A new federal appeals court ruling has sharpened a growing divide over whether public schools can force teachers to use students’ preferred pronouns.
On January 28, the Fourth U.S. Circuit Court of Appeals upheld a policy from a Maryland school district that requires teachers to address students using their preferred pronouns. The court also ruled that, in certain circumstances, teachers must keep a student’s transgender status private from their parents. This decision adds to the ongoing divide among federal courts regarding whether such policies violate the First Amendment.
The 2-1 decision in Polk v. Montgomery County Board of Education marks the latest development in a series of cases testing the boundaries of compelled speech and religious liberty in public schools.
In the Maryland case, substitute teacher Kimberly Polk argued that being required to use students’ preferred pronouns violated her free speech and free exercise rights. She had proposed using all students’ last names to avoid singling anyone out, but the district declined.
The majority concluded that the policy governs speech made as part of a teacher’s official duties and is therefore not protected under the First Amendment.
Relying on the Supreme Court’s 2006 decision in Garcetti v. Ceballos, the court held that “the Guidelines’ mandate does not concern the speech of a private citizen, but establishes the official duties of a public-school teacher.”
Judge J. Harvie Wilkinson dissented, writing, “This case is, without question, about compelled speech—a detail to which the majority gives short shrift.” He warned that under the majority’s reasoning, “there is no limit to the words the state can put in teachers’ mouths.”
The Seventh Circuit has taken a different approach.
In Kluge v. Brownsburg Community School Corp., a case arising from Indiana, the court partially sided with a school district that revoked a teacher’s religious accommodation, allowing him to use only students’ last names. The Court affirmed summary judgment in favor of the school district on retaliation claims. It remanded the core question of whether accommodating the teacher imposed an undue burden on the school to the lower courts.
“An employer is required to accommodate an employee’s religious practices unless doing so would impose an ‘undue hardship’ on its business. 42 U.S.C. § 2000e(j). At issue is whether the impacts caused by Brownsburg’s accommodation of Kluge rise to the level of an undue hardship under Groff v. DeJoy, 600 U.S. 447 (2023). Because material factual disputes exist, we reverse the district court’s grant of summary judgment to the school on Kluge’s accommodation claim and remand for further proceedings,” the majority wrote.
Other pronoun-related issues in education have been litigated by academics in cases such as Meriwether v. Hartop, which led to a 2021 ruling by the Sixth Circuit. In that case, involving an Ohio university professor, a unanimous panel held that forcing an educator to use a student’s preferred pronouns could constitute unconstitutional compelled speech. The court wrote: “[Shawnee State] punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment.”
Legal commentators say the emerging split increases the odds of Supreme Court review.
On the February 5 episode of the “Advisory Opinions” podcast, David French said the Fourth Circuit’s reliance on Garcetti highlights “the fundamental conceptual problem with Garcetti to begin with.” He described the issue as one that could soon reach the justices, adding, “And look, as this goes to the Supreme Court, that Garcetti question is going to be a very live question.”
Sarah Isgur, who co-hosts the podcast, said the Fourth Circuit’s ruling creates “an on-point circuit split now on compelled pronoun usage for teachers.”
There are only limited avenues left for appeal for some of these cases. Polk’s attorney told the Washington Post that the legal team is considering appealing the decision to the Supreme Court or seeking a rehearing before the full 4th Circuit.
The Supreme Court is the final authority in interpreting constitutional disputes, such as controversies over the meaning of the First Amendment, and it is the only judicial body with direct authority to resolve splits among circuit courts.
Until the Supreme Court weighs in, public school districts and educators across the country face varying constitutional standards depending on their location.
The Supreme Court has not yet agreed to hear any of the cases as of February 9.
