The Goldwater Institute and several allied groups filed a brief in the Eighth Circuit Court of Appeals today urging the judges to uphold the rights of two public school employees who were forced to participate in and even ordered to endorse an “anti-racism” training. As we argue in our brief, that requirement violated the First Amendment, which forbids the government from imposing a viewpoint on people against their will or prohibiting them from expressing their opinions.
The case involves a legal theory called “chill,” which says that government can violate your free speech rights by threats or intimidation, even if it doesn’t actually punish you for expressing yourself. If the government’s threats are serious enough that an “ordinarily prudent person” would have hesitated to exercise his or her free speech rights, the government can be sued for essentially forcing people to censor themselves. In this case, when the employees were told that “anti-racism” requires them to treat students differently based on their race, and that all white people are inherently racist, some of them spoke up to defend themselves. Those employees were then told they “needed to work on [themselves].” Others chose not to say anything, out of fear of retaliation.
But when they sued, the trial judge threw the case out, on the theory that because they didn’t actually end up being penalized, they never suffered any free speech violation. In fact, the judge ordered the employees to pay almost a third of a million dollars in attorney fees to the government for bringing the lawsuit.
That’s wrong. The question in a “chill” lawsuit is whether a person would have felt too intimidated to speak out, not whether they actually did so. Even if a person has the gumption to continue expressing his or her opinion in the face of government intimidation, she can still bring a “chill” case. And as we explain in our brief, any rational person forced to attend one of these training sessions would have been afraid to speak out. The entire theory of “anti-racism” is that white people are inherently racist, and to deny this—or to say that people should be treated the same regardless of skin color—is itself just another form of racism. Since being labeled a racist can be a career-ending accusation regardless of the actual facts, any employee required to attend one of these trainings would have believed that to express an opinion would be extremely risky.
“Anti-racism” theory is directly contrary to the basic principles of the American constitutional system, which is fundamentally based on the principle of color-blindness: that is, that people should be treated the same regardless of their racial ancestry. This theory is not only the basis of the 1964 Civil Rights Act, but was the very principle that Thurgood Marshall argued for in Brown v. Board of Education. But today, it’s considered anathema by “anti-racism” advocates. Ibram Kendi, the foremost spokesman for this theory, has said that “the language of color blindness—like the language of ‘not racist’—is a mask to hide when someone is being racist,” for example. Moreover, Sharif El-Mekki, founder and CEO of the Center for Black Educator Development, has said that “aspiring to ‘colorblindness’ is disqualifying” for teachers. “Teachers are not fit to teach Black and brown children,” he says, “if they fail to understand that colorblindness is erasure.”
What’s more, for a white teacher to say she is not a racist is itself a form of racism, according to “anti-racist” theory. Kendi says that “the claim of ‘not racist’ neutrality is a mask for being racist,” and teachers in particular are told that “when white teachers profess not to see color, what they are doing is performing” in ways that “result in the marginalization of the lived racial disparities experienced by their Students of Color.”
In fact, not only have teachers been fired for expressing their disagreement with “anti-racism” dogma, but they’ve even been fired for agreeing with “anti-racism.” When one teacher in Texas recently told students that, as a white man, he was inherently racist—which is exactly what “anti-racist” theory says—he was terminated.
In other words, the very structure of “anti-racism” is such that being compelled to participate in the “training” session would necessarily cause any reasonable employee to believe that she’d better shut her mouth and smile.
The attorney fee award was even more wrongheaded. The civil rights laws provide that a losing plaintiff in a civil rights lawsuit can almost never be forced to pay such fees, because these laws were designed to encourage people to file lawsuits to vindicate the color-blindness principle. That’s just what these employees did. To penalize them for standing up for one of the nation’s most hard-won principles of justice is perverse.
Our brief is joined by our friends at the Kansas Justice Institute, the Mississippi Justice Institute, the Show Me Institute, and the Mackinac Center for Public Policy. You can read the brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
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