Appeals court reinstates lawsuit by Oregon educators fired for challenging gender ideology

An Oregon school district will face trial for alleged First Amendment violations by firing educators who lobbied their colleagues against its proposed gender identity policies, under a 9th U.S. Circuit Court of Appeals ruling overshadowed by the Supreme Court's affirmation of state prohibitions on medicalized gender transitions for youth.

But its officials won't face personal liability because "it was not clearly established in 2021 that a school district could not terminate a teacher and assistant principal" following "significant actual and predicted disruption" to district operations from their speech, the unanimous three-judge panel said in mostly overruling a lower court's summary judgment.

"The court affirmed that educators don’t give up their First Amendment rights just because they work behind the schoolhouse gate, and public schools can’t retaliate against speech simply because they disagree with what’s said," said the educators' lawyer, Matthew Hoffman at the Alliance Defending Freedom, alluding to the SCOTUS student speech precedent Tinker.

Another appeals court, the 6th Circuit, wasn't sure Tinker protected students who wore sweatshirts to school with the phrase "Let's Go Brandon," a media-created euphemism for a profane chant against then-President Biden, in recent oral argument.

Rachel Sager, who started the litigation as Rachel Damiano, and Katie Medart got rehired the fall after their dismissal due to a Grants Pass School District board member flipping his vote, though ADF's opening brief at the 9th Circuit characterized their new jobs as "inferior positions." U.S. District Judge Mark Clarke refused to let the duo refile after dismissal.

The decision is notable for Democratic nominees – President Biden's Judge Jennifer Sung and President Clinton's Judge Johnnie Rawlinson – upholding the speech rights of teachers advocating for the primacy of sex over gender identity in language and access to intimate spaces, joined by President Trump nominee Danielle Forrest.

They said Judge Clarke was too quick to rule out factual disputes about "the circumstances of plaintiffs’ expressive conduct and the extent of the resulting disruption" to the district, whether it "treated similarly situated employees differently based on their views on gender identity" and the credibility of the district's "proffered reasons for the terminations," in Sung's opinion.

These include how often, if ever, Sager and Medart promoted their "I Resolve" campaign, including a video that didn't identify their jobs or affiliation, when they were on the clock and not authorized personal breaks during the school day, and whether Medart was describing a "hypothetical" gender-confused student or "a real student" in the video.

The evidence of student protests against the duo's reinstatement to the district is also "limited and lacks specificity," meaning that "material facts related to the magnitude of actual and predicted disruption – including the total number of protests and level of student participation – are genuinely disputed," the opinion said.

The panel faulted Judge Clarke for granting summary judgment to the district on the educators' prior restraint and compelled speech claims on a legal basis "was too unclear for proper review." Clarke "arguably deemed" that Sager and Medart had "conceded" these claims by not fully arguing them, but then he "arguably addressed the merits of these claims."

The district hadn't answered a query as of Friday. Local NBC affiliate KOBI reported that the district "has repeatedly declined to comment, citing the ongoing nature of the litigation."