throbber
No. 23-1374, No. 23-1880
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE EIGHTH CIRCUIT
`
`BROOKE HENDERSON and JENNIFER LUMLEY,
` Plaintiffs-Appellants,
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`v.
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`SCHOOL DISTRICT OF SPRINGFIELD R-12, BOARD OF EDUCATION
`FOR THE SCHOOL DISTRICT OF SPRINGFIELD R-12,
`DR. GRENITA LATHAN, DR. YVANIA GARCIA-PUSATERI, and
`LAWRENCE ANDERSON,
`Defendants-Appellees.
`__________________________________________________________________
`
`Appeal from the United States District Court for the
`Western District of Missouri, Southern Division
`The Honorable Douglas Harpool
`Case No. 6:21-cv-03219-MDH
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`BRIEF OF APPELLEES
`SCHOOL DISTRICT OF SPRINGFIELD R-12, BOARD OF EDUCATION
`FOR THE SCHOOL DISTRICT OF SPRINGFIELD R-12,
`DR. GRENITA LATHAN, DR. YVANIA GARCIA-PUSATERI, and
`LAWRENCE ANDERSON
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`Ransom A Ellis, III, Mo. Bar 29129
`Tina G. Fowler, Mo. Bar 48522
`ELLIS ELLIS HAMMONS & JOHNSON, P.C.
`2808 S. Ingram Mill Road, Suite A-104
`Springfield, Missouri 65804
`rellis3@eehjfirm.com
`tfowler@eehjfirm.com
`Phone: (417) 866-5091
`Attorneys for Defendants-Appellees
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`Appellate Case: 23-1374 Page: 1 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT
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`Plaintiffs are current employees of the School District of Springfield, R-12.
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`Plaintiffs do not believe in equity and anti-racism. They filed suit arguing their First
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`Amendment rights were violated when they attended equity and diversity training.
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`Despite their assertion that this case is one of first impression, this Court has
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`addressed their unexceptional position and held that a public employer can require
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`employees to attend such trainings without infringing on their constitutional rights.
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`This Court has too found that when one suffers no adverse action, or injury-in-fact,
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`they lack standing to proceed. Such occurred here. Plaintiffs received credit and pay
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`for attending the training, and they spoke openly, voicing objections to the principles
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`presented. They were not required to speak favorably about anti-racism, which they
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`reject. Nor were Plaintiffs fired, demoted, transferred, or disciplined. In sum, after
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`analyzing Plaintiff’s conflated constitutional theories, the district court properly
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`granted summary judgment for Defendants due to Plaintiffs’ lack of standing.
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` The district court also properly awarded Defendants their attorney’s fees.
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`Plaintiffs did not seek a remedy for a genuine harm, but drug Defendants into a
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`political dispute, and continued to pursue their action even after the district court’s
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`early warning. They then pursued their claims aggressively even after discovery
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`confirmed their obvious lack of injury-in-fact, solidifying the basis for the fee award.
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`If the Court grants oral argument, Defendants too request 30 minutes per side.
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`i
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`Appellate Case: 23-1374 Page: 2 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`TABLE OF CONTENTS
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`SUMMARY OF THE CASE…………..……………………………………………i
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`TABLE OF AUTHORITIES ………...……………………………………………iv
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`STATEMENT OF THE ISSUES PRESENTED FOR REVIEW...…………………1
`
`STATEMENT OF THE CASE……………..………………………………………2
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`I.
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`The Training Endeavored to Increase Employee Awareness
`of, and Sensitivity to, Potential Discrimination Faced by
`Under-Represented and Under-Resourced Students………..…..…......2
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`II. Henderson’s Employment and Training………………………………4
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`
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`III. Lumley’s Employment and Training………………………………….6
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`IV. Plaintiffs Attended the Training, Expressed Their Views,
`Were Not Penalized, and Remain Employees of SPS……….………...8
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`Procedural History………………..………………...…………………8
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`V.
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`SUMMARY OF THE ARGUMENT…………….………………………..………10
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`STANDARD OF REVIEW……………………………………………………….12
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`ARGUMENT……………………………………………………………………...13
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`I.
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`The District Court Properly Granted Summary Judgment
`in Favor of Defendants Because Plaintiffs’ Claims
`Are Not Justiciable…………………………………………..………13
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`A.
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`The District Court Correctly Held Plaintiffs
