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Are DHS DEI Training Videos “Compulsion”?

It’s quite normal for employees of government entities to be required to watch various training videos, from sexual harassment to racial sensitivity, as a requirement of the job. To some extent, it’s a protective measure to provide a defense against liability should some claim arise later that someone acted inappropriately. The entity can point at the training video and argue, “we tried our best.” And at the same time, almost no one believes these videos accomplish anything, and some contend they make matters worse.

But DHS employees Aaron and his father Joseph Norgren claimed these videos compelled speech on their part, in violation of their rights under the First Amendment.

Nearly two years later in August 2020, Joseph received an email from one of his supervisors, Paul Ploog, instructing him to complete workplace trainings titled, “How to be Antiracist (CRT Training)” and “Understanding Gender Identity and Expression: Moving Beyond the Binary.” Aaron received an email from Pherson instructing him to complete the same trainings. The Norgrens alleged that Commissioner Harpstead directed DHS supervisors to promulgate the trainings. Commissioner Harpstead also emailed employees that the trainings were necessary to foster “brave conversations” and “change . . . minds for life” and DHS Assistant Commissioner Karen McKinney told employees that “we need all of you to do this.”

The Norgrens alleged that the trainings instructed employees to speak or refrain from speaking on certain political and ideological matters. For example, the trainings mandated a minute of silence for George Floyd. They also directed employees to stop using the phrase “I am not a racist” as a defense, to admit to a specific definition of the word “racist,” to confess to racist policies they supported, and to accept that the United States is the root of racist ideas. The Norgrens alleged the gender identity training instructed them to refrain from telling others that their gender identities are wrong. The Norgrens opposed the racism training as violative of the traditional view of equality under Title VII, and they opposed the gender identity training as contrary to their sincerely held religious beliefs.

The Eighth Circuit held that requiring the Norgrens to watch the online training videos was not compelled speech.

There was no allegation that the Norgrens were forced to affirmatively agree with any of the statements in the trainings. There was no allegation that they were threatened with any kind of penalty if they did not observe the minute of silence for George Floyd during the training, if they continued using the phrase “I am not a racist” as a defense after the training, or if they expressed their countervailing viewpoints regarding racism or gender identity in the workplace.

The email directing the Norgrens to complete the trainings only told them to watch the videos to the end and then click the exit button. The allegation that Commissioner Harpstead intended the trainings to change minds for life does not by itself demonstrate the required compulsion.

Ironically, the “nearly two years later” phrase of the factual recitations refers to an incident involving the father, Joseph.

On October 12, 2018, Joseph was working an overnight shift at the Security Hospital when his direct supervisor, Luke Pherson, asked him how many genders exist. Joseph responded that he believed two exist based on his knowledge of DNA and biology. Pherson then angrily told Joseph that “his God” made them that way and Joseph could be fired for the way he thought and spoke. The Norgrens alleged that after this incident, they noticed a difference in the way they were treated at work.

In this case, the Norgrens argued that the trainings contradicted their sincerely held religious beliefs, both being Christians. Had they been agnostic, would the trainings have been any more or less compulsory? Can athiests be compelled to believe that there are 37 genders? But I digest.

Obviously, there is no magical way the computer can tell if you’ve performed a moment of silence for George Floyd or muttered cynically back at the training video that you respectfully dispute whether it “fosters brave conversations.” So being forced to watch it isn’t the same as being made to believe it. But then, is there not a message that challenging the video’s assertion that it is impermissible to say “I am not a racist” or that the United States, a nation you might have sworn to defend, “is the root of racist ideas”?

Eugene Volokh saw no problem with this aspect of the ruling.

I think that has to be right, on these facts: Government employers have to be able to require employees to watch various training videos or read training materials, and I doubt that courts can effectively sort ones that have undue ideological content from ones that don’t. That is especially so because various kinds of training might have some content that some might view as ideological: Just to take one example, imagine incoming soldiers being required to read books or watch videos that aim to inculcate certain patriotic or professional norms, or for that matter to teach contestable interpretations of the laws of war.

The comparison with soldiers being required to “watch videos that aim to inculcate certain patriotic or professional norms” seems like a terrible analogy. After all, that bears upon the specific performance of their function as soldiers. Why can’t a court “effectively sort” undue ideological content, just as they parse the words and deeds of an employee who gives rise to a hostile work environment. Such sorting is pretty much what courts exist to do, determine whether the specific facts in issue violate the law.

At the start of his tenure, President Biden issued an Executive Order requiring the entirety of the United State government to make DEI a part of everything it does, whether it bears upon the job functions or not. The rationale was that it would “strengthen the federal workforce,” whatever that means. The upshot, however, was that it would train federal employees that only one ideology would be tolerated on the job, so if they want to make it to their federal pension, they better not utter forbidden words like “I am not a racists” or “America is the greatest country on earth.” That seems pretty compulsory.

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