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Home – Pronoun Policy News – Fourth Circuit Ducked the Real Question in Pronoun Case

Fourth Circuit Ducked the Real Question in Pronoun Case

A Maryland school district can order a substitute teacher to use a student’s chosen pronouns and, according to the same policy, forbid her from telling that student’s parents. Kimberly Polk sued Montgomery County Public Schools over that combination, and in January the Fourth Circuit ruled against her, 2-1.

The panel’s reasoning traces back to Garcetti v. Ceballos, the 2006 case holding that when a public employee speaks pursuant to official duties, the government owns that speech, not the employee. Classroom instruction counts as official duty. So, the majority held Polk’s speech wasn’t hers to withhold and treated the district’s gender-identity guidelines as neutral and generally applicable for purposes of her free-exercise claim.

Judge J. Harvie Wilkinson III dissented, and dissented hard. His argument, stripped of the legal language: a policy that requires teachers to affirm one contested view of gender while leaving no room for any other isn’t neutral regulation of a public employee’s duties. It’s compelled belief with a paycheck attached.

To give the district its due, It’s true that school boards employ teachers to speak on their behalf in the classroom, and Garcetti gives them real latitude to control that speech. If Montgomery County’s guidelines were a curriculum requirement, this  would not be a close case. Teachers don’t get to freelance the English syllabus because they don’t like Shakespeare. Courts have upheld a school board’s right to set what gets taught, and Polk’s own filings never argued otherwise.

But that’s not what........

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