SPS says failed diversity training lawsuit made it ‘posterchild’ for awarding legal fees

Alleging a federal lawsuit over diversity training was a “calculated attempt” to drag Springfield Public Schools into a “political dispute,” the district has asked an appeals court to uphold a decision requiring the employees who filed it to pay nearly $313,000 in legal fees.

The 2021 lawsuit was thrown out and U.S. District Judge Douglas Harpool, describing it as frivolous, ordered Brooke Henderson and Jennifer Lumley to reimburse the district for 1,538 of the hours its attorneys spent to respond.

Henderson and Lumley, who argued in the original suit that the training required in fall 2020 violated their rights, were represented by the Georgia-based Southeastern Legal Foundation.

They appealed the judge’s order to pay the district legal fees and received support from, among others, the ACLU of Missouri, the Show-Me Institute, and Missouri Attorney General Andrew Bailey.

In the long-awaited response filed Wednesday, the district said Henderson and Lumley were warned early on by the court that the lawsuit was “baseless” but alleged that “riding high on their political agenda, they pushed ahead even more aggressively.”

“If ever a school district deserved to be awarded its attorney’s fees and costs, it is SPS,” the district wrote in the 59-page response.

“Through workplace anti-racism training, SPS did nothing more than seek to encourage its staff to fight for and advocate for minority students. Yet, it found itself fighting against the frivolous claims of egocentric plaintiffs, who elect to be unaware of the potential barriers students may face, making SPS the posterchild for when, how, and why a school district should be awarded its attorney’s fees.”

In response to the appeal, the district said amount the employees were ordered to pay — $312,869 in attorney fees plus $3,267 in costs — “should have been spent on education.”

“Plaintiffs disavow any instruction designed to increase their awareness and understanding of racial discrimination that may be confronted by SPS students. They are blind to the fact that their actions have forced SPS to spend monies fighting against frivolous claims,” the district wrote.

“Plaintiffs choose to disregard that at its core, the underlying premise for the training was vindicating the rights of students by ensuring that school employees are cognizant of situations, words, phrases, references, or even inadvertent actions, that another may perceive as discriminatory based on race and other protections.”

‘Controversial issues’ facing districts

As part of its response, SPS provided a detailed timeline of what led to the development of the training at the heart of the initial lawsuit.

The district said there were a “series of disturbing events” during the 2018-19 year targeting students of color and LGBTQ students.

For example, posters created by a student-run Gay Straight Trans Alliance were ripped off the wall of a high school and video of the incident was posted on a “straight pride” social media account. The morning students planned to mark the Day of Silence — to raise awareness about the bullying of LGBTQ individuals — students drove through the school parking lot waving flags including a Confederate battle flag.

A high school student used racial slurs to describe Black student athletes on Snapchat, warning them to stay out of the locker room and adding “we should (expletive) lynch you.”

SPS wrote, in its response, that the school board believed the incidents were in “opposition to basic human rights and a learning environment defined by inclusivity and respect for every individual.”

The board issued a statement opposing racism, bigotry and disrespect. In May 2019, a resolution was passed to affirm the district’s commitment to equity and inclusivity.

A district Equity and Diversity Advisory Council was created and the 46 students, parents, educators and community members met for months. In a report, the council recommended training for students, staff, faculty and leaders.

The district added an “equity and diversity” focus to its strategic plan − which was completely overhauled in late 2022 − on ways to improve academic achievement and graduation rates for students from under-resourced and under-represented backgrounds.

It included students of color and LGBTQ students as well as students with disabilities, diverse religious beliefs, lack of stable housing, limited English skills and those who qualify for free and reduce price meals.

More:Helping all SPS students feel ‘welcome and valued’ is goal of diversity, equity work group

In June 2020, amid the COVID-19 pandemic and the national unrest following the death of George Floyd, the district told employees: “It is our responsibility to be equity champions for all students and to create learning environments that are inclusive and affirming of all identities and lived experiences.”

That fall, the district launched the mandatory equity and diversity training to educate employees about the “barriers faced by students.”

“The equity and diversity training related to important and inherently controversial issues facing school districts,” SPS wrote in its response to the appeal.

“The training endeavored to address and enhance employees’ understanding and sensitivity to race issues likely to be confronted by under-represented and under-resourced students.”

Objecting to SPS equity policies, training

According to the district, Henderson completed the two-hour training online and Lumley attended in person but did not finish.

