Termination of School Counselor for Profanity-Laden Speech
A school district in Milwaukee, Wisconsin, terminated a school counselor following her profanity-laden speech against transgenderism given at a rally at the State Capitol. Following her termination by the school district, she filed a civils rights lawsuit claiming she was unlawfully fired in retaliation for exercising her First Amendment right to freedom of speech. The district court denied her request for a preliminary injunction and dismissed her First Amendment claim, finding in favor of the school district, specifically that the school district's interests as a public employer outweighed her speech rights under these circumstances. The 7th Circuit upheld the district court’s decision holding that her speech fell outside the scope of the First Amendment's protection as applied in the context of public employment.
The Court analyzed the facts of the case considering when a public employee “speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences… [using a] list of seven factors that may be relevant to Pickering balancing:
(1) whether the speech would create problems in maintaining discipline or harmony among co-workers; (2) whether …the employment relationship is one in which personal loyalty and confidence are necessary; (3) whether the speech impeded the employee's ability to perform her responsibilities; (4) the time, place, and manner of the speech; (5) the context in which the underlying dispute arose; (6) whether the matter was one on which debate was vital to informed decision making; and (7) whether the speaker should be regarded as a member of the general public.”
The 7th Circuit (Court) took note of the fact that she introduced herself to the crowd as a school counselor for the Milwaukee public school district. The Court explained that the role of teacher and school counselor are positions of great public trust and authority. “These positions by their nature require “a degree of public trust not found in many other positions of public employment.” The Court found that the school counselor’s “speech was fundamentally at odds with this foundational duty. It was not a calm, reasoned presentation of her views on this sensitive subject. She made a harsh, angry, and profanity-filled public pledge to carry out her counseling duties in a relentlessly rigid way when it comes to transgender issues. That pledge was hardly compatible with her obligation to build student and parental trust when counseling children with gender dysphoria or who otherwise struggle with gender-identity concerns. Nor is it compatible with her responsibility as a school counselor to promote respect for and humane treatment of these children by other students. Darlingh vowed that “not a single one” of her students would “ever, ever transition” on her watch, punctuating her promise with multiple expletives. In this way she signaled to students and parents an inability to deal with this sensitive subject with equanimity, civility, and respect for different views. Her speech is hard to reconcile with her professional obligation to approach her counseling duties with empathy and good judgment.” The termination letter she received explained that her speech impaired her ability to perform her role as a school counselor, damaged the district's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students.
The court determined that the Pickering balance tipped in favor of the school district mainly because of “…the speech itself, the sensitive nature of Darlingh's job, and the school district's reasonable assessment that her profanity-ridden remarks expressed a fixed commitment to carry out her duties in a way that conflicted with its mission and policies, to the detriment of the district, students, and parents.”
A copy of the decision can be found here.