Appeals court hears challenge to “woke” workplace training

Attorneys sparred in a federal courtroom in St. Louis on Thursday over what may be the first lawsuit challenging controversial critical race theory concepts heard in a federal appeals court.

School employees Brooke Henderson and Jennifer Lumley contend that fall 2020 training mandated by Springfield Public Schools in Missouri violated their right to free speech by compelling them to endorse racially and politically charged statements.

The so-called “anti-racist” training included concepts the employees claim they were not permitted to disagree with—such as identifying all white people, males, heterosexuals, rich people, and Protestants as oppressors. In contrast, black people, homosexuals, and transgender people—among others—were identified as the oppressed.

In an August 2021 complaint, Henderson, who advocates for children with disabilities, and Lumley, a records secretary, challenged the training and asked the district to block the school system from requiring their attendance or taking any adverse action against them.

That argument received a chilly reception in January 2023 from U.S. District Judge Douglas Harpool, who described the employees’ arguments as “misguided,” “wholly unreasonable,” and “frivolous.” He dismissed the lawsuit and imposed attorneys’ fees of over $312,000 on the two employees, according to the appeal. That likely explains why the employees’ attorneys took the unusual step in their brief of asking the appeals court to order the case reassigned to another judge should it be sent back to the lower court.

At Thursday’s arguments before a three-judge panel of the 8th U.S. Circuit Court of Appeals, judges seemed concerned about the limits of their ruling—how finding the school’s training deficient might affect other employers’ training.

“This is training about equity and equality for students in a school system, and I’m not sure how that isn’t part and parcel of what … their mission is as a school,” said Circuit Judge Jane Kelly, an Obama appointee. “So is it your position that that kind of training for ensuring that every student gets an equal educational opportunity is not appropriate for a training session?”

Not at all, countered employee attorney Braden Boucek, counsel with the Georgia-based Southeastern Legal Foundation, which is representing the two women. “What a school district may never do, however, is compel its employees and pressure them to engage in political advocacy in their personal lives.”

Boucek pointed to a record that demonstrated employees had to write out a statement in support of “anti-racism,” one which equated a belief in color blindness—treating all people equally, regardless of color—with white supremacy.

That clearly troubled the two other judges on the panel, James Loken, a George H.W. Bush-appointee, and Steven Colloton, a George W. Bush-appointee. Both later addressed their concerns with school district counsel Tina Fowler, who insisted that employees were only required to attend the training to be paid for it, not agree with it.

“They clearly spoke their views,” said Fowler. “They weren’t afraid to speak their views, and nothing happened to them.” She pointed to the fact that neither employee had lost job or pay, that in fact no injury had occurred that would give them standing to bring a lawsuit.

“It’s an attempt to intimidate, and it may well not cause actual injury, but to me it’s highly offensive,” countered one judge, referring to the training’s implication that all white people are racist. Another asked, sounding incredulous, “Does the school board endorse this particular training involving oppression matrices and the definition of white supremacy used here?”

At least one judge implied that the attorneys’ fees assessed against the employees may need to be reconsidered. The lower court based the fee on its finding that the lawsuit was frivolous, but one judge said the lower court should have pursued more fact-finding before determining it was frivolous. However, each of the judges questioned whether there was an injury sufficient to sustain a lawsuit.

In a short rebuttal, employee counsel Boucek with the Southeastern Legal Foundation pounced on that suggestion. “This was highly-charged training, and that fact alone showed that Mrs. Henderson and Mrs. Lumley submitted a viable theory of injury.”

A bevy of Republican state attorneys general and nonprofits filed friend-of-the-court briefs in support of the employees. Their concerns were exemplified by James Dickey, who represented the Center for the American Experiment. “A First Amendment violation on its own confers standing,” Dickey told Bloomberg Law, noting that while adverse actions generally need to be shown in an employment context, a free-speech violation alone is sufficient injury to support a right to sue.

Both public and private employees have raised claims before other courts as to similar race-based training, with as yet uncertain results.

In Evanston, Ill., high school drama teacher Stacy Deemar awaits a ruling on her June 2021 federal lawsuit over the school district’s race-based programming. A motion to dismiss filed by the school district remains pending—despite having been filed nearly two and a half years ago.

And in San Diego, where human resources employee Courtney Rogers sued her employer Compass Group in July 2023 over her firing after being denied a religious accommodation to opt out of race-based training, the court docket indicates a settlement is close to finalization.

The St. Louis appeals court did not give a timetable for its ruling. During closing moments, one judge commented that it was an “interesting case and somewhat novel”—perhaps the one thing the parties could agree on.