CHICAGO (CN) — Attorneys for a Milwaukee woman argued in federal appeals court on Friday that her termination from her job as a school guidance counselor was a violation of her First Amendment rights.
Marissa Darlingh sued Allen-Field Elementary School, the Milwaukee Public School District and several administrators, arguing she had a right to express her views in an April 2022 speech at the state's Capitol, at a rally organizers titled "Sisters 4 Sisters."
The group of women who planned the event described it as a weekend of "radical feminist action, discussion, community and solidarity.” The rally drew many counter-protestors, who hurled insults at Darlingh and other participants, including referring to her as a “lesbian Nazi,” according to the appellants’ brief.
In her speech, Darlingh identified herself as a school guidance counselor with the Milwaukee Public Schools.
"I oppose gender ideology ever entering the walls of my school building. On my dead fucking body will my students be exposed to the harms of gender identity ideology. Not a single one of my students under my fucking watch will ever, ever transition socially, and sure as hell not medically. Absolutely not," she told attendees.
"I exist in this world to serve children. I exist to protect children," she continued. "I feel like I’m disassociating right now because this is very intense, very intense. I think someone else is speaking through me right now, but fuck transgenderism. Fuck it. Fuck transgenderism. Fuck these people behind us who want children to have unfettered access to hormones, wrong-sex hormones, and surgery."
A week after the speech, Darlingh received a letter from the Wisconsin Department of Public Instruction notifying her that she was under investigation, yet students interviewed said nothing but good things about Darlingh, she argued. “The only ‘criticism’ of Darlingh from these student interviews was that she enforces the rules during ‘circle time,’” according to the appellants’ brief.
Following her termination, Darlingh's federal First and Fourteenth Amendment lawsuit was dismissed, and a judge declined to order her reinstated as the school's guidance counselor. That order cited her eight-page termination letter, in which the school’s human resources officer wrote, “‘You make it very clear that you will do everything within your power to prevent a student in your building from transitioning or even expressing who they truly are.’"
"This violated the district’s policy against threatening or harassing language,” the order from the lower court stated.
On appeal Darlingh’s lawyer Luke Berg, of the Wisconsin Institute for Law & Liberty, wrote in a brief that the school is enacting a heckler’s veto, referring to when individuals who object to certain viewpoints attempt to create a disruption to silence speech they disagree with. He said teachers at the school tried to gin up support from students against Darlingh.
Berg noted that Darlingh repeatedly clarified that what she was trying to say in her speech was that she would not be the root cause of a student’s transition — not that she doesn’t support transgender students.
He cited a case in Maine wherein a school social worker gave a student a chest binder without their parents’ consent. Berg said some teachers are initiating social transitions, and Darlingh simply was speaking out against that.
Darlingh repeatedly told the school throughout her misconduct process that she would follow the parents’ lead as to a student’s names and pronouns, he argued in his brief.
“This case isn’t about names and pronouns,” U.S. Circuit Judge Ivana Rovner, appointed by George H.W. Bush, said during Friday's arguments. “It’s about something different.”
Berg maintained that it was reasonable for the school to do an investigation because of the vulgarity of her language, but it was unjust to fire her over it because she was commenting on a significant topic. He repeatedly cited the Supreme Court case Pickering v. Board of Education, which determiined that teachers have a right to public expression on social issues. There are caveats to the ruling; for instance, if the speech could disrupt the workplace, it would not be protected under the First Amendment.
U.S. Circuit Judge Kenneth Ripple, appointed by Ronald Reagan, likened Darlingh’s opinion to a “moral issue she’d put in the same category as religion.”
But attorney for the Milwaukee Public School District Katherine Headley said the ex-counselor's statements indicated she would defy the district’s rules, which means the speech was no longer protected by the First Amendment.
“The statements in Darlingh’s speech appear to commit her to not supporting a social transition, if her kids needed that support,” said U.S. Circuit Judge Diane Sykes, who was appointed by George W. Bush.
Headley agreed with Sykes’s characterization of Darlingh’s statements, particularly because Darlingh named her employer and job before she started speaking at the rally.
“There’s not even a scintilla of doubt as to where she stands on this issue,” Headley said. She also noted that if Darlingh had spoken against any other protected class, such as racial or ethnic minorities, there would be no question as to whether her conduct constituted harassment.
The court did not indicate when it would issue a ruling.
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