Diversity-training programs purport to teach participants how to be better colleagues to people from different backgrounds and to eliminate unconscious bias and make workplaces more welcoming. But in too many places, these trainings\u2014and the broader DEI structures of which they are part\u2014have instead mandated ideological conformity, enforced with the leverage every employer holds over its workers.<\/p>\n
That\u2019s why the U.S. Eighth Circuit Court\u2019s en banc (all-judge) decision in <\/a>Henderson<\/a> <\/a>v.<\/a> <\/a>Springfield R-12 School District<\/a> matters. Over two years ago, I filed an amicus brief<\/a> for the Manhattan Institute in support of the plaintiffs, but it took until the end of last month for the court to restore a basic proposition that DEI bureaucracies have tried to wish away: the First Amendment doesn\u2019t stop at the HR department.<\/p>\n Finally, a reason to check your email.<\/p>\n Sign up for our free newsletter today.<\/p>\n In 2020, the Springfield, Missouri, school district ordered employees to attend a \u201cFall District-Wide Equity Training.\u201d Participants were told to \u201clean into your discomfort,\u201d \u201cacknowledge YOUR privileges,\u201d and \u201cspeak YOUR truth.\u201d But the most revealing \u201cguiding principle\u201d was a warning that made clear what kind of \u201cconversation\u201d this would be: \u201cBe Professional\u2014Or be Asked to Leave with No Credit.\u201d That \u201ccredit\u201d wasn\u2019t symbolic; employees understood it as tied to pay.<\/p>\n The training featured a slideshow and a series of cartoon videos about \u201csystemic racism<\/a>\u201d and \u201cunderstanding white supremacy<\/a>.\u201d Attendees were told that \u201csystems of oppression\u201d were \u201cwoven\u201d into the \u201cvery foundation of America,\u201d and that white supremacy is a \u201chighly descriptive term for the culture we live in.\u201d Trainees were directed to break into small groups to discuss these concepts before returning to a larger group discussion, where they were told that, if they didn\u2019t speak, they would get called upon.<\/p>\n The district supplemented this program with online modules that were less discussion than catechism. Employees had to select preprogrammed \u201ccorrect\u201d answers. One screen instructed: \u201cIncorrect! This is not suggested guidance. It is required policy and job responsibility.\u201d<\/p>\n The training closed with an \u201canti-racist solo write,\u201d in which trainees were expected to write out what steps they would take to become \u201canti-racist.\u201d The point wasn\u2019t to teach staff about applicable law but to get them to agree to contested ideological claims.<\/p>\n Two employees, Brooke Henderson and Jennifer Lumley, said they self-censored during the training and, in Henderson\u2019s case, were compelled to adopt the district\u2019s preferred answers. They sued. The district court dismissed their claims for lack of standing and then did something even more chilling: it charged them an eye-popping $312,869.50 in attorney\u2019s fees for frivolous litigation. On appeal, an Eighth Circuit panel affirmed the dismissal but reversed the fee award.<\/p>\n The en banc Eighth Circuit reinstated the lawsuit, in a careful decision that should become a guide for similar challenges. Judge Ralph Erickson begins with a reminder: \u201cIt is important to note at the outset what this case is not about.\u201d The court isn\u2019t grading the district\u2019s politics or even deciding whether all DEI trainings are unlawful, but whether the plaintiffs here alleged a real injury in which the government created conditions that predictably chill or compel speech.<\/p>\n On chilled speech, the majority recognizes what anyone who has sat through these sessions knows: \u201cprofessionalism\u201d is often a euphemism for not contradicting received orthodoxy. When a public employer warns that you can be denied credit for required training\u2014and you reasonably infer that dissent will be treated as \u201cunprofessional\u201d\u2014the pressure is not hypothetical. The court reiterates: \u201ca plaintiff is not required to first suffer a consequence before she may bring a claim.\u201d<\/p>\n On compelled speech, the opinion confronts the reality of those \u201ccorrect answer\u201d modules. A format that prevents employees from proceeding unless they pick the government-approved answer \u201cforced acceptance or adoption of the school district\u2019s views.\u201d That\u2019s the line between legitimate instruction and unconstitutional compulsion. Government can train employees on lawful duties and express its own views; it cannot demand that private citizens agree with those views as the price of employment.<\/p>\n Then there\u2019s the fee award. Fee-shifting is supposed to be rare, because it turns civil-rights enforcement into a game of Russian roulette for the plaintiff. In one sentence, the court dismantled the district court\u2019s attempt to make an example of these plaintiffs: \u201cthe standing issues presented in this case are by no means frivolous or groundless.\u201d That matters as much as anything else here. DEI regimes don\u2019t just chill speech in the training room; they chill it in the courthouse.<\/p>\n More broadly, Henderson is another important step in the pushback against DEI. It doesn\u2019t outlaw training about discrimination. Nor does it forbid schools from pursuing equal opportunity. What it does\u2014properly\u2014is draw a constitutional line to prevent DEI demands from becoming ideological tests. As the majority puts it, \u201cIt\u2019s about suppression of viewpoints.\u201d<\/p>\n Public schools should model the robust exchange of ideas they claim to teach. They can\u2019t do that while running mandatory programs that treat dissent as misconduct. The Eighth Circuit has now said: if you want employees\u2019 agreement, persuade them. That\u2019s how free citizens\u2014and schools\u2014should work.<\/p>\n Photo by: Deb Cohn-Orbach\/UCG\/Universal Images Group via Getty Images<\/p>\n