University of Oklahoma illegally compels students and staff to give “approved” answers during mandatory diversity training

April 11, 2021 • 11:15 am

Many university faculty and staff have taken mandatory training in human resources during their tenure.  For example, not long ago I took a required module in sexual harassment training, even as an emeritus professor (well, I do interact with other faculty, students, and staff). These modules proceed by giving a didactic overview about how to proceed in various situations, followed by a number of questions to determine if you understood the procedures. I didn’t think anything of it, nor did I think the training was out of line, as sexual harassment is illegal and creates a bad environment on campus for the harassed and everyone else.

But training in diversity issues is different, as you’ll see below. So far, the University of Chicago hasn’t instituted required diversity training, and I wouldn’t be happy if they did—not if it was like what the University of Oklahoma’s (UO’s) mandatory training involves. For, according to the Foundation for Individual Rights in Education (FIRE), OU’s training does not let you pass the required modules unless you give certain approved answers. These answers don’t seem to involve obeying the law, but rather force you to agree with the University’s views on diversity. Click on the screenshot below to see a summary of the issue from the FIRE site:

It came to FIRE’s attention that in these modules, UO was forcing the trainees to agree with certain viewpoints—a form of “compelled speech” which, according to the Supreme Court, is illegal in public universities (these must obey the First Amendment). That’s because it may “compel students, faculty, and staff to agree with concepts that may violate their freedom of conscience”.   FIRE notes the Supreme Court precedent that prohibits compelled speech:

Famously, in ruling that schoolchildren cannot be compelled to salute the American flag, the Supreme Court held in West Virginia State Board of Education v. Barnette (1943) that it’s unconstitutional for the government to require a person “to declare a belief [and . . . ] to utter what is not in his mind.” The Court, correctly, held that compelled speech “would strangle the free mind at its sources.”

How did FIRE know that compelled speech was likely taking place in UO’s training? A letter from FIRE to UO last November (pdf of letter here), reports the experiences of Elizabeth Owen, a (brave!) graduate student and staff member who had access to the diversity training materials. Owen was required to take three commercial diversity-training modules, which presented several hypothetical situations and then asked trainees to provide their “best choice”. Here are two examples of how Owen’s “best choice” was not the University’s. This one is from the FIRE article:

In one of these hypothetical situations, Owen was required 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 selected the response that she felt was most similar to her feelings (“I agree. Political correctness can be so tiring”), she was told that her opinion was not the “best choice.”

Had the video simply proceeded, there would arguably be no abridgment of Owen’s rights: She had chosen the answer she thought was best, the university disagreed, and the training would continue. That is similar to how an in-person training would likely work. (Assuming, of course, that the university did not find some other way to take adverse action against those giving “wrong” answers.)

Instead, however, the video automatically rewound, forcing Owen to select the answer choice that OU preferred — “You seem upset. What’s the matter?” — in order to continue. Owen was required to select the preferred answer in order to complete the mandatory training. In doing so, the university, an agency of the state, compelled Owen (and who knows how many others) to express a viewpoint with which she did not agree.

The modules are required, remember, so you have to agree with the University’s views to pass them.

And this example is from the letter that FIRE sent to OU.

Another example was a question about accommodations for an employee with fibromyalgia. The question states:

Anya has fibromyalgia and feels drained and in immense pain by the end of a workday. She sneaks in a few breaks when she can, but her work responsibilities can keep her from getting the rest she needs, and sometimes her efficiency suffers. What should Anya do?

Although Owen originally selected the response that most closely reflects what she would do were she Anya (“Nothing. She takes multiple breaks when she can to help with her disability, which is already more than her peers”), the training program required her to repeat the process, giving her an explanation about why OU did not select this as the proper answer. When Owen selected a second response that she believes would also be appropriate (“Talk to her supervisor about switching to part-time, or a less demanding position”), she was again required to repeat the process. Finally, when Owen selected the response that OU has marked as the correct choice (“Talk to her supervisor about what reasonable accommodations can be made for her”), she was permitted to move on.