Henderson, a process coordinator for students who have special needs, was hired in 2008. Lumley was hired as a secretary in July 2020.

In the original lawsuit, Henderson and Lumley alleged the training presented them with a difficult choice. They could say what SPS “wanted to hear” by affirming anti-racism and equity and admitting their white privilege.

They alleged their other choices were to refrain from speaking and risk being labeled white supremist or speak their views and risk losing credit and pay for the training.

The suit named the district as well as Superintendent Grenita Lathan and SPS employees Lawrence Anderson and Yvania Garcia-Pusateri, who helped lead the training. Garcia-Pusateri recently left the district.

In the response Wednesday, the district said Henderson and Lumley voluntarily made their views known during the training and there was no backlash.

More:Federal judge rules for SPS in lawsuit filed by staff over diversity training

For example, Harpool’s ruling pointed out Henderson said during training that Black Lives Matter “protests were at least in part riotous and that Kyle Rittenhouse acted in self-defense when he shot and killed people during protests in Wisconsin.”

Lumley reportedly said, during the training, that she lacked white privilege because she came from a “poor, broken home.”

“Plaintiffs received credit and pay for attending the training and they spoke openly, voicing objections to the principles presented. They were not required to speak favorably about anti-racism, which they reject,” the district wrote. “Nor were plaintiffs fired, demoted, transferred or disciplined.”

The district pointed out Lumley was later promoted to a different job within the district, for which her pay increased.

In throwing out the suit, the judge ruled Henderson and Lumley did not have the standing to file it because, in part, they could not establish they had been injured as a result of the training. The judge also explained an employer can require employees to attend such training without infringing on their constitutional rights.

“They have never been remotely hurt while continuing to make clear, without pause, their abhorrence towards anti-racism. No matter how plaintiffs twist the facts, they cannot show SPS compelled, or chilled, their speech,” wrote the district, in its response.

“Even if SPS mandated plaintiffs’ attendance at anti-racism training as part of their employment, no facts show that SPS disciplined plaintiffs, or threatened discipline, or that SPS would have deemed that plaintiffs did not complete the training, if they spoke dissention, or did not speak.”

The district argued the court was right to require the employees to pay the legal fees because they “did not seek a remedy for genuine harm but drug (the district) into a political dispute.”

SPS argued this week that the appeal filed by the employees was “replete with verbosity and rabble-rousing” and “spent pages characterizing their views of, and objecting to, SPS’s policies of equity and anti-racism.”

‘Friend of the court’ briefs filed

The Southeastern Legal Foundation — a nonprofit has filed numerous lawsuits involving school training, critical race theory, and COVID-19 policies — represented Henderson and Lumley in the initial training suit as well as the appeal filed in the spring.

That appeal, which aims to reverse the ruling that Henderson and Lumley must pay the legal fees, received a lot of support.

“As SLF and the 36 amici supporting Ms. Henderson and Ms. Lumley explain in our briefing, American citizens must be able to challenge government officials when they infringe on constitutionally protected rights without fear of financial penalties,” said Kimberly Hermann, general counsel for the foundation.

“This is a case of first impression about whether a school district can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion among its employees. We will respond fully to the school district’s appellate brief in our reply brief with the Court of Appeals for the Eighth Circuit.”

Missouri’s AG led a coalition of 16 Republican state attorney generals, in filing a “friend of the court” amicus brief in support of Henderson and Lumley.

More:ACLU, ADF file brief urging reversal of $300K award in Springfield Public Schools lawsuit

At least 20 other briefs were filed by a wide range of groups including the CATO Institute, a libertarian think tank in Washington, D.C.

In recent months, SPS has filed responses to many of the briefs, alleging they are not helpful and are filed by special interest groups with no connection to the appeal.

The district’s legal team is led by attorney Ranson Ellis III.

Of the CATO brief, the district alleged it “mischaracterizes facts, misapplies case holdings to the facts at hand and hypes plaintiffs’ lawyers and Southeastern Legal Foundation’s alleged dedication to ‘Rebuilding the American Republic’ under the guise of an impartial party.”

Once SPS filed a response to the appeal, a window opened for “friend of the court” briefs to be filed on behalf of the district. None had been filed as of Thursday.

Claudette Riley covers education for the News-Leader. Email tips and story ideas to criley@news-leader.com.