Educators contest firings over their views on gender

Onlookers filled the historic Pioneer Courthouse in Portland, Ore., for the 9th U.S. Circuit Court of Appeals hearing on Monday. “If you’re unable to get a seat, you’ll have to stay outside and listen to the proceedings,” U.S. Circuit Judge Johnnie Rawlinson told the crowd as spectators filed in.

During the hearing, federal judges questioned the breadth of an Oregon school district’s policy barring employees, “while on district premises or acting within the scope of employment,” from “supporting one side of any political or controversial civil issue.”

Katie Medart and Rachel Sager argued that Oregon’s Grants Pass School District No. 7 fired them in 2021 because they posted on social media a gender identity policy different from that adopted by the school district.

Medart, a science teacher at North Middle School, and Sager, an assistant principal, founded the grassroots organization I Resolve on their own time and outside school hours. As Christians, the two believe that God creates each person with an immutable sex, either male or female, and that rejection of biological sex is a rejection of the image of God. They also believe that referring to a student in a manner inconsistent with his or her sex is lying to that student.

Concerned about the school district’s embrace of a fluid gender orthodoxy, the two suggested a different policy—one that allowed teachers to follow their consciences and refrain from using pronouns inconsistent with a student’s sex. They also proposed that the school’s policy 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.

The two submitted the suggestions to administrators as a “win-win” for students and teachers. But a few teachers saw it differently, labeling the two women “anti-trans.” In April 2021, a vice principal sacked both, calling their conduct “inappropriate.”

With the help of Alliance Defending Freedom, Medart and Sager contested the firings, arguing that the district violated both their free speech and religious liberty rights. But in a March 2023 order, a federal judge awarded summary judgment to the school district.

U.S. Magistrate Judge Mark Clarke found that the two educators’ proposals, even though communicated on their own time and off premises, caused a disturbance to the work environment. “Teachers and staff were offended or upset by [the] plaintiffs’ conduct,” said Clarke, while ADF attorneys argued that a handful of vocal opponents fueled the real disturbance.

The district eventually flip-flopped on its firing decision and reinstated both Medart and Sager, but to inferior positions in the district’s online school, effectively limiting their interactions with students.

While all three judges grilled both the teachers’ attorney and the school district’s attorney at Monday’s hearing, the harder questioning fell on the school district’s attorney.

“Could you talk about the district’s policy of prohibiting comment on controversial matters by the teachers? Do you think that policy is constitutional?” asked Circuit Judge Rawlinson, a Bill Clinton appointee. School board attorney Beth Plass hedged, initially responding that she could defend the policy in regard to on-campus speech. When Rawlinson pressed her on off-campus speech, she limited her defense of the policy to off-campus speech that caused disruption at school.

Circuit Judge Danielle Forrest, a Donald Trump appointee, echoed Rawlinson’s concerns. “Are teachers allowed to get involved in the politics of an election, and isn’t that potentially disruptive when people disagree, as we live in an age where there’s a lot of disagreement?” she asked Plass. “So I guess I’m struggling in the same way that Judge Rawlinson is.”

In the end, judges seemed to question what magnitude of disruption to the school environment would be compelling enough to justify censorship of speech. That question turned on application of a test set out in a 1968 Supreme Court case, Pickering v. Board of Education. Under the Pickering test, to restrict an employee’s free speech, a school must show it “had a legitimate administrative interest in suppressing the speech that outweighed the plaintiff’s First Amendment rights.”

Judges asked both Mathew Hoffmann, the ADF attorney who argued on behalf of Medart and Sager, and Grants Pass attorney Plass whether the complaints that were made about Sager and Medart views were so disruptive as to justify censoring their speech.

Hoffmann pointed to the circuit’s own ruling in a 2022 case, Dodge v. Evergreen School District #114, where a panel of the court ruled that “disagreement with a disfavored political stance or controversial viewpoint, by itself, is not a valid reason to curtail expression of that viewpoint at a public school.” (Circuit Judge Forrest, who was on Monday’s panel, wrote the opinion.) Something substantially disruptive was required, Hoffmann said, and that did not occur at North Middle School.

But Plass argued that even potential disruption was a compelling enough reason to curb an employee’s speech. In rebuttal, Hoffmann returned to his argument that disagreement—even if widespread—doesn’t justify shutting down constitutionally protected speech.

Tyson Langhofer, an attorney with ADF who was present in the courtroom Monday, clarified that there were only five formal complaints about Medart and Sager, all from teachers who disagreed with them. None came from students or parents of students in either Medart’s or Sager’s classes. “Nothing happened to prevent the school from delivering the education to the students that they said that they needed to deliver,” he said.

“The volume of the complaints alone cannot be a basis for termination actions,” Hoffman told judges. “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.” In short, there is no disruption justifying the terminations, he said—or for setting aside a First Amendment right.

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

Langhofer said the case highlights the fallacy of elevated concerns about speech alone causing harm. “It’s wrong for us to believe, and for the government to start taking the position, that a teacher is inherently going to harm some students simply because they disagree on what policy should be adopted by school systems,” he said. “That’s not only wrong morally, but it’s wrong constitutionally.”