Legal Docket: Prohibiting speech in advance

NICK EICHER, HOST: It’s The World and Everything in It for this 29th day of July. We’re so glad you’ve joined us today. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

It may be summertime, but the living is not easy because legal disputes continue roiling in the lower courts, some of which seem to be candidates for Supreme Court review. That most likely includes clashes over gender ideology in public education.

A first-of-its-kind law in California has the highest probability to produce lots of legal fodder in this area. Governor Gavin Newsom signed a law under which teachers are no longer required to inform parents of a child’s change of gender identity at school. This so-called “Safety Act” is set to take effect in January.

EICHER: One day after Newsom signed the law a local school district and several parents filed a court challenge.

These battles are not confined to California, either.

Up in Oregon, a school district fired two teachers who had proposed alternate ways of handling the gender wars.

One of those teachers is Katie Medart. She taught science at Grants Pass School District 7.

MEDART: I was in the classroom, started out in high school, went to teach college, came back and about eight years of being away, before we never thought, Mary, about pronouns. There was no such thing as a pronoun request. And then after eight years of stepping away and coming back into public K -12, I was, it was alarming to hear that a student of 11- to -13 year -olds saying, “these are my pronouns that I go by.” And seeing that concern and then hearing adults talk about not involving parents.

REICHARD: At the invitation of the school district, Medart and assistant principal Rachel Sager came up with solutions aimed to help all kids and to respect families with different ideas.

They started a grassroots organization called “I Resolve.” Its purpose was to put their policy ideas before others for input … and allow teachers to teach without violating their consciences. The goal was to protect parental rights and conscience rights.

The school was not identified in the platform and the two did this on their own time. The only work resource used was email to help spread the word.

The baseline question: does this policy serve and respect all? Here’s Rachel Sager, the assistant principal:

SAGER: Well respecting students is always something that I strive to do and feel that I’ve accomplished. But respecting students doesn't always look the way that they demand of you in some ways. And that's not just with gender. That's in other ways, right? If a student says, no, I'm going to stand. I'm going to pace around the classroom. I can be respectful to a student and kindly ask them to sit down. But when it comes to pronouns, I've always been able to, with students, they've wanted to go by a different pronoun or a different name, been able to say, can I try to just not use pronouns with you? Can I call you by your last name? I've been a coach of various sports, and calling students by their last name, I've never had an issue with that. And so I’ve never had a student be concerned about how I’ve treated them.

EICHER: The school district had received complaints from people upset by Sager and Medart’s proposed policy solutions.

And then things changed …

SAGER: So it actually wasn't a policy and that was the concern. We had an admin memo that came down that was secretly given just to administration and it was in regards to use of pronouns, use of preferred names for students and use of bathrooms. And it didn't go through the school district board. It was just given to administrators and there were some concerns that I had about the violation of freedom of speech that was in that memo in regards to requiring pronoun use, requiring preferred name use. And one of the large concerns as well was that parents were not involved in the way that the memo was written. You could actually cut parents out completely, not let them know what was happening. And then bathroom use in terms of letting students use the opposite gender bathrooms and locker rooms was also of concern for the safety of our students.

EICHER: Now’s a good time to note: the school district took no disciplinary action against employees who expressed support for gender ideology.

The teachers pointed to that as evidence of viewpoint discrimination.

REICHARD: Still, Sager and Medart were fired. So they sued on free-speech grounds, equal protection, and Title VII which bars discrimination in the workplace.

One of their lawyers is Tyson Langhofer of Alliance Defending Freedom:

LANGHOFER: And what we know about the First Amendment is that the public schools can't retaliate against staff for sharing their opinion on matters of public concern. Another really important fact is all that Katie and Rachel were doing was advocating that the school go back to the policy they had prior to this recent change. That's really important to understand because what we're, the principle that we're fighting for, is that teachers should be able to participate in policy discussions about important policy decisions being made by schools, especially when it affects the rights of teachers and when it affects the rights of parents to understand what's going on with their students in school.

But last year, district court Magistrate Judge Mark Clark granted summary judgment in favor of the school district. He based his decision in part on a finding by the school that the teachers had been “disruptive” to the “school environment.”

Sager and Medart appealed that decision and the U.S. Court of Appeals for the 9th Circuit heard the argument last month.

Now, I sought an interview with the school district but received no response to my request.

So here’s what I gather about the position the school district has taken: The level of opposition among some members of the community required school employees to respond to voluminous complaints, and that was so disruptive that firing Sager and Medart was the only solution.

EICHER: The appeals court panel tried to figure out how to measure that “disruption” and determine what speech was off campus and what was on.

It didn’t seem to go so well for the school district at the appeals court hearing. Listen to this exchange between lawyer for the school district Beth Plass and Circuit Judge Danielle Forrest:

FORREST: Are teachers allowed to get involved in the politics of an election?

PLASS: Of course. Of course.

FORREST: And isn’t that potentially disruptive when people disagree, as we live in an age where there’s a lot of disagreement?

PLASS: Absolutely.

FORREST: So I guess I’m struggling in the same way that Judge Rawlinson is. And how does that work?

Judge Johnnie Rawlinson saw another problem with the school district’s approach:

RAWLINSON: But to prohibit speech in advance, that's the problem. I understand that the school district has the ability to deal with the speech once it has been once the speech has taken place, but to prohibit it in the beginning. Why isn't that unconstitutional to say you can't even speak without knowing what the speech is going to be. How is that constitutional?

The school district attorney did not really have an answer to that.

Representing Sagar and Medart in the same hearing, ADF lawyer Matthew Hoffman pointed out that constitutional rights cannot be infringed based on mere the volume of complaints:

HOFFMAN: We don’t know who they’re from, they’re not from current North parents or students, and they don’t threaten that their kids will leave the school … and so just the volume alone doesn’t mean much …

… going on to argue for an informed public:

HOFFMAN: They just advocated for a change, and the Supreme Court has been clear that teachers should be free to advocate for change. Otherwise, you know, we don’t really have the ability to create an informed public opinion and continue on with our free debate.

For now, they await the 9th circuit’s decision in the next few months.

REICHARD: People who stand up for their rights in court have to withstand a lot of pressure. I asked each teacher what she’s learned so far.

For Sager, it’s how cancel culture made teachers who privately supported her back down—as the school district did:

SAGER: The number of teachers that reached out to us and said, we're now fearful. Can you take us off of your support list? Can you not let them know that we support you? It was surprising, but also not surprising, right? To put in a policy like they have that's so anti-constitutional and that restricts freedom of speech both on and off campus scares teachers and to see what they did to us scares teachers.

Medart told me that the focus of school discussions was to villainize parents, assuming that most parents are not loving and do not want the best for their own children.

Still, she says:

MEDART: God is faithful. I mean, it's probably one of the most challenging stages of life. And just experiencing his faithfulness going through the process the last three years, when you feel discouraged, He will give you a reminder that says He has you. I've also learned that it's worth standing up for truth. And I’m really grateful for random strangers to show acts of kindness and to rally to stand with us with truth.

We will report back on what the appeals court decides.

And that’s this week’s Legal Docket.

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