Diversity trainings have become commonplace across all sectors. While many of these trainings are well-intentioned and justified by the commendable goal of workplace harmony, some may run afoul of the constitutional guarantees of speech and equality, or legal protections found in Title VI of the Civil Rights Act. In particular, the legal pitfalls of recent diversity trainings at public schools contain lessons for nonprofits and philanthropists seeking to implement diversity programming at organizations.
Many diversity trainings sort participants into “oppressed and oppressor” classes based largely on what amounts to crude racial stereotypes, with practical exercises reinforcing this message. The exercises are designed to highlight the privileges the oppressor class supposedly enjoys based on historical injustices that, as individuals, none of us was alive to witness.
While similar instruction exists across industries, school districts frequently require educators to attend trainings that impose these types of controversial views on staff members, forcing them to disclose personal details they may wish to keep private and to self-censor their views on hotly debated public topics. They are then expected to teach these contentious lessons to students.
Take, for example, a recent case in Springfield, Missouri. In August 2021, the Southeastern Legal Foundation filed a lawsuit on behalf of two educators against Springfield Public Schools, challenging the district’s discriminatory programming that required participants to rank themselves as oppressors based on their race, religion and sex. The educators asserted these trainings violated their First Amendment rights.
To be clear, the stated purpose of this mandatory training on racial equity was to force everyone involved — from the bus driver to the cafeteria worker — to subscribe to the ideology of “anti-racism,” or the notion white people are born privileged while all people of color are born oppressed. Participants were taught that the concept of a colorblind society is a myth told to uphold “white supremacy.” Staff also were forced to assess their own vulnerabilities and strengths as “anti-racist” educators and assigned to write about being “anti-racist,” thereby committing themselves to this divisive ideology.
The government cannot force anyone, not even federal employees, to affirm allegiance to a political ideology without violating the First Amendment. We’ve long known that schools can’t require children to pledge allegiance to the American flag. Those same schools certainly can’t require teachers to subscribe to an “anti-racist” agenda.
Another example from a school district in Evanston, Illinois, illustrates how diversity training collides with federal civil rights law. This Chicago-area suburb went far beyond merely directing their teachers to affirm a destructive message. The district actively discriminated against teachers and students by separating them into different groups based on their skin color. In another age, this would have been called segregation. Now it is called an “affinity group.” In training sessions, white people were depicted as inherently racial oppressors. Children as young as 5 years old received lessons with depictions of a white devil offering up money in exchange for the souls of people of color.
The Office of Civil Rights Enforcement for the U.S. Department of Education actually found these practices violated federal law. Title VI of the Civil Rights Act prohibits discrimination based on race, color, religion or national origin. Any training that calls out participants based on any of these characteristics is prone to the highest forms of legal scrutiny. When the Biden administration declined to litigate despite these confirmed violations of civil rights, the Southeastern Legal Foundation filed a lawsuit on behalf of a teacher. The suit asserted that civil rights law cannot be ignored, even by the federal department charged with enforcing it.
Trainings like those in Springfield and Evanston risk legal liability and fail to achieve their asserted goal of workplace harmony. As grantmakers and nonprofits seek to educate foundation staff about diversity, they ought to prioritize programming that focuses on equality and embraces America’s founding ideals. The “self-evident truth” that all of us are created equal was a resounding rejection of the notion of an aristocratic class born with exclusive privileges. This ideal is unifying and inclusive because it offers the possibility for all people to fulfill their true potential. It is an ideal codified in our founding documents that makes America unique among the nations – and truly unites rather than divides us.
Braden Boucek is the director of litigation for the Southeastern Legal Foundation. Kimberly Hermann is the general counsel.