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Legal Forum: Diversity, Equity, and Inclusion Initiatives in Public Schools
Dr. Dave Dagley, Professor Emeritus, University of Alabama
Dr. Amy Dagley, Associate Professor, University of Alabama at Birmingham
A case involving a school district in Missouri was finally released for printing in the legal reporting system last spring, although the case had been signed by the court a year before. The case involved a decision by the school district to include in-service training in diversity, equity, and inclusion (DEI) for school district employees and a claim by two school district employees that the initiative violated their free speech rights. The case is Henderson v. School District of Springfield R-12, 650 F. Supp. 3d 786, 421 Educ. L. Rep. [469] (W.D.Mo. 2023), and it is in part the subject of this commentary.
Springfield Public Schools (SPS) is an urban school district in Springfield, Missouri, with approximately 24,000 students from a variety of cultures. The school district at some point decided to include professional development for school employees regarding the themes of “equity” and “anti-racism.” The training had two parts, a training session and an online module with corresponding multiplechoice questions. The training session included handout materials, videos, and small and large group discussions and could be accomplished online or in a face-to-face session. The online module presented material, followed by a multiple-choice question. Once the question was answered, the answer was graded immediately with a “Correct” or “Incorrect” marking. Two employees objected to the training and some of the concepts covered by the training and sued the school district. The plaintiffs were a secretary who had begun her employment in the special services department and a coordinator who worked on Section 504 plans for students in the district. The defendants included the school district, the school superintendent, and two administrators working in the school district’s office of diversity and equity.
The plaintiffs brought three claims arguing unconstitutional violation of their speech rights under the First Amendment. The first claim was that the professional training compelled speech with which the plaintiffs disagreed, chilled the plaintiff’s own speech, and discriminated against them for the content of their speech and the viewpoints they held. The second claim was that the online multiplechoice questions compelled speech, chilled their speech, and discriminated against the content of their speech and their viewpoint. The third claim was that the professional training was an unconstitutional condition of employment. The plaintiffs argued that they suffered injury when the school district presented them with three choices: (1) say what the school district wanted to hear by affirming antiracism and equity; (2) refrain from speaking and risk being labeled white supremacists; or (3) speak out and risk losing professional development credit and pay. The plaintiffs sought nominal damages, a judgment declaring the training unconstitutional, and an injunction requiring the school district to stop the training. The school district filed a motion for summary judgment on grounds that the plaintiffs did not have standing to have their case heard in court.
The court’s analysis observed that the school district’s professional training program existed to help employees’ understanding of sensitivity to race issues likely to be confronted by minority students served by the schools in the school district. The court wrote that the plaintiff employees felt they should not have to listen to, learn, or follow the school district’s description of equity and anti-racism discussed in the training because they personally disagreed with the policy. The court then responded that in any policy, and especially with one involving race, a government entity like a school district would find it difficult to adopt a policy approach that all employees would find agreeable. The school district has a right and duty through its elected school board and its superintendent to determine a single, unified, districtwide approach to policy issues. The court’s view was that “the training relates more to enhancing awareness of racial issues and suggesting an increased sensitivity to deal with issues of discrimination when identified” rather than that the school district “expected employees to personally believe or appreciate the policy, approach, or underlying principles.” 650 F.Supp. 3d 786, 802.
Significantly, the court reflected that the school district, as a public employer, might violate the Constitution if it somehow required the employees to articulate a specific message on issues of public interest that are unrelated to an employees’ official duties. That did not happen in this case. No one was retaliated against by the school district for their speech, though there was surely the expected exchange of ideas (sometimes loudly and bitterly expressed) where professional employees disagree with a policy or practice. Perhaps most importantly, there was no evidence of the plaintiffs being injured by the operation of the policy. The court noted that no one failed to receive credit, including extra salary, for participating in the training, even if they argued for their own viewpoint in the training sessions, or answered questions differently than the “Correct” response in the online multiple-choice questions. An injury-in-fact is an essential element in showing that a plaintiff has “standing,” the right to be heard in a court of law. Because there was no evidence of an injury to the plaintiffs, the court granted summary judgment to the school district for lack of standing.
The case described above occurred in Missouri, which had not yet adopted an act with respect to diversity, equity, and inclusion (DEI) initiatives. Therefore, at the time the school board adopted its policy, it was free to make a policy about DEI without a directive from the Missouri legislative body, its General Assembly. Such a policy in Alabama would be in the same situation, at least until October 1, 2024. In its 2024 session, Alabama’s Legislature adopted the Divisive Concepts Law (Act 2024-34), which takes effect on October 1, 2024. 2024 Ala. Acts S.B. 129.
Alabama’s Divisive Concepts Law prohibits public universities, state agencies, and local public-school boards from sponsoring DEI programs as they are defined in the bill. The Divisive Concepts Law defines DEI programs as “any program, class, training, seminar, or other event where attendance is based on an individual’s race, sex, gender identity, ethnicity, national origin, or sexual orientation, or that otherwise violates this act. Alabama’s Divisive Concepts Law also prohibits any state agency, local board of education, or public institution of higher education to direct or compel a student, employee, or contractor to personally affirm, adopt, or adhere to a divisive concept. The Act lists eight “divisive concepts” with the first listed as, “that any race, color, religion, sex, ethnicity, or national origin is inherently superior or inferior.” (Act 2024-34, Section 1(2)a).
With adoption of the Divisive Concepts Law, Alabama school boards that had already adopted a policy related to DEI will need to harmonize their policy with the newly adopted statewide policy. Local school boards are generally free to act, until higher authority (the State Board of Education or the Legislature) directs. When higher authority directs a policy decision, the local school board cannot act in opposition to that policy; yet, if its actions do not contradict the policy from higher authority, then it may continue its local policy.
Since 2021, at least eleven states have adopted DEI measures impacting public school boards, public institutions of higher education, or both. Having an inclusive school environment is important for student growth and achievement, and failure to grow such an environment leaves school officials at risk of violating state or federal discrimination law or violating state anti-bullying and harassment requirements. The proper balance of these possibly contradictory requirements will be difficult to achieve.