`Lacked Standing………………………….………...…………14
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`Plaintiffs’ Factual Mischaracterizations Provide
`No Basis for Injury Sufficient to Show that
`SPS Compelled Plaintiffs’ Speech………………………...….18
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`B.
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`ii
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`Appellate Case: 23-1374 Page: 3 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`C.
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`D.
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`II.
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`Plaintiffs’ Factual Mischaracterizations Provide
`No Basis for Injury Sufficient to Show
`that SPS Chilled Plaintiffs’ Speech or
`Discriminated Against Plaintiffs’ Views…………….………..26
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`Plaintiffs’ Factual Mischaracterizations Provide
`No Basis for Injury Sufficient to Show
`that SPS Subjected Plaintiffs to an
`Unconstitutional Condition of Employment……...…………..31
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`Irrespective of Their Lack of Standing, the District Court
`Properly Granted Summary Judgment in Favor of
`Defendants Because Plaintiffs’ Interests in Speaking
`Do Not Outweigh SPS’s Interest in an Effective and
`Efficient, Nondiscriminatory Environment……….…….….………..31
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`III. The District Court Did Not Abuse Its Discretion When
`Awarding Defendants Their Attorney’s Fees and Costs……..………38
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`A.
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`The District Court Correctly Found Plaintiffs’
`Claims to be Frivolous, Unreasonable, or
`Without Foundation…………………………………………..39
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`The District Court Correctly Found Defendants’
`Hourly Rates and the Attorney Hours Expended
`Reasonable……………………………………………………44
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`If Remanded, Which Should Not Occur, Plaintiffs
`Have Not Shown a Basis for Case Reassignment…………………….47
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`Plaintiffs’ Appeal is Frivolous—Defendants Should Be
`Awarded Just Damages Pursuant to FED.R.CIV.P. 38……..………..47
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`CONCLUSION …………………………………………………………………...48
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`B.
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`IV.
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`V.
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`CERTIFICATE OF COMPLIANCE……………………………………………...49
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`CERTIFICATE OF SERVICE……………………………………….…………...50
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`Appellate Case: 23-1374 Page: 4 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`TABLE OF AUTHORITIES
`
`Cases
`
`281 Care Comm. v. Arneson, 638 F.3d 621 (8th Cir. 2011),
`cert. denied, 567 U.S. 951 (2012)………………………………………………….29
`
`Abbott v. Pastides, 900 F.3d 160 (4th Cir. 2018), cert. denied,
`139 S.Ct. 1292 (2019)…………………………………………………….…1, 28, 32
`
`Altman v. Minn. Dep’t of Corr., 251 F.3d 1199 (8th Cir. 2001)…………….1, 31, 32
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`A.M. ex rel McAllum v. Cash, 585 F.3d 214 (5th Cir. 2009)………………………36
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`Am. Fam. Life Ass. Co. v. Teasdale, 733 F.2d 559 (8th Cir. 1984)……………..1, 43
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`Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004)…………………..…22, 23
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`Bantam Books, Inc. v. Sullivan¸ 372 U.S. 58, 83 S.Ct. 631 (1963)….……………29
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`Bond v. Keck, 629 F. Supp. 225, 227 (E.D. Mo. 1986),
`aff’d, 802 F.2d 463 (8th Cir. 1986)..………………………………………….……41
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`Bourgeois v. U.S. Coast Guard, 151 F. Supp. 3d 726 (W.D. La. 2015)...…….……34
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`Carlisle v. McNair, 2023 WL 3340080 (5th Cir. May 10, 2023)…………………..13
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`Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 98 S.Ct. 694 (1978).….……40
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`Clapper v. Amnesty Int’l USA, 568 U.S. 398, 133 S.Ct. 1138 (2013).………1, 26, 31
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`C.N. v. Ridgewood Bd. of Edu., 430 F.3d 159 (3rd Cir. 2005)………………….…16
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`Cressman v. Thompson, 719 F.3d 1139 (10th Cir. 2013)…….………….…………22
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`Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015), cert. denied,
`577 U.S. 1216 (2016)………….………………………………………..…………22
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`CRST Van Expedited, Inc. v. EEOC, 578 U.S. 419, 136 S.Ct. 1642 (2016)..………39
`
`
`
`
`iv
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`Appellate Case: 23-1374 Page: 5 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`Daniels v. Alphabet, Inc., 2023 WL 2414258 (N.D. Cal. March 8, 2023)...………..47
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`EEOC v. CRST Van Expedited, Inc., 944 F.3d 750 (8th Cir. 2019)…………......1, 44
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`Farrar v. Hobby, 506 U.S. 103, 113 S.Ct. 566 (1992)……………………………46
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`Fish v. St. Cloud State Univ., 295 F.3d 849 (8th Cir. 2002)……….……….………44
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`Fisher v. Walmart, 619 F.3d 811 (8th Cir. 2010)……………………..……………40
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`Flowers v. Jefferson Hosp. Ass'n, 49 F.3d 391 (8th Cir. 1995)…………..……41, 46
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`Fox v. Vice, 563 U.S. 826, 131 S.Ct. 2205 (2011)..……………………………12, 39
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`Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006)………….……………36
