A reckoning for woke workplace training

On Wednesday morning, Brooke Henderson, a Springfield, Mo., special education teacher, waited in a St. Louis hotel for the full 11 judges of the 8th U.S. Circuit Court of Appeals to rehear her case. In a rare move last year, the court threw out its own panel’s unanimous ruling in the lawsuit that Henderson and her colleague Jennifer Lumley filed over three years ago contesting controversial “anti-racist” training mandated by their school district.

“They said that to believe in color blindness was equal to being a racist or a white supremacist,” Henderson told me Wednesday about the training. “I look at every student as a student, and a student that has an opportunity to learn and to grow and to be great and fantastic. This asked me to look at students based on the color of their skin and to treat them differently.”

During Wednesday’s arguments, attorneys argued over whether the district employees experienced harm from the training, which echoed material that spread virally through school districts after the death of George Floyd and the protests and riots of the summer of 2020. Judges pushed for details about the district’s response to the teachers’ complaints but did not indicate how they might rule in the case.

According to the complaint, filed in August 2021, the training included an “Oppression Matrix” that invited participants to identify their “privilege.” It identified white people, men, heterosexuals, rich people, and Protestants, among others, as oppressors. It labeled slogans such as “all lives matter,” “color blindness,” and the Trump campaign slogan “make America great again” as “covert white supremacy.”

In an interview before the hearing, Henderson reiterated that she and other participants were not permitted to disagree with the content in the training. The district told them that their disagreement would be deemed disrespectful, and if they opted out of the training, the district would dock their pay.

The administration required not only attendance but participation on trainers’ terms. “They told us if we didn’t talk, that they would call on us,” she said. “And then when they called on us, or when we offered to talk, they told us we were wrong and confused.” The lawsuit states that when some of the other participants yelled at them, trainers did not intervene.

She told me she was hopeful about the appeal. Her hope is not unfounded. Three of the 11 circuit judges who filed into the courtroom on Wednesday issued a decision in September that upheld a lower court’s ruling dismissing her case for lack of standing. Judges concluded that since the school district did not fire, demote, or dock her pay because she disagreed with some of the content of the training, she had no injury that merited a lawsuit.

But in December, the full court ordered a do-over. Assuming the three judges on the original panel do not change their minds, six of the eight remaining judges will have to agree to overrule the district court opinion and reinstate the lawsuit.

In his opening salvo, Braden Boucek, an attorney with the Georgia-based Southeastern Legal Foundation, restated some of the pressure placed on trainees and the punishment threatened by noncompliance.

One judge pressed him as to what made this training different from a third-year law student in a trial advocacy course who is required to argue a position he finds objectionable. Isn’t that the same thing, he asked?

No, Boucek argued. “This is a demand that they adopt a political orthodoxy, not just represent a viewpoint as part of their job duties,” he said. He added that the test of whether the speech is something that can be required of the employee by the government is whether it is something that is ordinarily within the job duties of this particular employee.

“Nobody thinks that it is the job of a secretary and a 504 process coordinator to offer up their views on what the death of George Floyd says about America,” Boucek said. He added that it was not within the job duties of any educator to advocate for the brand of politics adopted by the school district.

More than one judge grilled school attorney Ransom Ellis III over his dismissal of consequences to the employees in his response.

“Nothing happened to these people,” Ellis repeated more than once. He admitted that the training may not have been the most advisable and had long been discontinued, but he insisted that because both Henderson and Lumley spoke up in disagreement, their speech was not chilled.

One judge pushed back. “The trainers did not correct or stop the yelling at [Lumley] by the participants,” he said. “Wouldn’t that send a message to the person that only certain types of speech are acceptable and that if you want to be respectful, you have to toe the line?”

In a brief rebuttal, Boucek answered Ellis’ argument that his clients suffered no injury by hammering home the labeling they endured. “Calling somebody a ‘white supremacist’ is a significant sanction in the professional setting,” he argued.

Kimberly Hermann, executive director of the Southeastern Legal Foundation, pointed to a fact in the record not raised in court. “Principals at the schools were essentially going to be monitoring whether or not they were acting as anti-racist,” she told me. “So there is that additional pressure point that, if you know that there’s somebody in every school building making sure that you’re walking and talking this way every single day, there is going to be a fear that’s attached to that.”

Organizations including Alliance Defending Freedom and the Foundation for Individual Rights and Expression filed friend-of-the-court briefs in support of the employees. Led by Missouri Attorney General Andrew Bailey, 14 states also filed as amici in the educators’ support.

Henderson has continued to work for the school district as the lawsuit winds through the courts.

“A lot of people that agree with me aren’t willing to speak up because they’re too scared,” she said. “But the people that are against you, they’re not afraid to speak up. This is not where I thought I would be, but I feel like God gave me a gift and that to stay in when it would have been easier to leave is the right thing to do, because I want to continue to make a difference for kids.”

Henderson said that while challenging the training has been difficult, the ordeal has strengthened her faith in God.

“When this started and when this was happening, there were a lot of questions like, ‘Why, God, is this happening?’” she said. Her voice cracked with emotion. “I was scared of what was going to happen to the future for my grandkids.” But she told me she had seen God work miracles and answer prayers as the legal process unfolded.

“I know that hope is not in a man,” she said. “We have to put our faith in God. But I believe that He will answer prayers, even if it seems like it’s a long time.”