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ACLU joins conservatives to defend teachers fined $300k for challenging antiracism training

Obama-appointed federal judge's reasoning is like "equating pineapples with pine trees—the same prefix does not make them the same," cross-ideological brief says.

Published: May 25, 2023 11:46pm

Two Missouri teachers forced to pay over $300,000 for unsuccessfully challenging the constitutionality of their school district's compelled antiracism training are getting support from a surprising source: the state affiliate of the ACLU.

The progressive group joined with conservative and libertarian groups that represent civil rights plaintiffs without "deep pockets," asking the 8th U.S. Circuit Court of Appeals to overturn a lower court ruling that ordered Brooke Henderson and Jennifer Lumley to pay Springfield Public Schools' claimed attorney's fees for filing their lawsuit.

"Uncritically awarding government officials hundreds of thousands of dollars defeats the purpose of our fundamental civil rights statutes," scaring victims of modest means away from filing lawsuits to vindicate "vital constitutional protections," according to the friend-of-the-court brief signed by the Americans for Prosperity Foundation, Alliance Defending Freedom, ACLU of Missouri and Foundation for Individual Rights and Expression among others.

The 8th Circuit's precedent "does not even allow sanctions, much less attorney fees to defendants" in so-called Section 1983 lawsuits against public officials for civil rights abuses, "in cases involving difficult arguments related to complex areas of law," according to a separate brief by Minnesota's Center of the American Experiment in favor of the teachers.

Briefs by other groups challenged the merit of the ruling itself and the impartiality of U.S. District Judge Douglas Harpool, a longtime Democratic elected official in Missouri appointed to the bench by President Obama, who claimed the suit "trivializ[ed]" and used his court for "judicial activism."

Harpool sounded "more like a legislator than a judge" and "essentially invited defendants to file a fee motion … an extreme outlier" in related jurisprudence, according to the joint brief by the Institute for Free Speech and Manhattan Institute.

The judge's declarations "serve as a warning to other putative civil-rights plaintiffs not to challenge the ideology of antiracism, especially if they work in public schools," they wrote, asking for reassignment upon remand. "Perhaps Judge Harpool misperceives the nature of antiracism or is himself sympathetic to its creed or ideology."

Best known for defending the rights of neo-Nazis to march through a Chicago suburb full of Holocaust survivors, the ACLU abandoned its content-neutral defense of free speech after blowback for representing the organizer of the Charlottesville "Unite the Right" rally in 2017.

But it has since occasionally joined with ideological opposites to defend broader legal principles affecting speech, including a Supreme Court brief against a college that sought to moot a First Amendment lawsuit by changing the policy it used to censor a student evangelist. 

The high court sided with the student, who eventually received an $800,000 settlement. The ruling is cited in the ACLU's new joint brief.

Upholding Harpool's fee award would broadly harm students and parents – historically common victims of unconstitutional actions that "inflict real injury but for which damages are low," who have a limited window to sue and can rarely afford private education, the cross-ideological groups wrote.

It would also worsen a widespread judicial challenge, they said: "recruiting attorneys in private practice to represent prisoners in Section 1983 cases" who would otherwise poorly represent themselves.

Congress passed a law restoring the discretion of federal courts to award attorney's fees to Section 1983 plaintiffs after the Supreme Court rescinded the practice, showing how important the "private attorney general" doctrine is to lawmakers, the brief says.

The ideological odd couples mocked Harpool for conflating "adjudication of compelled political expression," in their words, with "injecting the court into politicized controversies," in his words.

"This is like equating pineapples with pine trees—the same prefix does not make them the same," the brief states. 

The judge also did a "bare-bones" fee analysis before giving the school district the full amount it sought, the groups said. "If the district court were correct in its conclusions that there was no factual or legal basis for the case, then what would justify awarding fees for 1,538.6 hours of work?" 

Not only were the teachers' claims neither "frivolous" nor "unfounded," as required to award fees to Springfield Public Schools, but their suit "should have hardly been surprising," according to the Institute for Free Speech-Manhattan Institute brief. 

"The school district, after all, asked its employees to dispute a foundational concept of American society and government" — colorblindness — "and to do so in the course of violating some of our most basic laws," they wrote. It told Henderson and Lumley to "write down what they will do to adopt antiracism … akin to an ideological loyalty oath" and no different from asking employees "what they will do to become a better Christian."

Parents Defending Education told the appeals court that if Harpool's "legal errors" are upheld, "K-12 students throughout the Eighth Circuit can be forced to 'mouth support' for school officials’ preferred views."

The parent membership group faulted the judge's conclusions that the teachers demonstrated no "cognizable injury" because the training "did not literally force them to speak under threat of discipline" and was not formalized in a district policy. 

The district admitted it "required" their attendance, refused to give them credit unless choosing answers at odds with their views, ordered them to "commit" to the district's views and told them that even silence made them "complicit in white supremacy," the brief says. The fact that the teachers "briefly" shared their views does not remove the chilling effect of administrators rebuking them, after which the teachers held their tongues.

Harpool inexplicably ignored the two conditions for demonstrating a Section 1983 claim in the absence of a formal policy or "custom," according to the brief: "a widespread practice that is so permanent and well settled" it's functionally equivalent, or actions by "a person with final policymaking authority.”

Unlike sexual harassment training, which is intended to "fulfill true legal compliance requirements and to address real liability risks in the workplace," antiracism training "tells employees to reject prevailing constitutional law" and uses "positions of authority to force political conformity," the Center of the American Experiment brief says.

The administrators' documented rebukes to the teachers are "more direct and overt incidents than the subtle pressure of being silent during a public prayer endorsed by a school district," the think tank said, referring to a Supreme Court ruling against clergy-delivered prayer at high school graduation.

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