Is DEI Training Unconstitutional?

It wouldn’t be if it were imposed by a private party, although there might be other problems with it. But can a government entity require its employees to assent to a series of political propositions, and to take what is effectively a loyalty oath? I don’t think so.

That’s why my organization has moved to participate in the case of Henderson v. Springfield R-12 School District, now on appeal in the 8th Circuit Court of Appeals, as an amicus. The Henderson case is horrifying, and yet typical of what is going on in contemporary America. Plaintiffs are school district employees who were required by the district to undergo “anti-racism” training. The district’s “training” was a series of Maoist struggle sessions. The evidence and allegations in the case include the following. :

1) The District commanded the employee Appellants that they “must commit to” the District’s description of equity and anti-racism;

2) The District defined anti-racism as requiring proactive advocacy against what the District defines as racism;

3) The District told employee Appellant Henderson that her views on American race relations were “confused and wrong”;

4) The District told employee Lumley that she was wrong that people can only be racist based on skin color, and her failure to acknowledge that means Lumley should engage in “additional self-reflection”;

5) Appellants’ co-workers “berated [Lumley] during training for opposing equity and anti-racism”;

6) The District told Appellants that “white people failing to speak out against racism,” as the District defines it, “constitutes white supremacy”;

7) The District required Appellants to attend the “training to receive professional development credit and financial compensation,” and that “failure to attend the training would result in less pay”;

8) The District asserted during the training that “equity and anti-racism generally require advocacy and proactivity”;

9) The District “taught that white supremacy is not just a label for the KKK—it includes anyone who believes in colorblindness or says that all lives matter”;

10) Appellants alleged and argued that the District “warned staff that denying one’s white privilege is in itself white supremacy”;

11) Appellants alleged they were literally required to speak in response to cues using survey-type responses indicating agreement or disagreement with principles of anti-racism; and,

12) Appellants alleged that they were forced to complete multiple choice questionnaires with particular answers in order to complete training modules (their preferred answers were rejected by the module).

Center of the American Experiment is represented in the case by the Upper Midwest Law Center, on whose board I serve. UMLC’s brief on our behalf argues that the school district’s “training” constitutes compelled speech in violation of the First Amendment, and also requires public adherence to what is effectively a religion. The brief points out that under the school district’s definition of “anti-racism,” anyone who agrees with the motto engraved on the United States Supreme Court building–“Equal Justice Under Law”–is a white supremacist.

The Missouri district court judge who heard this case was entirely sympathetic to the school district’s far-left policies. He not only found for the defendants, he assessed attorneys’ fees against the plaintiffs in what appears to be plain violation of the law. That issue is also on appeal.

Perhaps the dominant fact in America’s current public life is the Left’s insistence that everyone must agree, or pretend to agree, with its radical and extremely controversial views on race and gender. Such forced agreement has extraordinary consequences, such as, to name just two examples, multi-trillion-dollar “reparations” and men competing in women’s sports. The Left’s demands to compel agreement and suppress free speech must be stopped, and I hope that the Henderson case, and others like it, will strike important blows in that effort.

This is the amicus brief that the Upper Midwest Law Center will file on behalf of Center of the American Experiment:

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