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Bloomberg Law: School DEI training appeal poses complex worker speech questions

headshot of Sherry English By Sherry English
3 minute read February 19, 2024

If an employee believes that the job training they received requires them to support anti-racism theories, does that violate their free-speech rights? Perhaps. A federal appeals court in St. Louis heard arguments last week by two public school workers who believe so.  At the heart of the issue is whether an adverse action is needed for government employees to have standing to sue under the First Amendment or whether the infringement alone is sufficient harm are among the main questions. A ruling by the US Court of Appeals for the Eighth Circuit could provide clarity for public employers and employees elsewhere.

Professor Brad Mank

Professor Brad Mank

“There needs to be an adverse act for there to be standing to sue”, Professor Bradford C. Mank of the University of Cincinnati College of Law told Bloomberg Law. Mank was quoted in the article “School DEI Training Appeal Poses Complex Worker Speech Questions”.  

If an employee attends training, disagrees with the substance, and the trainer pushes back, “I don’t know if that alone is enough,” he said. Discomfort with training is too broad a test, said Mank, who isn’t involved in this case.

Thomas Berry of the Cato Institute and James V.F. Dickey, an attorney with the Upper Midwest Law Center and the Center for the American Experiment, which is representing the plaintiffs, had a different perspective.

“A First Amendment violation on its own confers standing,” Dickey said in the article. In the employment context, there often is an adverse action or other negative consequence, but that isn’t needed in free-speech cases, he said.

Sometimes the negative consequences of not complying or of speaking out are clear from the context, Berry said. All that’s needed is a fear of punishment and the plaintiffs here feared repercussions “if they continued to be honest about what they believe,” he said.

Read the story in Bloomberg Law.  

Lead photo: istockphoto.com; Mank: UC Photography

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