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`Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999), aff’d, 531 U.S. 510 (2001)………25
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`Hein v. Freedom From Religion Found., 551 U.S. 587, 127 S.Ct. 2553 (2007)……14
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`Huizenga v. Indep. Sch. Dist. No. 11, 44 F.4th 806 (8th Cir. 2022)………..…12, 14
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`Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018)………………………25, 36
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`Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011)………………..………27
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`Koester v. YMCA, 2018 WL 10425458 (E.D. Mo. May 4, 2018)……………..……46
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`Kohlbeck v. Wyndham Vacation Resorts, Inc., 7 F.4th 729 (8th Cir. 2021)…..……12
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`Laird v. Tatum, 408 U.S. 1, 92 S.Ct. 2318 (1972)…………………………………19
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`League of Wm. Vtrs. of Mo. v. Ashcroft, 5 F.4th 937 (8th Cir. 2021)……….………12
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`Little Rock Sch. Dist. v. State of Ark., 127 F.3d 693 (8th Cir. 1997)……..…………44
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`Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130 (1992)...……………14
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`Menders v. Loudoun Cty. Sch. Bd.¸ 65 F.4th 157 (4th Cir. 2023)...……………..1, 15
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`
`
`
`v
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`Appellate Case: 23-1374 Page: 6 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021)..…………………..…………22
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`Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831 (1974)……..……18
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`Morrison v. Bd. of Ed. of Boyd Cty., 521 F.3d 602 (6th Cir. 2008)………………..22
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`Morse v. Frederick, 551 U.S. 393, 127 S.Ct. 2618 (2007)...……………….………37
`
`Pacific Gas and Electric v. Pub. Utilities Comm. of Calif.,
`475 U.S. 1, 106 S.Ct. 903 (1986)…………………………………………..………18
`
`Padilla v. South Harrison R-II Sch. Dist., 181 F.3d 992 (8th Cir. 1999)...…………37
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`Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008), cert. denied,
`555 U.S. 815 (2008).………………………………………………………………37
`
`Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694 (1972)...………………………31
`
`Phelan v. Laramie Cty. Comm. Coll. Bd. of Trustees,
`235 F.3d 1243 (10th Cir. 2000)...……………………..……………………18, 19, 22
`
`Pickering v. Bd. of Edu. of Twp. High Sch. Dist., 391 U.S. 563,
`88 S.Ct. 1731 (1968).……………………………………………………..…1, 31, 36
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`Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 92 S.Ct. 2286 (1972)...………………28
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`R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 112 S.Ct. 2538 (1992)…………….27
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`Raniere v. Microsoft Corp., 887 F.3d 1298 (Fed. Cir. 2018)...…………………….39
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`Robertson v. Anderson Mill Elem. Sch., 989 F.3d 282 (4th Cir. 2021),
`cert. denied, 532 U.S. 1020 (2001) ......……………………………………………37
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`Rosenberger v. Rector & Visitors of Univ. of Va.,
`515 U.S. 819,115 S.Ct. 2510 (1995)………………………………………………26
`
`Sabra v. Maricopa Cty. Cmty. Coll. Dist., 479 F.Supp.3d 808
`(D. Ariz. 2020), aff'd, 44 F.4th 867 (9th Cir. 2022)……………………..…………16
`
`Small Justice v. Xcentric Ventures, 873 F.3d 313 (1st Cir. 2017) ...……………..…39
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`
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`Appellate Case: 23-1374 Page: 7 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`Speech First, Inc. v. Cartwright, 32 F.4th 1110 (11th Cir. 2022) …...…..…………29
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`Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019)………….……………30
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`Telescope Media Grp. v. Lucero, 936 F.3d 740 (8th Cir. 2019)...………….………25
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`Tumey v. Mycroft Al, Inc., 27 F.4th 657 (8th Cir. 2022)...……………….…………47
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`U.S. v. Sindel, 53 F.3d 874 (8th Cir. 1995)……………………………..…………18
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`Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 108 S.Ct. 636 (1988)………28, 29
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`West Virginia State Bd. of Edu. v. Barnette, 319 U.S. 624,
`63 S.Ct. 1178 (1943).………………………………………………...……………18
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`Williams v. City of Carl Junction, Mo., 523 F.3d 841 (8th Cir. 2008)..…………1, 40
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`Winter v. Cerro Gordo Cty. Cons. Bd., 925 F.2d 1069 (8th Cir. 1991)……….……13
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`Wooley v. Maynard, 430 U.S. 705, 97 S.Ct. 1428 (1977)…………….……………18
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`Wragg v. Village of Thornton, 604 F.3d 464 (7th Cir. 2010)..…………..…………30
`
`Zanders v. Swanson, 573 F.3d 591 (8th Cir. 2009)…………………….……1, 13, 26
`
`Zieper v. Metzinger, 474 F.3d 60 (2nd Cir. 2007)...…………………..……………21
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`Statutes
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`20 U.S.C. §1681 et seq. (Title IX)..…………………………….………………34, 35
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`29 U.S.C. § 701 et seq. (Section 504)……………………………………………...35
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`42 U.S.C. § 1983……………………………………………………………9, 40, 42
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`42 U.S.C. § 1988..……………………………………………….……………passim
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`42 U.S.C. § 2000d et seq. (Title VI)………………………………..………………34
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`
`
`
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`

