A loss for free speech in the classroom

In a Maryland school system with roughly 160,000 students, substitute teacher Kimberly Ann Polk thought it would be easy for officials to place her in a classroom without students who identify as transgender. But in her second year of working at Montgomery County Public Schools (MCPS), officials asked Polk to agree to support a child’s so-called gender transition by using the child’s preferred name and pronouns, all while hiding this from the parents.

Polk couldn’t agree to the policy because of her religious beliefs, so she asked the school if she could work around it by substituting in classrooms with younger students who didn’t have preferred pronoun requests. Officials refused, and now, more than three years later, Polk is still entangled in a legal battle against MCPS that has worked its way up to the 4th U.S. Circuit Court of Appeals.

On Wednesday, a 4th Circuit panel sided with the school district. In a 2-1 decision, the judges ruled that the school’s gender identity policy doesn’t violate the substitute teacher’s free speech and religious liberty rights. The dissenting judge, though, cautioned that the majority opinion gives schools the ability to dictate teachers’ speech.

Polk began substituting at MCPS during the 2021-2022 school year. When she reapplied for the following year, officials required her to watch videos on MCPS policies and procedures. One of these highlighted the school’s Guidelines for Student Gender Identity, which require teachers to go along with name and pronoun requests for children as young as 3 years old. If school officials don’t believe parents will agree with the plan, they require teachers to hide any information about it from parents.

At the end of the video presentation, Polk was asked to click a box signaling she would fully adhere to these guidelines. But Polk didn’t feel she could—as a Christian, she believes it is wrong to help children “to present as other than their God-given sex,” according to the lawsuit, and unethical to lie to parents.

She asked MCPS officials for a religious accommodation, arguing that she could easily substitute in classrooms where transitioning students were not enrolled. While a school compliance coordinator initially led Polk to believe this accommodation was possible, the school rejected her request in December 2022. Since then, the district has not allowed Polk to teach. I contacted MCPS for comment, but the district did not respond before publication.

In August 2023, Polk filed an employment discrimination complaint with the Equal Employment Opportunity Commission. After months of no response, she filed a lawsuit against MCPS officials in May 2024. Just one day earlier, the Supreme Court had declined to hear a case challenging the same gender identity guidelines.

In Polk’s complaint, she contends that the district’s policy compels her speech and requires her to act against her beliefs, violating the First Amendment and specifically its free exercise clause. She also argues that under the employment discrimination law known as Title VII, she is entitled to a reasonable accommodation for her religious beliefs. Polk is seeking monetary damages for her lost wages from MCPS.

In January 2025, a U.S. District Court dismissed both her free speech and free exercise claims and refused to grant her a preliminary injunction. But the court allowed her Title VII claim to move forward.

Wednesday’s ruling from the 4th Circuit upheld the lower court’s opinion. Writing for the majority, Circuit Judge Robert Bruce King said that Polk’s free speech claims fail “at the gate.” MCPS’ gender identity guidelines simply establish the official duties of a public school teacher, he said.

“How a teacher addresses a particular student in a particular classroom—and whether a teacher communicates with a student’s parent—is merely a part of that teacher’s job description,” King wrote.

He added that Polk was not forced to be a teacher for MCPS, but by accepting her job, she was subject to a “substantial degree of control” by the school board.

Circuit Judge J. Harvie Wilkinson III dissented. “If the majority’s reasoning is correct, then there is no limit to the words the state can put in teachers’ mouths,” he wrote. “Teachers become, for all intents and purposes, the state’s anointed messengers. Are we now to allow states to mandate that teachers voice opinions contrary to their own without any First Amendment protection whatsoever?”

Wilkinson questioned whether, under this opinion, schools could force an Israeli teacher to wear a pro-Palestine pin or require an atheist teacher to recite the pledge of allegiance with the words “under God.”

While MCPS argues its guidelines are merely administrative requirements for teachers, they clearly compel Polk’s speech, said Rick Claybrook, a religious rights attorney who represents Polk. The school isn’t just directing the speech she uses in teaching curriculum, he argued. Instead, it has created a broad, sweeping policy to control what Polk says.

Polk is still weighing her next steps following the 4th Circuit’s unfavorable ruling, Claybrook said. She can either ask the full circuit court to hear her case, appeal to the Supreme Court, or choose not to appeal and instead see what the District Court ultimately rules on her Title VII claim.

Claybrook said he has represented several parents who have sued the Montgomery County school district over the same gender identity guidelines. Last summer, the U.S. Supreme Court ruled against the district over its LGBTQ curriculum, siding with a coalition of parents from multiple religious backgrounds who wanted to opt their children out of classes with LGBTQ-themed storybooks.

Schools across the country are contending with similar gender secrecy policies. A group of California teachers and parents appealed to the Supreme Court in January in a class-action lawsuit that would ensure all teachers in the state aren’t forced to lie to parents and that all parents aren’t kept in the dark about their children.

Policies like these force teachers to conspire with schools to violate fundamental parental rights, Claybrook said.

“A teacher does not lose her own free speech rights when she goes through the schoolhouse gate,” Claybrook said. “You’re forcing her to speak words she doesn’t want to speak. 
You’re forcing her to hide from parents things she doesn’t want to hide.”

Editor’s note: This story has been updated to correct the name of the dissenting judge.