On these and other questions, Owen disagreed with the mandatory OU-selected answer but was forced to affirm OU’s preferred response rather than the response that reflects her own conscience. Failing to do so would render her unable to complete the mandatory training and thereby subject her to adverse action by the university.

FIRE concluded its November letter this way, drawing an analogy between being forced to salute the flag—at the time a West Virginia law, which violated the conscience of Jehovah’s Witnesses—and to adhere to the University’s views about what is “appropriate” behavior. (Legal behavior is a separate issue.):

OU’s diversity trainings—however well-intended—require students, faculty, and staff to express the “correct” response and profess their agreement with the ideas that the university disseminates. While, as in Barnette, there would be no constitutional issue or burden on the freedom of conscience if the university’s administration simply shared its own views on the correct response to hypothetical situations, the requirement that students and faculty affirm the “correct” view is similar to the requirement in Barnette that students salute the flag.

If forcing schoolchildren to salute the flag with the goal of building national unity amidst the destruction of World War II did not make the cut for an exception, then neither does diversity training, however well-meaning, permit such an exception now. FIRE again calls on OU — and any other public college or university that uses similar training materials — to immediately remove any requirement that faculty or students agree with the university’s viewpoints and to commit to protecting its students’ and faculty’s rights.

Before FIRE can go further, like instituting a lawsuit against OU (which would probably succeed), it needs access to the modules themselves. After asking for them under the Freedom of Information Act, OU said, well, yes, FIRE could see them, but they’d have to travel to the University itself to see them in person!:

The university’s March 23 response — more than four months after our request — said that FIRE would be permitted to view the training materials, but only in person on OU’s campus in Norman, Oklahoma. In other words, in order to 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. That’s not exactly a transparency-friendly approach to public records, and it all but ensures that public records remain private.

This is ridiculous, for these models could be made available to FIRE online. That is, in fact, how we take them: we register and then are given a code to access the test. OU is trying to prevent FIRE from coming down on the University for violating the First Amendment.

And it is this which made many of us worried earlier when our Provost suggested that the University of Chicago might also institute mandatory diversity training. The objection is that such training, as at OU, is not to determine if you understand your legal obligations, but if your own opinions conform to a preferred point of view—probably the tenets of Critical Race Theory. That would never fly at this school—at least I don’t think it would. At any rate, the University of Chicago seems to have dropped that suggestion.

But the University of Oklahoma, a public university, is digging in its heels. It really should do what FIRE suggested: stop using forms of training that require the trainees to agree with the University’s own views.

31 thoughts on “University of Oklahoma illegally compels students and staff to give “approved” answers during mandatory diversity training

    1. Which of course, encourages you to lie, making the whole exercise meaningless. And only so university can get “correct” data and virtue-signal.

  1. Yeah, the training is out of line. It’s hard to believe that it got released without getting a legal opinion on it first.

    1. As incidents like this arise, it’s clear that there are lawyers out there who will happily take the woke position. They are no less susceptible to this nonsense than doctors.

    2. The way that I read TFA the training is only out of line for a public body. For a private body, it is perfectly acceptable – indeed, the programme is described as “commercial”. That gels with what I’ve met of US employment law, where the employer (outside branches of the state) can require people to rub woad into their navels widdershins (heaven forbid you being a turnwise monster) on pain of unemployment. They certainly act as if they believe they can compel adherence to [whatever], then get very upset when told in court (well, employment tribunal) that they can’t behave like that because they’re not in America any more. Terribly upsetting for them.
      OK : selection effect – we didn’t see the ones who complied with UK law, because they didn’t treat their employees as badly as they could get away with in America.

  2. I work in the private sector, but luckily my company is headquartered in Germany. While there has been a noticeable uptick in DEI communications, any sort of activity has thus far been optional. I think if something like this came up, I would go back to HR with the same argument FIRE is using, even though as a private employer the same strictures don’t exist.

    1. If they did introduce such training, could you ask to take the German version?
      Not that you’d actually need to speak any German – from the way it’s described, at worst, you’d take 4 times the time for a perfect score. But going back to HR to get the German version is a perfectly reasonable request that should put the project on hold for a small number of lifetimes.
      Ninajifunza Kiswahili polepole. That’s my story, and I’m sticking to it!