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`42 U.S.C. §§ 2000e et seq. (Title VII)……………………………………..………35
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`42 U.S.C. §§ 12132 et seq. (Title II of the ADA)..…………………………………35
`
`RSMo. § 213.010 et seq..………………………………………..…………………35
`
`Rules
`
`Federal Rule of Appellate Procedure 38.………………..…………………………47
`
`Federal Rule of Civil Procedure 56……………………..…………………………12
`
`Other
`
`Don’t Shoot Portland v. City of Portland, 2022 WL 2700307
`(D. Oregon 2022)….………………………………………………………………..3
`
`U.S. Department of Justice’s Civil Rights Division (CRD) and the U.S.
`Department of Education’s Office for Civil Rights (OCR) Fact Sheets……………35
`
`
`
`viii
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`Appellate Case: 23-1374 Page: 9 Date Filed: 07/19/2023 Entry ID: 5297480
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`

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`STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
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`I. Whether the district court properly granted summary judgment in
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`favor of Defendants as to Plaintiff’s First Amendment claims when it found
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`that Plaintiffs suffered no adverse employment action (i.e., no injury-in-fact)
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`sufficient to confer standing.
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`Apposite Authorities
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`Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)
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`Menders v. Loudoun Cty. Sch. Bd.¸ 65 F.4th 157 (4th Cir. 2023)
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`Zanders v. Swanson, 573 F.3d 591 (8th Cir. 2009)
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`II. Assuming Plaintiffs could show standing, whether the district court
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`properly granted summary judgment in favor of Defendants as to Plaintiff’s
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`First Amendment claims when it found that Plaintiffs’ interests in speaking
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`did not outweigh SPS’s
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`interest
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`in an effective and efficient,
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`nondiscriminatory environment.
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`Apposite Authorities
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`Abbott v. Pastides, 900 F.3d 160 (4th Cir. 2018)
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`Altman v. Minn. Dep’t of Corr., 251 F.3d 1199 (8th Cir. 2001)
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`Pickering v. Bd. of Edu. of Twp. High Sch. Dist., 391 U.S. 563 (1968)
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`III. Whether the district court acted within its discretion when it
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`awarded Defendants their reasonable attorney’s fees and costs.
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`Apposite Authorities
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`Am. Fam. Life Ass. Co. v. Teasdale, 733 F.2d 559 (8th Cir. 1984)
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`EEOC v. CRST Van Expedited, Inc., 944 F.3d 750 (8th Cir. 2019)
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`Williams v. City of Carl Junction, 523 F.3d 841 (8th Cir. 2008)
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`1
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`Appellate Case: 23-1374 Page: 10 Date Filed: 07/19/2023 Entry ID: 5297480
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`STATEMENT OF THE CASE
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`This appeal is brought by two employees of the School District of Springfield,
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`R-12 (“SPS”), Brooke Henderson (“Henderson”) and Jennifer Lumley (“Lumley”)
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`(collectively “Plaintiffs”). Plaintiffs allege that SPS violated their rights under the
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`First Amendment when it required Plaintiffs, as non-teacher SPS employees, to
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`attend equity and diversity training in fall 2020.
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`I. The Training Endeavored to Increase Employee Awareness of, and
`Sensitivity to, Potential Discrimination Faced by Under-Represented and
`Under-Resourced Students
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`
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`SPS is an urban public school district in Springfield, Missouri which enrolls
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`approximately 24,000 students, employs approximately 3,900 staff and operates 55
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`buildings. App. 2514-15; R. Doc. 78, at 7-8. SPS is governed by a Board of
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`Education (the “Board”). App. 2515; R. Doc. 78, at 8.
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`During school year 2018-19, SPS experienced a series of disturbing events.
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`App. 152; R. Doc. 75, at 11. The acts targeted students of color and LGBTQ+
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`students, and represented what the Board believed to be “opposition to basic human
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`rights and to a learning environment defined by inclusivity and respect for every
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`individual.” Id. The Board issued a statement opposing racism, bigotry and
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`disrespect, and in May 2019, passed a Resolution to Affirm Commitment to Equity
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`and Inclusivity. App. 1153; R. Doc. 75-5, at 827; and App. 2519; R. Doc. 78, at 12.
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`2
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`

