Maryland Teacher Takes Gender Policy Challenge to Supreme Court
Kimberly Polk’s lawyers say the school district is making her mouth wrong-sex pronouns and hide from parents that their children are transitioning genders in school—in violation of her free exercise and free speech rights.
School gender policies are back before the Supreme Court, which has once more been asked to step in—this time, to protect a Maryland teacher’s right not to be forced to comply with them.
Earlier this year, the Court handed a group of California parents a historic win when it restored their rights to be told if their child expresses a new “gender identity” in school. In that case, Mirabelli v. Bonta, it concluded the gender policies were likely to trigger heightened “strict scrutiny” on review and the parents were likely to succeed on their free exercise and due process claims.
However, the Court’s ruling, which lifted the stay the Ninth Circuit had placed on the lower court ruling blocking the policies, extended only to the parents, not to the teachers.
Now, schoolteacher Kimberly Polk has filed a petition for certiorari, asking the Court to protect her right not to be forced to personally endorse the Montgomery County, MD district’s message on gender identity.
We covered Polk’s litigation and loss in the federal courts here.
As a Christian who believes there are only two God-given sexes, Polk refused to comply with school guidelines requiring her to use her students’ preferred pronouns and to refrain from discussing any student’s gender identity with their parents. She applied for a religious exemption, which the school district promptly rejected.
Rather than remain at her substitute teaching job, Polk sued in federal district court, claiming the school violated her free exercise of religion and free speech rights. The court denied those claims last year.
On appeal, the Fourth Circuit panel affirmed, over a vigorous dissent by Judge J. Harvie Wilkinson, who denounced the policy as a “gross assault” on the First Amendment.
The majority disagreed: Once in school, Polk spoke as an employee, not as a private citizen. The district guidelines didn’t violate her free speech rights; rather, they established “her official duties as a substitute teacher for Montgomery County’s public schools”: “[H]ow a teacher addresses a particular student in a particular classroom—and whether a teacher communicates with a student’s parent—is merely a part of that teacher’s job description,” the panel concluded.
But Polk’s lawyers at Alliance Defending Freedom argue the First Amendment does not allow a public school to compel its teachers to endorse one side of a noncurricular, controversial issue simply by labeling the compelled speech a job duty. “Polk has her own free exercise and free speech rights, and she is being forced by the school district—in violation of her religious beliefs—to personally endorse the government’s views on gender identity by mouthing wrong-sex pronouns and by hiding from parents that their children are transitioning genders in school.”
It’s “an especially egregious kind of direct coercion,” the lawyers say.
This is the same Montgomery County School District, readers may recall, that lost at the Supreme Court in Mahmoud v. Taylor, where the Court held parents could opt their children out of LGBTQ-inclusive storybooks that conflicted with their religious beliefs. Polk’s lawyers argue her case implicates the same interests—to an even greater degree. The Court itself suggested as much in Mirabelli, when it concluded “the intrusion on parents’ free exercise rights here—unconsented facilitation of a child’s gender transition—is greater than the introduction of LGBTQ storybooks …”
Polk’s lawyers ask the Court to intervene to resolve multiple layers of disagreement among the lower courts over similar gender policies—policies in place in over 1,200 school districts across the country, according to the Defending Education advocacy group.
Teachers in other jurisdictions have successfully challenged their school’s pronoun policies, in cases we covered here and here. In each of those cases, the courts agreed that the school’s name and pronoun practice amounted to compelled speech: the teachers were allegedly forced to resign not for what they said, but for what they refused to say.
If the Court grants review and rules along these lines in Polk’s case, it will be another win—this time not just for parents—but for the teachers who refuse to “socially transition” the students entrusted to their care to the opposite sex by using their “preferred” names and pronouns, all without their parents’ knowledge, much less consent.
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Comments
It may be time to rethink the entire concept of “public” – i.e. government run – schools.
I’ve been saying for 40 years that anyone who puts their child into the “public schools”, better known as collectivist indoctrination centers, is de facto guilty of child abuse.
Religious beliefs are only one of many, many reasons that ever-increasing numbers of parents are pulling their children from these government indoctrination centers. Private schools, home-schooling are both viable alternatives to government training camps.
Although I’ve never had children or grandchildren (I’m 69), I decided decades ago that any children I was responsible for would never set foot in a government school. This was back during the “New Math” debacle and an increasing emphasis on affirmative action, which allowed woefully unqualified people into classrooms to “teach”.
Sounds reminiscent of a Nazi excuse at the Nuremburg trials:
“The majority disagreed: Once in school, Polk spoke as an employee, not as a private citizen.”
So one has to suspend one’s humanity & religious beliefs to bow to the party rule?
I mean, that is what the left has always wanted. I hope SCOTUS gets this one right.
I’m going out on a limb here and suggest that if the Montgomery County School District didn’t waste their time coming up with woke policies that have nothing to do with education that their legal bills would be a lot lower. But what do I know? I’m just a straight white male who doesn’t belong to a victim group.
As to the complaint specifically, this sounds much like what Jordan Peterson was facing in Toronto a few years back – compelled speech. It was wrong in his case – not that it helped him in the end – and it’s wrong here.
We need to remove this notion that the civil rights end at the school house door, for students, teachers and parents. School administrators and teacher’s unions have gotten away with too much for too long.
Mr. Moss:
It must be noted that the school district, the school board, and the guilty administrators are NOT incurring these enormous legal bills for obviously unlawful actions.
It’s being paid by the taxpayers, who have absolutely no say in what’s happening.
If a PUPIL “expresses” a different gender at school, he or she should be smacked across the chops, and sent to detention.
I wish the Court would step back and say hold on, let’s take a deep dive into the definition of a “Policy”. For instance, if a police department adopts a policy of handcuffing people whom they encounter for a consensual conversation, can that be upheld because the police unilaterally decided it’s an extension of the policy that requires handcuffing those who are placed under arrest? No, because the 4th and 5th amendments still apply.
So, how did school policies, which are internal rules for employees, morph into power to control the child and his family? The Court should not get into the weeds on first amendment issues. It should simply rule that schools are not an exception to the Article I restrictions on legislative bodies other than the Congress nor are they an extension of the Executive branch’s enforcement powers. Schools are no different than restaurants — their employees cannot make policies that violate our civil rights. End it once and for all and expose teachers and administrators to the same public wrath that a restaurant would face if they made a policy not to sit Black people.
The kid here is undergoing a mental health crisis. Not letting the parents know and seeking true mental health care, well when is the next school mass shooting scheduled?
I’d hope the teacher breaks ranks and informs the parents. If that teacher set up a private school, I’d send my kids there. (Note, I have no kids.)
What I do not understand is why after the Supreme Court makes a ruling that is clear on two genders such as not having trans in women’s sports that the rest of Judges at all levels and places and rulings follow with two genders.
And I’m not a lawyer, but I would argue that KBJ should recuse herself from such cases, since she can’t define what a woman is.
How can a school run by a government bureaucracy not act like a school run by a government bureaucracy? The probability that the children in those schools will be indoctrinated by SOMEBODY’s ideology is 100%. What is the probability that it will be YOUR ideology?
Get the children out now.
Schools should provide a basic education not get involved in their mental illness.
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