Two teachers at Escondido Union School District are suing the district over its policy to refer to students by their preferred pronouns and not disclose their gender identities to their parents without permission.
It's part of a larger trend of conservative groups using the First Amendment to skirt local and state laws on inclusion and protection for LGBTQ+ students at school.
The suit, filed last month in San Diego federal court, is fronted in part by the Thomas More Society, a conservative law firm that's been involved in lawsuits over abortion, religious freedom and the outcome of the 2020 election.
But the First Amendment issue raised in the lawsuit may not be on sound legal standing, said David Loy, legal director for the First Amendment Coalition.
"The Supreme Court has said that when public employees are speaking on the job as part of their official duties and speaking within the duties that are defined as part of their job, that is not their private speech protected by the First Amendment," he said.
He said while the Supreme Court has affirmed a public employee’s right to speak out against government policies, what teachers say in the classroom is part of their job duty and, therefore, not protected.
As far as the EUSD policy goes, Loy said, in this case, the district’s policy does not seem to violate the teachers’ free speech rights.
"That is most likely going to be considered speech pursuant to official duties for which public employees do not have constitutional protection," he said. "They must follow the directions of their employer to do their job as the employer has instructed them.”
Teachers, however, do have more leeway to speak out against policies they don't like because they are not in leadership positions at the school district. That's not the case for someone who is part of a school administration, Loy said.
An assistant principal at Carlsbad High School was caught on tape advocating against Carlsbad Unified School District's effort to be more inclusive. At a Mission Church meeting on May 19, Ethan Williams was giving a presentation on how to oppose the policy during the school board's listening tour.
"We want no sexual identity or gender ideology curriculum, groups, or celebrations on public school campuses,” he said in an audio recording obtained by KPBS.
In response, Carlsbad Unified Superintendent Ben Churchill released a statement saying he disagreed with and condemned the comments as against California's Education Code and the board’s resolution to support LGBTQ+ students and staff.
The Carlsbad Education Alliance, a conservative parent's group, however, said the superintendent’s statement violates Williams's First Amendment rights.
Loy said that's not the case here.
“That statement standing alone does not violate anyone's free speech rights because it does not represent any kind of adverse action against the assistant principal,” he said.
Though Loy said the district could be within its rights to discipline Williams because he is considered to be in a leadership position.
“From a First Amendment perspective, one who occupies a leadership position in a government agency is generally expected not to publicly oppose and resist the policies of that agency," he said. "Now, if he doesn't like those policies, he's certainly free to seek other employment.”
As for the religious freedom argument, Loy said he is not well versed in that area so he cannot offer an opinion on that aspect.
The Court has allowed for some religious exemptions before but the issue is not as clear cut.