  3. Apparently at OU they have never heard of lawyers or legal advice. Since everyone now has sidearms who needs lawyers or advice of any kind.

    1. Lets ask another question. Would you want this clown school handling the sexual harassment or worst, the sexual assault at this institution.

  4. I have taken these types of tests before, but almost always in more “objective” subjects, where the “right” answer is indisputable. For instance, if the question is “2+2=”, and you select “5”, you are blocked on continuing until you select “4”. If you make too many mistakes in the 10 review questions that followed every module, you would automatically be taken back to the beginning of the module to watch it again, because you obviously didn’t get it. On more subjective topics, where everything was shades of grey, we learned to write down the “correct” answers that the course wanted us to choose in case we had to circle back to the start of the module. That way we could speed through the module the second time, if necessary. The only thing I learned in those types of course was “just give the dang machine what it wants to hear so I can get on with my life”.

    1. My wife bought me a T-shirt which says:

      2 + 2 = 5
      For sufficiently large values of 2

      We’re both mathematicians, so we laugh every time I wear it. Which should probably serve as a warning to normal people against allowing mathematicians to marry each other.

  5. There are parallels with the multiple-choice test which is part of the process of acquiring British citizenship. This has attracted ridicule for having questions to which the “correct” (i.e. required) answer is just plain wrong, whilst other questions delve into aspects of British life which are so arcane that most natives would be hard pressed to answer them. The Guardian columnist Zoe Williams wrote a good critique of it recently:

    1. When my wife and stepdaughter went through this paper mill – over a decade ago now – it was exactly the same. And neither of them expected anything different for one second.
      The hardest part was for the wife – a trained teacher of English, to Russians – to downgrade her English to Government standards.
      Why am I watching Reggie Perrin as I write that – it’s almost prophetic.

  6. So disappointing – not least because of the way nonsense like that tends to eventually end up here in the UK after appearing in the US.

  7. I find myself, once again, at odds with this argument. I see no justification for Fire’s law suit given the examples provided. Elizabeth’s answers are obviously incorrect. As an employer I would worry that Elizabeth is a problem waiting to happen. At the very least she betrays a lack of compassion for people with disabilities. Her choice to answer the trans question by agreeing that political correctness is tiring would certainly raise red flags in a job interview. I have very little sympathy for Elizabeth or for the lawsuit.

    This lawsuit is another tiresome argument based on the idea that individuals are entitled to express and act on their deeply held beliefs, simply because they are deeply held beliefs.

    1. Depending on Elizabeth’s workplace responsibilities and the legal requirements about the extent to which an employer has to accommodate health issues such as the fictional Anya’s I suppose that there could perhaps be a justification for insisting on the “correct” answer.

      In the case of Elizabeth’s communication with the fictional Michael, it seems somewhat outrageous that she should be compelled to “call him out” on his personal views in what is apparently meant to be, in the absence of any context to the contrary, an informal exchange between colleagues.

      1. I don’t usually comment on replies to anything I post, but Elizabeth was not asked to “call him out” The response, “You seem upset, what’s the matter” seems a good, non-judgemental, general purpose response to any co-worker who is irritated about anything. It invites conversation. It facilitates communication. It can start a process of problem solving. It does nothing to interfere with Elizabeth’s conscience, that I can see, which is why I think it is a very poor example to use in defense of this lawsuit.

        In the example of the disabled employee, I think the correct answer is also obvious — speak with your supervisor about possible solutions. Isn’t that the obvious and correct response the any workplace problem. What is Elizabeth’s argument here. Laws require that disabled individuals be offered reasonable accommodations. Elizabeth’s opinion that Anya is already getting more that she deserves is irrelevant. Is she arguing that the UO can’t require people to know and follow laws. The argument seems ridiculous.

        Based only on the two examples given, this is a frivolous lawsuit that I hope will be dismissed. Elizabeth needs to improve her people skills

        1. “I don’t usually comment on replies to anything I post . . . .”

          I take it that it is a compliment to JezGrove that JezGrove is worthy of a response.