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`A 46-person citizen’s committee was then formed, named the Equity and Diversity
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`Advisory Council (“EDAC”). Id.
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`In April 2020, EDAC issued a report recommending that SPS develop
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`ongoing equity training for students, staff, faculty and leaders. App. 2522; R. Doc.
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`78, at 15. In May 2020, based on EDAC’s recommendations, SPS added a focus area
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`to its strategic plan titled “Equity and Diversity.” App. 2526-27; R. Doc. 78, at 19-
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`20. This area focused on under-represented students, including students of color,
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`students with disabilities, LGBTQ+ students, students from diverse religions, and
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`English language learners. App. 2525-27; R. Doc. 78, at 18-20. It also focused on
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`under-resourced students, including students qualifying for free and reduced
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`lunches, and students receiving McKinney-Vento services. Id.
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`In June 2020, consistent with EDAC’s recommendations, and in the backdrop
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`of the targeting events against SPS students, and national events relating to the
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`pandemic and racial unrest (also see Appellants’ Brief, p. 5),1 SPS put employees
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`on notice of its commitment to equity and diversity. SPS told staff, “[I]t is our
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`responsibility to be equity champions for all students and to create learning
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`environments that are inclusive and affirming of all identities and lived experiences.”
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`App. 1642; R. Doc. 77-8, at 1.
`
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`1 See Don’t Shoot Portland v. City of Portland, 2022 WL 2700307 (D. Oregon 2022)
`(discussing daily protests starting in May 2020 through November 2020 in relation
`to what was described as the “murder of George Floyd by a…police officer”).
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`
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`3
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`In fall 2020, SPS required employees to attend equity and diversity training.
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`App. 161-62; R. Doc. 75, at 20-21. The training was implemented to create more
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`equitable environments for students by giving employees opportunities to learn
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`about barriers to education faced by students, with a focus on under-represented and
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`under-resourced students. Id. The training was not used in the classroom. Id. It
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`consisted of two hours of equity and diversity training, and one hour each for mental
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`health and active-shooter training. App. 159-60; R. Doc. 75, at 18-19. For attending,
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`employees received supplemental pay. Id. Employees who failed to attend some, but
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`not all programs, received a portion of the supplemental pay. Id. Five employees did
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`not attend and did not receive supplemental pay. App. 161; R. Doc. 75, at 20.
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`Employees attending also received professional development credit. App. 5307; R.
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`Doc. 88, at 2. Plaintiffs generally take issue with four training portions described as
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`the George Floyd video, the social identities chart, the oppression matrix, and the
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`white supremacy chart. App. 290-91; R. Doc. 75-2, 11-12. Henderson also
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`participated in a “four corners exercise” and completed online training. App. 2560;
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`R. Doc. 78, at 53; and App. 2567-68; R. Doc. 78, at 60.
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`II. Henderson’s Employment and Training
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`Henderson is a Section 504 Process Coordinator for SPS and she has been
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`employed since 2008. App. 2513; R. Doc. 78, at 6. In October 2020, Henderson
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`attended the training virtually. App. 2543; R. Doc. 78, at 36. Although Henderson
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`did not feel that watching the George Floyd video violated her rights, she voiced an
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`opinion about the video during a small group session, but was not asked for comment
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`during the large session. App. 2548-49; R. Doc. 78, at 41-42. Henderson did not
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`identify where she placed herself on the oppression matrix (App. 259-261; R. Doc.
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`75-1, at 54-56), and she elected not to fill out the social identities chart, nor was she
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`asked to share where she fell on the chart, but other employees did so share (App.
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`262-65; R. Doc. 75-1, at 57-60).
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`Although others expressed their opinions, and Henderson did ask questions,
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`Henderson was not directly called on for her opinions. App. 237; R. Doc. 75-1, at
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`32; and App. 2550; R. Doc. 78, at 43. She was not asked her opinion about socialism
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`(App. 2551; R. Doc. 78, at 44), or about the Indigenous Peoples’ Statement (App.
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`2556-57; R. Doc. 78, at 49-50). Nor was she asked to affirm alleged statements
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`relating to parents oppressing children, educators voting for socialization, or
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`marginalization of certain people. App. 244-52; R. Doc. 75-1, at 39-47. Henderson
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`was not asked to give an opinion regarding white supremacy or the chart (App. 250;
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`R. Doc., at 45), but she did express concerns about a Black Lives Matter protest
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`(App. 1297-98; R. Doc. 77, 33-34; and App. 2554; R. Doc. 78, at 47). She claims
`
`that during the four corners exercise she held up “agree” signs but that she did not
`
`agree with some statements, such as, “I feel represented in the District.” App. 2560;
`
`R. Doc. 78, at 53.
`
`
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`Henderson completed online modules with multiple-choice answers, which
`
`were not graded or recorded. App. 2570-71; R. Doc. 78, at 63-64. She was asked
`
`questions such as, “When you witness racism and xenophobia in the classroom, how
`
`should you respond? Address the situation in private after it has passed; or Address
`
`the situation the moment you realize it is happening?” Id.
`
`In December 2020, Henderson spoke to a Board candidate claiming the
`
`training and the online modules violated her rights. App. 2619; R. Doc. 78-3, at 4;
`
`depo. p. 15. In June 2021, she spoke at an open Board meeting and complained about
`
`the trainings’ content. App. 2618; R. Doc. 78-3, at 3; depo. p. 10. After the meeting,
`
`she sent an email to the Board complaining further. Id. at depo. p. 11.
`
`III. Lumley’s Employment and Training
`
`In July 2020, Lumley was hired as a Secretary in Special Services. App. 2514;
`
`R. Doc. 78, at 7. In September 2021, Lumley was promoted to the position of
`
`Secretary in Analytics, Accountability and Assessment and received a pay increase.
`
`Id. In October 2020, Lumley attended the training in-person. App. 2536; R. Doc. 78,
`
`at 29. She did not complete online training (App. 287-88; R. Doc. 75-2, at 8-9), or
`
`participate in the four corners exercise (App. 290; R. Doc. 75-2, at 11).
`
`Lumley viewed the “George Floyd video,” broke into a small session to
`
`discuss, and when returning to the large group, she did not share her opinion, nor
`
`was she asked for it. App. 2538-40; R. Doc. 78, at 31-33. As for the social identities
`
`
`
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`chart, no small group discussion was held, and Lumley was not asked her opinion or
`
`how she would have filled it in, nor was anyone else. App. 2541-42; R. Doc. 78, at
`
`34-35; and App. 295-96, R. Doc. 75-2, at 16-17. In Lumley’s session, no employee
`
`had to rate themselves on the oppression matrix, nor was Lumley asked her opinion.
`
`App. 2540-41; R. Doc. 78, at 33-34. Per Lumley, it was not discussed “in great
`
`detail.” App. 293-94; R. Doc. 75-2, at 14-15.
`
`Regarding the white supremacy chart, no group session was held, no one
`
`called Lumley’s name or asked if she understood the chart, and she was not asked to
`
`affirm anything that was presented. App. 294-95; R. Doc. 75-2, at 15-16. Between
`
`the discussion about the oppression matrix and the white supremacy chart, Lumley
`
`“spoke up” and shared her “opinion” that she thought the trainers “were painting a
`
`broad-brush stroke of white people as racist, and [she] said that was wrong…[she]
`
`wasn’t born into white privilege.” App. 2542; R. Doc. 78, at 35. Lumley claims SPS
`
`corrected her, and that her coworkers berated her, but SPS did not intervene. App.
`
`1298; R. Doc. 77, at 34. Lumley admits she was expressing her opinions and that
`
`others participated in the discussions. App. 298; R. Doc. 75-2, at 19. In this regard,
`
`and per other employees, the trainers asked for comments or let individuals
`
`volunteer. App. 2540; R. Doc. 78, at 33.
`
`
`
`
`
`
`
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`

