Educators ask appeals court to protect off-hours speech

Attorneys for two Oregon teachers who spoke out on their school’s gender identity policy asked a federal appeals court Wednesday to overturn a lower court ruling in March that sided with their school district over their 2021 firings.

In an 84-page brief, attorneys for Katie Medart and Rachel Sager (formerly Damiano) argue that Grants Pass School District No. 7 retaliated against them for posting on social media a gender identity policy different than that adopted by the school district.

Medart was in her classroom at North Middle School in Grants Pass in April 2021 preparing to teach science to the students trickling in for the day—when she was summoned to the office.

“One of the vice principals walked in and said I needed to go see the principal of my school,” Medart recalled in an interview Monday. “I was shocked because students were in and it was right at the beginning.” She said the vice principal told her to pack her things because she wouldn’t be coming back. At the principal’s office she was given a letter placing her on leave for what she said the district called “inappropriate behavior.”

Sager, then an assistant principal at the school, was in the carpool line greeting students and saw Medart leave the building for her car. Sager, too, was summoned to the principal’s office, asked to leave, and handed a letter that stated she was being suspended for “inappropriate conduct with students.”

“I had to walk through the office to my office on the other side [and] grab my belongings,” said Sager. “I was right in the middle of working with one of our community liaisons for students. And I had to leave, and I was told not to do any work and not to do anything, which is very against my nature.”

Earlier that year, confused by inconsistent guidance from school district administrators on gender issues, the two veteran educators founded the grassroots organization “I Resolve” on their own time and outside school hours. They sought to promote “reasonable, loving, and tolerant solutions” for gender identity school policy that “respect everyone’s rights.”

The “I Resolve” proposals allow teachers to abide by their consciences and refrain from using pronouns inconsistent with a student’s sex. They also provide that locker rooms, showers, and restrooms be segregated by sex and yet give students the option to request access to private restrooms and locker rooms.

“We’re about the good of students and what’s best for them, and making sure that we are safeguarding freedoms for all,” said Sager. “That’s why we got involved and that’s why we continue in this fight, no matter the trouble that comes our way.”

According to Medart, the proposals seemed like a “win” for all—yet that was not how they were perceived by a handful of teachers who took to social media to rally support against proposals they called “anti-trans.”

“We had people on either side of the aisle … [and] with vastly different religious beliefs that all believed this makes sense,” said Medart. “This is workable. And it was just a very small handful of staff in the district that didn’t even work at the school that we worked at that had a concern.”

Alliance Defending Freedom and Pacific Justice Institute attorneys filed the brief on behalf of Medart and Sager. It calls out U.S. Magistrate Judge Mark Clarke for giving undue weight to the school district’s argument that the two educators’ speech caused LGBTQ students to feel unsafe.

The brief argues that much of the uproar was caused by a few other teachers in the school district who tried to rally online opposition to the “I Resolve” proposals. Yet Clarke dismissed those concerns as “a distinction without a difference, calling the two teachers’ speech the “catalyzing factor” in a “community backlash.”

Mathew Hoffmann, one of the ADF attorneys representing the teachers, said that teachers have a First Amendment right to speak out on matters of public concern—especially outside school and on their own time.

“If the government were to want to retaliate against these educators for their speech, they’d have to show an actual disruption to the business of the school district,” said Hoffmann. “But the Supreme Court has made clear that just the offense from a viewpoint others don’t like doesn’t constitute sufficient or any actual disruption.”

A similar conflict is playing out in Wisconsin, though with quite different facts. A teacher sued a school district on Sept. 5 after being fired earlier this year for criticizing Heyer Elementary School’s decision not to allow a song at a concert for first-graders and kindergartners that could be interpreted as supporting LGBTQ ideology.

Melissa Tempel claims the School District of Waukesha fired her after she posted on X, the platform formerly known as Twitter, criticizing school administrators for rejecting the song “Rainbowland” by Miley Cyrus and Dolly Parton. Administrators cited a school policy barring “controversial issues” from classrooms. The school opted instead for “Rainbow Connection” by Jim Henson as Kermit the Frog.

Ernie Walton, a professor and constitutional law expert at Regent University School of Law, criticized both the Oregon and Wisconsin school districts for violating educators’ right to free speech. “The idea that the state can punish an individual, including a state employee, for speaking out on controversial ideas on their own time is absurd,” said Walton.

He said both cases would have been more difficult had the offending speech taken place during instruction time when school officials have greater ability to control both conduct and curriculum. Yet he added that even when teachers are on duty, their rights do not end at the schoolroom door. “Teachers have First Amendment rights, and the government has no right to punish teachers for exercising those rights,” he said.

In a 2021 paper, Walton pointed out that public schools are a battleground between parents’ constitutional right to control the education of their children and governmental attempts to implement a state-imposed orthodoxy, often including “anti-racist” or gender ideologies. Yet he says the answer is not to quash teachers who speak out in opposition to or in support of such policies but to support attempts to deny proponents of controversial ideologies from using schools as indoctrination centers.

For Medart and Sager, their fight has been tough but worth it, they say. Both were offered different jobs with the school system, but Sager said she faced a lot of retaliation, including unfair evaluations, and was ultimately forced out. She now enjoys staying home to care for her 6-month-old child.

“My conviction ultimately came from my Christian beliefs, that God created man and woman, and so to tell a child something different than that is to lie to them,” Medart said. “And so I would challenge people … to not waver in that.” She added: “Be courageous.”