ACLU Picks Its Side, And It’s Not Free Speech

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.

17 thoughts on “ACLU Picks Its Side, And It’s Not Free Speech

  1. Miles

    Between Strangio and Block, the ACLU chose to go all in on transgender “rights” long ago, to the exclusion of any and all conflicts and at the expense of everyone and everything. Their inflexibility to any accommodation other than complete submission to the interests of transgender people has been clear for a long time now, no doubt in the hope that they will someday be recognized as the saviors of transgender people.

    I wonder whether they will someday be understood as being the biggest stumbling blocks to the end of discrimination against transgender people because of their absolute intransigence and recognize that we all have to live together, and that a nation cannot survive when its laws and rules require the extreme majority to become servants to a tiny minority.

    1. SHG Post author

      Either we can try our best to fashion a society that accommodates the needs of both the majority or minority, or it becomes a zero sum game and someone gets crushed. If transgender people win and achieve social control, Strangio and Block will be the heroes. If not, then the refusal to try to get along may prove to be a very bad choice.

      And as for the arguments they make here, they’re likely to really regret them when they’re thrown in their face as the ACLU fights anti-CRT laws. Hypocrisy is a bitch.

  2. Ken Hagler

    The brief keeps talking about the pronoun used when _addressing_ a student. When you address someone the pronoun used is “you,” which is gender-neutral. Unless the teacher was addressing the student in a way appropriate to the situation, such as “you ridiculous lunatic,” the issue is actually how the teacher _refers to_ the student. I suppose it’s fitting given the subject that the people at the ACLU have a poor grasp of English.

  3. Mark Daniel Myers

    “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.”

    This does seem the crux of the issue. Describing identity as ideology, for those who refuse to use “those” pronouns, neatly elides the basis for such refusal. I wonder if anyone who agrees with Mr. Vlaming wants to articulate the basis for refusing to use someone’s pronouns.

    1. SHG Post author

      That’s a very interesting question. Do you need to justify your exercise of a constitutional right to the unduly passionate?

      1. Mark Daniel Myers

        Vlaming’s opening brief to the Virginia Supreme Court was a better, longer, more compelling brief, that addresses issues the ACLU ignores. From the introduction:

        The School Defendants fired Peter Vlaming, a liked and well respected high-school French teacher, simply because Vlaming declined to affirmatively express his personal agreement with messages that violate his religious beliefs. Specifically, he declined the School’s and a parent’s demand that he use biologically incorrect “preferred pronouns” to show a student who identified as transgender that he affirmed and agreed with that identity.

        [Ed. Note: Thoughtful to provide your source, but still deleted.]

        I understand the focus of the post is on the ACLU’s apparent abdication of free speech principles, and that there are issues beyond the focus of this post. To directly answer your question, however: of course not.

        1. SHG Post author

          Is it amusing or sad that you had to preface the three final words by pointlessly murdering all those that came before them?

  4. Elpey P.

    The ACLU continues its newfound mission as handmaiden to institutional authority in the name of an illusory, incoherent “social justice.” There are upstream issues here, but If somebody is going to step up to make the “you should just be following orders” argument (even if those orders literally contradict themselves) seems like they would have been an odd candidate in the past. Pretty soon they will be offering a hedged apology for their name including the dog whistle “civil liberties.”

  5. Hunting Guy

    Seen on a bumper sticker.

    “My freedom of speech doesn’t end at your feelings.”

    Having said that, is this case not similar to the restrictions on military personnel? You agree to certain things when you sign on the dotted line. If you don’t agree, then you get out.

    IANAL and maybe that’s too simplistic.

  6. B. McLeod

    The whole point of the attempt to compel usage of “preferred proniuns” is to force people to speak as though they accept gender as a subjective construct rather than an objective physiological characteristic. These pronoun policies seek to enforce a totalitarian ideology, and ACLU is simply beclowning itself with its disingenuous pretenses.

    1. SHG Post author

      I was told that refusal to use preferred pronouns meant you wanted people to die. Was that not true?

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