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`IV. Plaintiffs Attended the Training, Expressed Their Views, Were Not
`Penalized, and Remain Employees of SPS
`
`Henderson, who also completed the online training, received credit for the
`
`trainings, additional pay for the equity training (App. 2530; R. Doc. 78, at 23), and
`
`her pay was never reduced (App. 2575-76; R. Doc. 78, at 68-69). Lumley too
`
`received credit and was paid her regular rate of pay for attending (App. 2530; R.
`
`Doc. 78, at 23), and her pay was not reduced (App. 2574; R. Doc. 78, at 67). SPS
`
`continues to employ Plaintiffs, and Lumley was promoted in September 2021 (App.
`
`2513-14; R. Doc. 78, at 6-7), after this lawsuit was served on Defendants (App. 1;
`
`R. Doc. 1).
`
`While employed by SPS, Plaintiffs have never been subjected to any form of
`
`discipline. App. 2531; R. Doc. 78, at 24; and App. 2576; R. Doc. 78, at 69. Further,
`
`no SPS employee was terminated because they failed or refused to attend the training
`
`or failed to complete the training. Id. Plaintiffs also are not aware of any SPS
`
`employee who was disciplined, refused credit or asked to leave a training session
`
`because of their conduct or comments during a training session. Id.
`
`V. Procedural History
`
`On August 18, 2021, Plaintiffs filed suit against SPS, its Board, and the
`
`following employees: Dr. Grenita Lathan (Superintendent); Dr. Garcia-Pusateri
`
`(Chief Equity and Diversity Officer); and Lawrence Anderson (Coordinator, Office
`
`of Equity and Diversity). App. 1-27; R. Doc. 1, at 1-27; and App. 2515-16; R. Doc.
`
`
`
`8
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`

