Colleges and universities often require students and teachers to take diversity training as a requirement for enrollment or employment. These courses typically also include questions that test the participants' understanding of the material.
Colleges can generally require members of their community to participate in diversity training without implying First Amendment rights of students and teachers. After all, hearing the views of the university – whether students and faculty agree with them or not – does not necessarily require anyone to agree with those views, and for a university to function at all, you have to be prepared are to hear speech with which you disagree. A university may also ask students and faculty questions to demonstrate their understanding of the institution's policies.
But the University of Oklahoma mandatory diversity training modules go further, requiring students and teachers to answer questions in such a way agrees with with the university's views on thorny and difficult issues. Positions with which students and teachers may disagree.
ITo view public records, the University of Oklahoma would require a FIRE staff member to fly across the country (FIRE is based in Philadelphia) during a global pandemic. This approach does anything but keep public records private.
At a public university, the requirement of students and faculty that in this way they agree with the position, position or values of the university runs headlong in First Amendment law against forced speech – since First Amendment not only empowers the right to to speak protects, but also the right not to speak. Famously, the Supreme Court has held that schoolchildren cannot be forced to salute the American flag West Virginia State Board of Education v Barnette (1943) that it is unconstitutional for the government to require a person to "declare a belief (and …) that he speak what he does not have in mind". The Court rightly ruled that forced speech would "strangle the free spirit at its sources."
FIRE wrote at OU on November 16, 2020, calling on the university to make its diversity training optional or to allow participants to choose the answer choices that best fit their beliefs. Nearly five months later, OU has still not responded to our letter.
FIRE sent a records request to OU – which, as a public university, is subject to the Oklahoma Open Records ActWe asked OU to produce any material used to train students, faculty or staff in diversity, equality and inclusion.
The university is March 23 reaction – More than four months after our request – said FIRE would be allowed to view the training materials, but only in person at the OU campus in Norman, Oklahoma. In other words, in order to view public records, the University of Oklahoma would require a FIRE employee to fly across the country (FIRE is based in Philadelphia) during a global pandemic. That's not exactly a transparency-friendly approach to public records, and it all keeps public records private.
Fortunately, FIRE was able to review most materials with the help of Elizabeth Owen, a graduate student and staff member at OU.
Because Owen is a graduate student and staff member at OU, she was required to complete three separate diversity training modules during the fall semester. During the training module for teachers and staff, Owen had to answer questions about hypothetical situations related to diversity and inclusion. To complete mandatory training, Owen had to select the correct answers according to OU, rather than having the answers that she felt best reflected what she would do in the situation.
In one of these hypothetical situations, Owen had to communicate with a fictional colleague named Michael. It showed a video of Michael saying he was "tired of all this transgender stuff" and gave Owen options to select in response. When Owen chose the answer that she felt most matched her feelings ("I agree. Political correctness can be so exhausting"), she was told that her opinion was not the "best choice".
Had the video continued as usual, there would arguably not have been any curtailment of Owen's rights: she would have chosen the answer she thought was best, the university disagreed and the training would continue. That's similar to how personal training would likely work. (Assuming, of course, that the university has found no other way to take adverse action against those who give "wrong" answers.)
Instead, however, the video is automatically rewound, forcing Owen to select the answer choice that OE preferred: & # 39; You seem upset. What is it? ”- to keep going. Owen was obligated to select the desired answer to complete the mandatory training. In doing so, the university, a state agency, forced Owen (and who knows how many others) to express a position with which she disagreed.
In contrast, OU student training includes a quiz at the end that students must take to complete the mandatory training. However, because students appear to be allowed to choose any answer that best fits their beliefs and still complete the training without any problems, this would not amount to forced speech. (Again, this assumes that some other kind of adverse action is off the table.) If the faculty and staff training had allowed them to complete the training while selecting their own preferred answer choice without sanction, that would be allowed as well. Are.
This is not a close call. As Judge Robert H. Jackson wrote in the most famous passage in Barnette's famous decision:
If there is a fixed star in our constitutional constellation, it is that no official, high or small, can prescribe what will be orthodox in politics, nationalism, religion or other matters, or that citizens be forced to confess with words or their faith to act. in there. If there are circumstances that allow an exception, they do not occur to us now.
If forcing schoolchildren to salute the flag with the goal of building national unity amid the devastation of World War II didn't lead to an exception, then diversity training, no matter how well-intentioned, now allows no such exception. FIRE again calls on OU – and any other public college or university using similar training materials – to immediately drop any requirement that the faculty or students agree with the university's views and commit to protecting the rights of its students and faculties.