Constitutional – Substitute teacher’s Free Speech claims over gender pronouns fail

Where a substitute teacher alleged the Montgomery County Board of Education duly-adopted guidelines — which required her to affirm that she would refer to students by their preferred pronouns and that she would not discuss any student’s gender identity with the student’s parents — contravene her First Amendment rights, these arguments failed.

Background

Kimberly Ann Polk, who worked for a time as a substitute teacher, maintains that the Montgomery County Board of Education duly-adopted guidelines — which required her to affirm that she would refer to students by their preferred pronouns, and to also affirm that she would not discuss any student’s gender identity with the student’s parents — contravene her First Amendment rights to the free exercise of religion and free speech.

Predicated on those constitutional claims, Polk asserts that she is entitled to a preliminary injunction. The Board opposed Polk’s request for injunctive relief and moved to dismiss the complaint.

The district court granted the Board’s motion to dismiss Polk’s Free Exercise and Free Speech claims and declined to dismiss her Title VII claim. The court thus cabined its preliminary injunction analysis to the Title VII claim only, which it characterized as Polk’s “sole remaining claim in the lawsuit.” It denied Polk a preliminary injunction for her failure to show irreparable harm.

Jurisdiction

Polk contends the district court erred in denying a preliminary injunction as to the Free Speech and Free Exercise claims. But in the context of this § 1292(a)(1) appeal from the denial of a preliminary injunction on the Title VII claim only, this court cannot accord Polk such relief unless it firsts assess the court’s Rule 12(b)(6) dismissal of the Free Speech and Free Exercise claims. It would do no good to conclude that Polk is entitled to a preliminary injunction on the Free Exercise and Free Speech claims without first reinstating them.

Thus the jurisdictional question is whether this court possesses jurisdiction to review the district court’s Rule 12(b)(6) merits-based dismissals of the Free Speech and Free Exercise claims, even though the Title VII claim remains viable in the underlying litigation? The answer is yes. This court can exercise pendent appellate jurisdiction and review the court’s Rule 12(b)(6) dismissals of the Free Exercise and Free Speech claims.

Free Exercise

A plaintiff must show that a government entity “has burdened [her] sincere religious practice pursuant to a policy that is not ‘neutral’ or ‘generally applicable.’” The complaint plausibly alleges a religious burden: Polk believes that gender is rigid, based on her understanding of Christianity. And referring to her students by a gender that is not consistent with the student’s gender assigned at birth places a requirement on Polk, that she says is at odds with her faith.

In the Guidelines, however, there is no mention of anything about religion. It therefore makes good sense that the district court determined the Guidelines to be facially neutral. And Polk agrees with that ruling. However even a facially neutral law or policy can act as a “covert suppression of particular religious beliefs.”

Consequently, the central question in reviewing a facially neutral law is to discern the motivation for its implementation, not merely its impact on a specific individual. Here, Polk failed to allege any conduct or statement by the Board that evinces a “beneath-the-surface” hostility toward those holding particular religious views.

Turning to whether the Guidelines are generally applicable, Polk says that the Board did not require all school staff members to “check the box” to acknowledge compliance with the Guidelines until the 2022-23 school year. Second, she maintains that, because the Board possesses unbridled discretion of “whether and how to discipline . . . [her] if she violated the Guidelines while teaching,” the Guidelines are not generally applicable. Both contentions fail. Finally, the Guidelines survive rational basis review.

Free Speech

In determining whether a public employee’s free speech rights have been violated, the court first considers “whether the employee ‘was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest.’” Here, the Guidelines’s mandate does not concern the speech of a private citizen, but establishes the official duties of a public-school teacher. More pointedly, 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.

Affirmed.

Dissenting opinion

Wilkinson, J., dissenting:

Because MCPS’ policy compels speech on a noncurricular matter, and because reasonable alternatives existed (e.g., using only students’ last names), I would hold that the Pickering balancing test applies and favors Ms. Polk.

Polk v. Montgomery County Public Schools, Case No. 25-1136, Jan. 28, 2026. 4th Cir. (King), from DMD at Greenbelt (Boardman). Frederick W. Claybrook Jr. for appellant. Cassandra Ann Mitchell for appellee. VLW 026-2-032. 46 pp.