There is little question that a public school teacher can’t decide to reject the school’s curriculum and teach students that the world is flat. Maybe that’s what the teacher belives. Maybe that’s what the teacher’s religion mandates. So what? The teacher isn’t in the classroom to push his own agenda or religion, but to do a job for which he is hired, retained and paid. And that’s to teach what the district tells him to teach, right?
But that’s about the substance of what’s taught, not the language. Is it the same? The ACLU argues that it is in its amicus brief in Vlaming v. West Point School Board. The case involves a teacher who, despite a district non-discrimination policy, refused to use the pronouns of a transgender male student.
Consistent with its policy of providing equal treatment, the school district instructed Mr. Vlaming to “use male pronouns” when addressing a transgender male student “consistent with how you address other male students,” and to “treat [the student] the same as other male students, including the use of his preferred name and using male pronouns to refer to him.” The school district properly recognized that Mr. Vlaming’s refusal to use any gendered pronouns when addressing the transgender student—while continuing to use gendered pronouns when addressing everyone else—did not provide the transgender student with equal treatment. Instead, “Mr. Vlaming’s action had the effect of singling out the student in a way that was noticed by the student and his peers.”
The teacher argued that this violated his First Amendment right against compelled speech. In its very well-written brief, the ACLU argued “nah.”
“[S]choolteachers do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” but “certain limitations are placed on the free speech rights of schoolteachers . . . due to the nature of their employment by government-operated schools.” Lee v. York Cty. Sch. Div., 484 F.3d 687, 693 (4th Cir. 2007) (internal quotation marks and citations omitted). “In addition to being private citizens, teachers . . . are also government employees paid in part to speak on the government’s behalf and convey its intended messages.” Kennedy, 142 S. Ct. at 2423.
Is the use of preferred pronouns within the “certain limitations” argument?
A public schoolteacher’s in-class speech falls squarely within the heartland of Garcetti. “[T]he school system does not ‘regulate’ teachers’ speech as much as it hires that speech.” Mayer v. Monroe Cty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007). When teachers address students in the classroom in a compulsory K-12 setting, that speech “owes its existence to a public employee’s professional responsibilities”—here, to educate and provide an inclusive learning environment for students—and so “simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Garcetti, 547 U.S. at 421–22. For these reasons, every federal court of appeals to address the question has held that a public-school teacher’s in-class curricular speech does not qualify as speech by a private citizen on a matter of public concern for purposes of the First Amendment.
The problem, of course, is whether using a student’s preferred pronouns is “curricular speech,” for which the teacher is hired, or ideological speech which the district is superimposing on a teacher’s classroom performance and which compels the teacher to acquiesce to an ideological view with which he disagrees.
And lest the seriousness of this question not be clear, what if a teacher decided to use the “N-word” in class in reference to black students? It’s hardly any more or less curricular than a transgender student’s pronouns, but would that put it out of the district’s reach because of the First Amendment?
Plaintiff’s attempts to distinguish Garcetti are meritless. Despite Mr. Vlaming’s assertion to the contrary, the manner in which a teacher refers to students in the classroom is plainly part of the teacher’s “official duties.” Vlaming Br. 52. “[A]ddressing students is necessary to communicate with them and teach them the material” and “it is difficult to imagine how a teacher could perform his teaching duties on any subject without a method by which to address individual students.” Kluge, 432 F. Supp. 3d at 839. Talking to students—including students who are transgender—“is speech [Mr. Vlaming] was expected to deliver in the course of carrying out his job.” Kennedy, 142 S. Ct. at 2424.
While characterizing it as “plainly” does nothing to further the argument, the point that a teacher must communicate with individual students in order to teach is certainly clear, and doing so in a way that isn’t discriminatory or offensive would similarly seem pedagogically necessary. But what about alternatives, like not using pronouns but the student’s name so as not to “misgender” the student without compelling the teacher’s speech?
The school district’s policy is also the least restrictive means of furthering the school board’s interests. Mr. Vlaming asserts that the school district could have allowed him simply to refrain from using pronouns when addressing transgender students. As discussed above, however, a teacher who refuses to use pronouns when addressing a transgender student treats that student differently from all other students in the class. “Not only would” Plaintiff’s proposal “not serve the compelling interest that the School District has identified here, it would significantly undermine it.”
Is the refusal of a teacher to use pronouns when referring to a transgender student discriminatory treatment in itself, when the teacher uses pronouns when referring to other students? Indeed, this reflects the “stigmatization” issue raised when trying to create accommodations for the demands raised by transgender students. In the bathroom/locker room context, it was argued that it would stigmatize transgender students to use an individual bathroom when the other students used shared bathrooms.
While the rejection of any effort to accommodate disagreement with transgender demands has been met with absolute intransigence, there remains another issue under Title IX, whether failure to use the student’s preferred pronouns is so “severe, pervasive, and objectively offensive” that it denies students educational opportunity.
While the issue isn’t raised under the facts of Vlaming, the application of the rule argued by the ACLU, as students adopt ever-newer and odder gender identities, raises some wild questions of compelled speech in the classroom. On the other hand, should the district policy be that teachers should address students with the names and pronouns consistent with their school records, wouldn’t that too be a curricular dictate that the ACLU now argues teachers must follow?
The intransigence here at the expense of free speech, inter alia, is going to create significant and continuing problems down the line, as the ACLU persists in digging into sweet sounding but unprincipled positions.