`

`78, at 8-9. Plaintiffs allege three constitutional violations under the First Amendment
`
`and 42 U.S.C. § 1983. App. 24-26; R. Doc. 1, at 24-26.
`
`On November 16, 2021, the district court held a case management conference.
`
`The court emphasized that Plaintiffs were SPS employees (App. 121) and when
`
`asked, Plaintiffs’ counsel acknowledged that no employee had been fired, demoted,
`
`or had their pay cut due to SPS’s trainings (App. 106). In response to the court’s
`
`inquiry about whether a court had ever found that a school does not have an
`
`affirmative duty to see that racial justice occurs, Plaintiffs’ counsel offered no case.
`
`App. 104-105. The court stated school boards were to decide how to implement
`
`policy concerning civil rights, with which Plaintiffs’ counsel agreed. Id. The court
`
`then noted that fighting racism is within a school employee’s job responsibilities.
`
`App. 112. It later asked if SPS could require Plaintiffs to implement the anti-racism
`
`policy consistent with the training they received and Plaintiffs’ counsel stated “yes.”
`
`App. 119. Defendants’ counsel asserted Plaintiffs’ lack of standing (App. 99-100),
`
`which was pled in Defendants’ Answers (App. 60, R. Doc. 17, at 31; and App. 93,
`
`R. Doc. 31, at 32).
`
`In July 2022, Defendants filed a Motion for Summary Judgment asserting
`
`Plaintiffs lacked Article III standing, or in the alternate, their claims failed on the
`
`merits. App. 138; R. Doc. 138. Plaintiffs also filed a Motion asserting they were
`
`entitled to judgment as a matter of law on all claims. App. 1262; R. Doc. 76.
`
`
`
`9
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`

