In Henderson v. Springfield R-12 Sch. Dist., No. 23-1374 (8th Cir. Dec. 30, 2025) (en banc), the Eighth Circuit holds that it was enough for a public employee to establish standing in a First Amendment challenge to a Diversity, Equity, and Inclusion (DEI) program to have been shown a slide during a workplace presentation that said “Be Professional – Or be Asked to Leave with No Credit” [sic]. The plaintiffs established that the PowerPoint slide itself chilled their protected speech, despite that they were allowed to stay for the length of the program and voice their criticisms.
“The plaintiffs alleged that while attending a mandatory district-wide equity training program for staff [in 2020], the school district engaged in viewpoint discrimination, caused attendees to self-censor, and/or forced attendees to accept beliefs with which they did not agree.”
Employees were required either to attend in person or remotely; remote attendees were required to keep their cameras on, out of respect to the speakers and other attendees. The opening of the presentation included a “Guiding Principles” slide directed staff to “Stay Engaged,” “Lean into your discomfort,” “Speak YOUR Truth and from YOUR Lived Experiences,” “Acknowledge YOUR privileges,” “Seek to Understand,” “Hold YOURSELF accountable,” and “Be Professional.” “In addition to the comments made by the trainers, the power point slide contained an explicit warning that the plaintiffs took note of: ‘Be Professional — Or be Asked to Leave with No Credit.’”
Plaintiffs alleged that, whether remotely or in person, participants were required to respond to prompts about DEI that required answers favored by the trainers before they could advance in the program. The plaintiffs verbally took positions contrary to the group on such then-current issues as the Kyle Rittenhouse shooting of protesters in Kenosha, Wisconsin and the police-involved homicide of George Floyd in Minneapolis, Minnesota.
Plaintiffs also spoke-up about their belief that “the school district was assigning characteristics based on race,” giving a preference to non-white participants while disparaging whites as racist and privileged. “Throughout this litigation, the plaintiffs have asserted that the training was essentially an indoctrination focused on the school district’s views and its interpretation of white supremacy. In particular, the school district expected staff to accept its definition of ‘white supremacy,’ which it defined as ‘the all-encompassing centrality and assumed superiority of people defined and perceived as white.’”
Plaintiffs alleged violations of their First Amendment rights under 42 U.S.C. § 1983. The district court dismissed the action on Article III standing grounds, holding that plaintiffs “had not shown an injury in fact.” Indeed, the district court found plaintiffs’ standing arguments so lacking in merit that plaintiffs were sanctioned and ordered to pay the school board’s attorney’s fees. The original panel affirmed the dismissal, though it vacated the sanctions. Henderson v. Springfield R-12 Sch. Dist., 116 F.4th 804 (8th Cir. 2024).
On rehearing, the en banc court reverses the district court’s dismissal of the plaintiffs’ claims for lack of standing and remands the case for further proceedings.
The six-judge majority holds that “[b]ecause the record contains specific facts supported by evidence showing the plaintiffs were subjected to a credible threat of adverse consequences by the school district (which was more than minimal or wholly subjective) if they opposed the school district’s views on racism, their showing is sufficient to confer Article III standing.”
While the plaintiffs presented record evidence that they met resistance to their views during the trainings, the primary evidence that their speech was chilled was the risk that they could be expelled from the program if they were uncooperative.
“The plaintiffs self-censored to avoid negative consequences that the school district itself repeatedly said it would impose—the employee would be asked to leave the training; the employee would not receive credit; and Henderson and Lumley understood that if this happened, their pay would be docked because completion of the training was mandatory. The specific consequences identified by the school district for not agreeing with the school district’s views on being an anti-racist educator caused an objectively reasonable chilling effect on the plaintiffs’ speech.”
“On these facts, it is of little consequence that ultimately no one was forced to leave the training, and the school district did not reduce anyone’s pay because a plaintiff is not required to first suffer a consequence before she may bring a claim.”
“Because there is sufficient evidence in the record demonstrating an objectively reasonable chilling effect on speech that would cause a person of ordinary firmness to self-censor, and the plaintiffs did self-censor, the evidence in the record is sufficient to give rise to an injury in fact. The district court erred when it determined otherwise.”
The six-judge majority also holds that the structure of the modules – which required participants to give “correct” answers before they could advance – also constituted an injury-in-fact for a First Amendment claim of “compelled speech.”
Five judges dissent in two separate opinions.
The lead dissent, signed by Judge Colloton and joined by all five dissenters, would hold any injury on this record to be too speculative to support Article III standing.
“The court’s theory of ‘chill’ founders in part because the record does not support that the district’s directive to ‘be professional’ ever deterred [plaintiff] Lumley from speaking. Lumley instead asserts that she refrained from further discussion at the training because she was concerned about how her comments would be received and did not want to experience more rebuttal from fellow trainees and trainers who disagreed with her. But her choice about optimizing peer relations does not show that the school district intimidated her. And a speculative wonder about how the school district would receive her comments is not an allegation of credibly threatened sanctions.”
“An employer may direct its employees to ‘be professional’ without causing constitutional injury. A reasonable employee would not construe a requirement of professionalism to forbid a civil discussion or debate about training materials with which the employee disagrees. [Plaintiffs] engaged in such a discussion without any retribution from the employer, either during or after the training. There is no evidence that the trainers, in response to Henderson’s remarks, threatened that she would be written up or terminated for continuing to express disagreement.”
The main dissent wonders what this extension of standing might bring to future public employee training sessions. “An employer who trains on any subject from any point of view, while requiring employees to be professional, is subject to a federal lawsuit by an employee who disagrees with the training and keeps quiet. Only time will tell how the court elects to manage this new font of litigation. If the court’s opinion turns out merely to reflect disapproval of one tendentious training program that judges dislike, then the decision might be good for this day and this ship only. But if the court is true to its word, then the floodgates are open.”
A second dissent, signed by Judge Shepherd, adds that the only tangible threat was that the plaintiffs would not credit for completing the program. “While the district did caution that failure to complete the training would result in loss of credit, that statement does not contain even a hint that dissenting views might be punished.” Moreover, “the plaintiffs never identified this purported threat in moving for summary judgment, resisting summary judgment, or on appeal. It is not the Court’s role to identify facts in support of an argument. Even apart from the local rules requiring litigants to identify material facts, . . . principles of party presentation mandate that courts take the arguments and facts as they are presented.”
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