Off-Campus Anti-Transgender Speech Cues First Amendment Quandary

A Milwaukee elementary school counselor and the board that fired her after a vulgar speech against transgender rights faced tough questions on the First Amendment from a Seventh Circuit panel during oral arguments Friday.

The ex-counselor argued that she shouldn’t have lost her job because, although she said at a political rally that over her “dead [expletive] body” would students under her watch transition socially or medically, she later assured the Milwaukee Board of School Directors she’d comply with any school policies on pronoun and name use for transgender pupils.

But “isn’t the school entitled to take her words at the rally at face value?” Judge Ilana D. Rovner of the US Court of Appeals for the Seventh Circuit asked. “I think it’s the classic question of ‘which time was she telling the truth?’” the judge added.

Marissa Darlingh’s statement at the rally, which took place at the state capitol in Madison, about 80 miles from the school where she worked, was “an off-the-cuff, unscripted speech,” said Luke Berg, the Wisconsin Institute for Law & Liberty deputy counsel who argued the case for her. “It was an emotional rally,” but Darlingh later clarified that she meant she wouldn’t do anything to cause students to transition, he said.

However, Darlingh made appearances in local and national media that contradict that position, said Katherine Headley, a Milwaukee assistant city attorney who argued the case for the school board. Darlingh told interviewers she wouldn’t change what she said at the rally or how she said it, and the school board considered those statements during the disciplinary process, Headley told the court.

Effect on Students

Darlingh lost her job after the school board investigated her rally statements for compliance with policies on bullying and harassment. She alleges the board used those as a pretext to fire her because it disagreed with her views on transgender people, an act that ran afoul of the First Amendment’s free speech protections.

Darlingh, whose rally speech is reproduced in full in both parties’ briefs, seeks reinstatement as a school counselor. A district judge denied her preliminary injunction motion and dismissed her free speech claim in March.

Didn’t Darlingh’s statements at the rally give the school board “reason to be concerned about what she might say to a student who came to her in her role as a counselor because they had questions about their gender identity?” Rovner asked.

Darlingh assured the board she would treat all students equally, Berg said. She was trying to make the point that she “wouldn’t initiate a social transition” but would use a student’s new name and pronouns if the parents supported that and would comply with school policies, he added.

But Darlingh said that “in her defense against termination,” Chief Judge Diane S. Sykes said. “That’s not contextually even the impression her speech left with listeners,” the judge added.

It was reasonable for the board to be concerned about what Darlingh said at the rally, but that concern became unreasonable once she confirmed she would follow school policy on referring to transgender students, Berg said.

Judge Kenneth F. Ripple asked Darlingh’s attorney if the board ever gave her guidance on what was a “permissible expression” in public as opposed to a “professional matter to be discussed in-house.”

The board didn’t spell out what was allowed, but school policy encourages workers to speak out and “participate in the political process,” Berg said.

Heckler’s Veto?

Ripple pressed Headley on where other courts have drawn the line between ensuring teachers and other school workers can speak out on “thorny issues” without interfering with “the effectiveness of the classroom” or getting in the way of district processes. “That’s something these briefs really don’t tell us,” he said, pondering how federal judges in conservative-leaning states such as Utah and Tennessee would rule.

The school board’s lawyer said she couldn’t “write a treatise on what the courts across the country are saying on this,” but pointed the judge to a 2013 Seventh Circuit case involving educator speech, where the appellate panel looked to an opinion from New York.

Another teacher at Darlingh’s school showed students articles about her rally speech and told them they didn’t have to go to her for counseling. Sykes likened the other conduct of the other teacher—whom the judge described as having “stirred the pot” to a heckler’s veto.

But that concept doesn’t apply here, Headley said. Other teachers are allowed to react to Darlingh’s speech, and no one stopped her from speaking in the first place, the lawyer added. Darlingh’s decision to speak out about transgender students doesn’t mean she’s “entitled to consequence-free speech.”

The case is Darlingh v. Maddaleni, 7th Cir., No. 23-01610, argued 12/8/23.