`

`On January 12, 2023, the district court granted Defendants’ Motion and
`
`denied Plaintiffs’ Motion. App. 5306; R. Doc. 88. The district court held Plaintiffs’
`
`compelled speech and content and viewpoint discrimination claims relating to the
`
`training sessions failed for lack of standing, and also held that Plaintiffs’ claims
`
`relating to the four corners exercise, the online multiple-choice questions, and the
`
`unconstitutional employment conditions claims failed for lack of standing. App.
`
`5315, 5318, 5320, 5326; R. Doc. 88, at 10, 13, 15, 21. Further, the district court held,
`
`or stated, “For the reasons described, even if plaintiffs could demonstrate injury-in-
`
`fact, which they cannot, this court would enter summary judgment on behalf of
`
`Defendants and would deny Plaintiffs’ motion for summary judgment.” App. 5329;
`
`R. Doc.88, at 24.
`
`The district court also found Plaintiffs’ claims to be frivolous and without
`
`foundation and on March 31, 2023, awarded Defendants their attorney’s fees in the
`
`amount of $312,869.50. App. 5510; R. Doc. 107. It further awarded Defendants
`
`costs in the amount of $3,267.10. App. 5534; R. Doc. 120, at 1-2.
`
`SUMMARY OF THE ARGUMENT
`
`The district court’s orders granting Defendants’ Motion for Summary
`
`Judgment and awarding Defendants their attorney’s fees should be affirmed.
`
`Plaintiffs were only required to attend the two-hour equity and diversity
`
`training to receive credit and compensation for attending. Plaintiffs never faced
`
`
`
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`

`

`discipline arising out of their participation in the training, or otherwise. Plaintiffs
`
`expressed their opinions and objected to anti-racism during, and even after the
`
`training, and were never reprimanded or counseled. Nor were Plaintiffs demoted,
`
`transferred, suspended, disciplined, or fired. Their claimed speculations that they
`
`had to attend the training and affirm anti-racism, or be harmed, or that they would
`
`be harmed if they either did not speak and affirm anti-racism, or spoke in opposition
`
`to anti-racism, are just that—mere speculations. Plaintiffs cannot generate their own
`
`constitutional standing based on rank speculation that they would be injured were
`
`they not to go along with what they claim was a requirement to speak, or not to
`
`speak. Because Plaintiffs cannot show the needed threshold element, injury-in-fact,
`
`Plaintiffs cannot show standing and their First Amendment claims fail.
`
`Irrespective of their lack of standing, the equity and diversity training related
`
`to important and inherently controversial issues facing school districts. 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. It
`
`did not require Plaintiffs by means of compulsion to express a specific message after
`
`encountering examples of discrimination. The training did not require any employee
`
`to violate the Constitution or any law, nor did it require Plaintiffs, apart from their
`
`official job duties, to express views with which they disagreed or face consequences.
`
`SPS’s interests outweigh any interests Plaintiffs may have had in speaking.
`
`
`
`11
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`

`

`Plaintiffs’ claims are frivolous. The District Court did not abuse its discretion
`
`when awarding Defendants $321,869.50 in attorney’s fees, and $3,267.10 in costs.
`
`STANDARD OF REVIEW
`
`This Court “appl[ies] de novo review to the [district court’s] grant of summary
`
`judgment.” Kohlbeck v. Wyndham Vacation Resorts, 7 F.4th 729, 737 (8th Cir. 2021)
`
`(citation omitted). This Court views the record in the light most favorable to the
`
`nonmoving party and draws all reasonable inferences in that party's favor. Id.
`
`(citation omitted) (internal quotations omitted). Summary judgment should be
`
`granted when, as here, “ ‘the movant shows that there is no genuine dispute as to any
`
`material fact and the movant is entitled to judgment as a matter of law.’ ” Id. (quoting
`
`Fed. R. Civ. P. 56(a)); and Huizenga v. Indep. Sch. Dist. No. 11, 44 F.4th 806, 809
`
`(8th Cir. 2022) (reviewing, de novo, district court’s dismissal for lack of standing).
`
`As for the order awarding Defendants their attorney’s fees, while “the legal
`
`issues related to an award of attorneys’ fees” are reviewed “de novo,” in this Circuit,
`
`“the actual award is reviewed for an abuse of discretion.” League of Wm. Vtrs. of
`
`Mo. v. Ashcroft, 5 F.4th 937, 939 (8th Cir. 2021). A district court abuses its discretion
`
`when it makes an error of law, fails to consider a relevant factor, gives significant
`
`weight to an improper factor, or commits a clear error of judgment. Id. (citation
`
`omitted) (internal quotations omitted). Accordingly, “appellate courts must give
`
`substantial deference” to a district court’s attorney fee award. Fox v. Vice, 563 U.S.
`
`
`
`12
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`

`

`826, 828 (2011) (citation omitted). This is due to a “d

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