training for employees and open "Pandora's Box," as Judge Harpool feared, if they sided with the teachers.

Fowler fouled up when she emphasized teachers wouldn't be docked pay for non-attendance, or leaving the session early, because they get "supplemental pay" to attend training through their collective-bargaining agreement. 

That would be adverse action if teachers were forced to leave for unprofessional conduct in the eyes of the trainer, Colloton said. The undefined term is either bad or "has no meaning," Loken said. The term, whatever it means, is not based on viewpoint, Fowler responded.

Teachers received an email calling the training "mandatory" and telling them "your pay will be docked" if they don't attend, Boucek said when offered time to respond to Fowler. The "imprecision in a speech policy" – here, the unknown meaning of "professional" – makes the chilling effect worse, he said.

A "very revealing email exchange" showed one of the employees "cried in response" to the trainer dismissing her convictions, contradicting the district's claim that only Henderson and Lumley objected, Boucek said.