Amicus Brief: Polk v. Montgomery County Public Schools
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In 2022, Montgomery County Public Schools began requiring all teachers to (1) affirm they will use pronouns that match students’ selected gender identity and (2) promise to keep information about students’ transgender status a secret from their parents. Kimberly Polk, a substitute teacher who had received uniformly positive reviews, sought an accommodation because she could not comply with either requirement because of her religious beliefs about gender and sexuality. She did not get an accommodation, and she sued on the grounds that the policy violates both her free exercise and free-speech rights.
She lost at the district court and in the Fourth Circuit. Judge J. Harvie Wilkinson III wrote a vehement dissent from the Fourth Circuit decision, noting that MCPS had “established a hierarchy of public opinion valuing pro-transgender messages above more socially conservative positions” that crossed the bounds of permissible public-employee speech regulation.
Now on petition for Supreme Court review, the Manhattan Institute has filed a brief in support. We argue that the Fourth Circuit created a dangerous test for how to determine the "core job duties" of a teacher. As Judge Wilkinson pointed out, the test could mandate speech on many controversial topics that have nothing to do with curriculum. The school defined using selected gender pronouns as part of a teacher's "core job duties," but that could mean that a different school could say that not using preferred pronouns is a "core job duty." The law is unclear. Moreover, there could be a budding circuit split coming, as the Supreme Court of Virginia recently ruled the exact opposite in a similar case. The Court should take the case to clarify teachers' speech rights in the classroom.
Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.
Trevor Burrus is a legal policy fellow at the Manhattan Institute.
With thanks to associate Yonah Berenson
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