Court Upholds Termination of School Counselor for Speech at Rally
A Wisconsin school district terminated a school counselor after she delivered a profanity-laden speech denouncing gender ideology and transgenderism and their impact on children at a rally at the state capitol. The guidance counselor filed a civil rights lawsuit against the school board and three school officials 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 that the school district's interests as a public employer outweighed her speech rights under these circumstances. On appeal, the Seventh Circuit Court of Appeals upheld the dismissal in Darlingh v. Maddaleni (7th Cir. July 2, 2025).
After video of her speech at the rally appeared on YouTube, the school opened an investigation, ultimately firing her for violating school policies that prohibited abusive and intimidating language and bullying. The school also explained that her speech at the rally impaired her ability to perform as a guidance counselor, damaged the school's reputation, and undermined its mission to provide an equitable and supportive learning environment for all students.
On appeal, the Seventh Circuit Court of Appeals applied the U.S. Supreme Court's Pickering balancing test to the counselor's First Amendment claim. That test requires a court to determine whether the public employer's interests outweigh the employee's free speech rights. In applying that test, the Seventh Circuit examined whether the counselor's speech was constitutionally protected - i.e., was she speaking as a citizen on a matter of public concern? The Seventh Circuit determined that while the counselor's speech interests were strong, and the topic she spoke on was a matter of intense public concern, the context of her speech and her role as a school guidance counselor was important in the analysis. In balancing the school district's interest that guidance counselors have an "inordinate amount of trust and authority," against the guidance counselor's speech at the rally which the court found to be "a harsh, angry, and profanity-filled public pledge...that was hardly compatible with her obligation to build student and parental trust," the Seventh Circuit concluded that the school district's interests outweighed the guidance counselor's free speech rights in these circumstances. As a result, the guidance counselor's speech fell outside the scope of the First Amendment's protection as applied to public employment.