        2. In the example of the disabled employee, I think the correct answer is also obvious — speak with your supervisor about possible solutions.

          And the next sentence is ….
          “about reduced working hours and/ or reduced income, and you are going to get the sack at the next “objective” performance review.”
          Sorry, I’m just taking notes for how to brief the lawyer when your company is hauled up in front of the industrial tribunal. We’ll be asserting constructive dismissal over a period of (we’ll check the documents, it could be decades) requiring restitution of back-pay with interest, re-employment (without further threat of discrimination), restitution of pension rights including over the period of dispute.
          OK, we have a basis for going to court. Well, Tribunal – same difference.
          This is why trade union dues are, in my opinion, like an insurance payment. You really need to have brought the insurance before you have a problem, not after the problem.

    2. Well, first, you’d have to really read into Elizabeth’s answers to brand her as anti-disabled or -trans. But even assuming she is, forcing her to recite ‘correct’ answers isn’t going to rectify her inadequacies, is it? That’s the issue with wokeness, it’s is often more self-righteously condemning than educational, which is counter-productive.

    3. “At the very least she betrays a lack of compassion for people with disabilities. Her choice to answer the trans question by agreeing that political correctness is tiring would certainly raise red flags in a job interview. I have very little sympathy for Elizabeth or for the lawsuit. ”

      And, as we all know, people who you personally think are ideologically deficient in some way simply aren’t worthy of the civil rights afforded to citizens.

      “This lawsuit is another tiresome argument based on the idea that individuals are entitled to express and act on their deeply held beliefs, simply because they are deeply held beliefs.”

      Are you saying that individuals should not be allowed to express their deeply held beliefs if they contradict your own? And, if so, whom do you suggest we put in charge of deciding which beliefs are allowed to be expressed and which are not?

      This is the epitome of Woke insanity: “I have judged you to be insufficiently compassionate/anti-racist/whatever, and you should therefore be stripped of your right to express your beliefs and, even worse, be compelled to express the beliefs I deem proper. If you do express those beliefs which I have judged to be beyond the pale, you must be punished.”

      Also, your extreme judgment of this person based on two answers to hypothetical questions is remarkable. You sure are very judgmental and, it seems to me, lacking in compassion! I guess your compassion — which you clearly think is far beyond what this other person possesses — only extends to people who conform to your very limited ideological framework.

  8. Of course the on-line training program in question works. It works to provide employment for the individuals who wrote it, profit for the companies that market it, and both employment and status for the D/E/I mandarins at the University and elsewhere who get to require it for those under their control. This sort of thing is, by some estimates, an $8 billion/year sector of the economy, which is real moola. The actual effects on individual recipients of the “trainings” could not be more irrelevant.

    1. We need a greater understanding of the actual Money involved in all this D.I.E. system. How many jobs? How much are they paid? HOW are they paid?
      This seems to be a piece of the puzzle missing other than the national number of $8B which is thrown about with little explanation or accounting.
      I’d like to know that. “Who benefits?” is an apt question I think.

      D.A., J.D.

    2. “A billion here, a billion there, and pretty soon you’re talking real money”. I’m not sure whose line that is, but it works for almost anyone not in Tanzania or Korea.

      It works to provide …

      It also provides valuable data, specifically an external (therefore, “unbiased”) “measurement” of the company’s dedication to … widdershins cauldron-circling, or turnwise impalee-rotation, I’ve forgotten which. For an extra few percent of the cost of the training, you can probably also get a pretty booklet report which you can present in contradiction to your company’s next lawsuit over (whatever). “Independent data” like that can be seriously valuable.
      This is one of the reasons that such companies normally object, strenuously, to their materials getting outside the control of their “auditors” (to use, I think, the Scientology term) – without that data, it can be hard to show how vacuous the actual course is. They try password protection too – and normally they are very bad at doing it.

  9. To get around the “flying to Norman” problem, surely someone who has yet to take the test could be persuaded to simply take screenshots as they go along.

    1. Oh, I very much doubt that you’d be allowed to take a recording device – of any sort – into this exam. What is sauce for the cinema management company is sauce for the bullshit psychobabble training company.

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