Polk v. Montgomery County Public Schools

The Liberty Justice Center’s PARENTS Initiative filed an amicus brief in Polk v. Montgomery County Public Schools, urging the U.S. Supreme Court to hear the case and protect the First Amendment rights of public-school teachers and the constitutional rights of parents.

The case concerns Montgomery County Public Schools’ policy requiring substitute teacher Kimberly Polk to use students’ preferred names and pronouns—even when they are inconsistent with a student’s biological sex—and to withhold information about a student’s social transition from parents. Ms. Polk objected to the policy because complying with it would conflict with her religious beliefs. Nevertheless, the U.S. Court of Appeals for the Fourth Circuit upheld the policy, concluding that it did not violate Ms. Polk’s rights to the free exercise of religion or free speech.

The Liberty Justice Center’s brief asks the Supreme Court to grant review because the Fourth Circuit’s decision conflicts with Supreme Court precedent on both religious freedom and compelled speech.

The brief explains that the Fourth Circuit misapplied the Supreme Court’s decision in Employment Division v. Smith by treating the school district’s policy as “neutral” unless religious hostility was the direct goal of the policy. But the First Amendment protects religious exercise not only from overt targeting, but also from government policies that operate with intolerance toward religious beliefs or treat religious convictions less favorably than comparable secular views.

The Fourth Circuit’s decision also conflicts with a recent decision from the U.S. Court of Appeals for the Ninth Circuit. In Bates v. Pakseresht, the Ninth Circuit held that a policy fails the First Amendment’s neutrality requirement when it is hostile to religious beliefs in operation—even without proof that religious discrimination was the policy’s motivating cause.

The Liberty Justice Center also argues that the Fourth Circuit misapplied Garcetti v. Ceballos, another Supreme Court precedent, by allowing a public school to compel a teacher to deliver a message that facilitates a violation of parents’ constitutional rights. While public employers may direct employees’ official speech in appropriate circumstances, they may not demand that employees communicate unlawful messages or participate in policies that undermine constitutional rights.

The Supreme Court has long recognized that parents have a fundamental right to direct the upbringing, education and care of their children. Montgomery County Public Schools’ policy allows schools to recognize and facilitate a student’s social transition without parental knowledge or consent. The Liberty Justice Center argues that this secrecy violates federal law and infringes parents’ constitutional right to direct the upbringing, education, and care of their children. Protecting families from such policies is precisely why the Liberty Justice Center launched its PARENTS Initiative.

“Public schools cannot force teachers to choose between their faith and their profession, nor can they require teachers to participate in policies that cut parents out of critical decisions about their own children,” said Timothy R. Snowball, Senior Counsel at the Liberty Justice Center. “We will continue to call out districts that fail to comply with federal law and violate these constitutional rights, and if necessary, take further action.”

The Liberty Justice Center recently sent a letter to California Attorney General Robert Bonta addressing similar policies and warning that California school districts implementing them are violating federal law. A copy of the letter is available here.

The Liberty Justice Center asks the Supreme Court to grant Ms. Polk’s petition and clarify that public schools may not force teachers to violate their religious convictions, compel speech on matters of profound moral significance or conceal important information from parents.

The Liberty Justice Center’s amicus brief in Polk v. Montgomery County Public Schools is available here.

More information about the Liberty Justice Center’s PARENTS Initiative is available here.