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Florida Teachers Have No First Amendment Right to Indicate Their Preferred Pronouns and Honorifics in Class
So an Eleventh Circuit panel held today, by a 2-1 vote.
Excerpts from the 9,400-word Wood v. Fla. Dep't of Ed., decided today by Eleventh Circuit Judge Kevin Newsom, joined by Judge Andrew Brasher:
Katie Wood is a transgender woman who teaches at a public high school in Florida. Two years ago, the state enacted Fla. Stat. § 1000.071(3), which, as applied to Wood, prohibits her from using the honorific "Ms." and the gendered pronouns "she," "her," and "hers" in exchanges with students during class time. Wood sued to enjoin the enforcement of § 1000.071(3) against her. The district court granted Wood a preliminary injunction, finding it substantially likely that the law violates her First Amendment right to free speech.
We disagree. Because we hold that Wood hasn't shown a substantial likelihood that § 1000.071(3) infringes her free-speech rights, we vacate the preliminary injunction and remand the case to the district court for proceedings consistent with this opinion….
Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex." …
We begin—and find that we can end—with the question whether Wood has shown a likelihood of success on the merits of her First Amendment challenge. As relevant here, the First Amendment (as incorporated through the Fourteenth) prohibits state legislatures from "mak[ing any] law … abridging the freedom of speech." The First Amendment's protections extend to public-school teachers and students, "neither of whom shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
But a teacher's right to speak is not without limits. One reason is that "[i]n addition to being [a] private citizen[ ]," a teacher is "also [a] government employee[ ] paid in part to speak on the government's behalf and convey its intended messages."
To resolve the private-citizen/government-employee tension, we employ a two-step framework grounded in the Supreme Court's decisions in Pickering v. Board of Education (1968), and Garcetti v. Ceballos (2006). At step one, the employee must show that in expressing herself she is (or was) speaking both (a) as a citizen—rather than in her capacity as a government employee—(b) about a matter of public—rather than private—concern. If the employee survives step one, she must then demonstrate, at step two, that her interest in speaking outweighs the state's interests in promoting the efficient delivery of public services.
Wood's case, we conclude, founders on the first prong of step one: She cannot show, with respect to the expression at issue here, that she was speaking as a private citizen rather than a government employee….
Needless to say, before we can decide whether Wood spoke as a private citizen or a government employee, we must first identify exactly what speech her suit covers. Wood's challenge is limited in two important respects. First, the statute at issue prohibits Wood only from "provid[ing] to a student" her preferred title and pronouns while she is "acting within the scope of [her] employment duties." And second, Wood's suit, by her own admission, challenges only the statute's application to her speech "in the classroom."
Accordingly, we deal here with only a narrow swath of expression: Wood disputes the state's authority to prevent her from using her preferred honorific and pronouns—by verbally stating them, writing them on her whiteboard and syllabi, and wearing a "she/her" pin—when she (1) is interacting with students (2) in the classroom and (3) within the scope of her employment duties. So, for instance, we needn't—and don't—consider whether Wood has a First Amendment right to use gendered identifiers or don a "she/her" pin when conversing with colleagues in the faculty lounge, or, for that matter, even whether she has a right to do those things in her classroom after the students have departed for the day….
Given the statute's relatively limited sweep and, even more so, the narrowness of Wood's challenge, this is, we think, a straightforward case. When a public-school teacher addresses her students within the four walls of a classroom—whether orally or in writing—she is unquestionably acting "pursuant to [her] official duties." Interacting with students during class time, quite literally, is a teacher's "official dut[y]." … "[T]he school system does not 'regulate' teachers' speech as much as it hires that speech" ….
Seeking to avoid this conclusion, our dissenting colleague conflates a teacher's "official duties" with "curricular" instruction—and contends, in particular, that while the state can validly regulate a teacher's in-class curricular speech, it may not regulate her noncurricular speech. To be sure, as the dissent correctly notes, the relevant caselaw—both our own and our sister circuits'—expressly permits government regulation of a teacher's curricular speech. But the inverse—that the First Amendment forbids regulation of a teacher's in-class noncurricular speech—doesn't follow. And so far as we can tell, there's no binding (or even persuasive) precedent to suggest that it does….
{The lone authority the dissent manages to muster for the proposition that the First Amendment forbids government regulation of a teacher's in-class noncurricular speech is Judge Luttig's solo concurring opinion in Boring v. Buncombe County Board of Education (4th Cir. 1998) (en banc), in which he asserted, without citation, that in the "context of teacher in-class noncurricular speech, the teacher assuredly enjoys some First Amendment protection." Judge Luttig was an exceptional jurist, but not even he could get away with asking adverbs to stand in for authority.} …
Judge Adalberto Jordan dissented:
Justice Robert Jackson wrote during World War II that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." W. Va. State Bd. of Educ. v. Barnette (1943). That venerable principle has stood the test of time. Florida, however, has recently come to believe that the First Amendment does not prevent it from dictating what can and cannot be said….
The "First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." The first step in evaluating the First Amendment claim here is figuring out whether Ms. Wood's use of her preferred personal title and pronouns in the classroom constitutes the private speech of a citizen on a matter of public concern….
The initial question is whether the speech in question "owes its existence to [Ms. Wood's] professional responsibilities." For a number of reasons, it does not.
[1]. The statute at issue here does not target titles conferred by a school or pronouns bestowed by the government. It prohibits (emphasis mine) the use of "preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to that person's sex." That distinction is important, for we have held that
the exception to First Amendment protection in Garcetti for 'speech that owes its existence to a public employee's professional responsibilities,' must be read narrowly to encompass speech that an employee made in accordance with or in furtherance of the ordinary responsibilities of her employment, not merely speech that concerns the ordinary responsibilities of her employment.
The preferred personal title and pronouns of a teacher are, like her name, significant markers of individual identity. They exist outside of, and do not depend on, the school or the government for their existence. Stated differently, Ms. Wood would still have her own preferred personal title and pronouns, and would still use them to identify herself to others, even if she was not a public school teacher.
The personal title that Ms. Wood prefers and uses is especially linked to her individual identity because it is part of her name; she will be referred to by her title and last name by her students every day. In today's parlance, students refer to their teachers as "Mr./Ms./Mrs./Miss" followed by the teachers' last names, and Florida has essentially mandated that Ms. Wood go by a different name before her students than when she clocks out for the day…
[2]. The majority concludes that Ms. Wood's use of her preferred personal title and pronouns in the classroom constitutes government speech, i.e., the speech of Florida as a state. I think the majority is mistaken.
"[R]egulated speech is typically private speech, not government speech." To determine whether an utterance is private speech or government speech, "we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression." That "review is not mechanical; it is driven by a case's context rather than the rote application of rigid factors." We look to "several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression." … [A] teacher's preferred personal title and pronouns simply do not bear any of the characteristics of government speech. Personal titles and pronouns have not traditionally been used to convey a government message; there is no evidence that the public associates them with the government; and they are not manufactured, owned, or designed by the government.
[3]. According to the majority, the use by public school teachers of their preferred personal titles and pronouns in the classroom is government speech because they are used during class time and because schools pay teachers to speak in class. But not every word uttered by a teacher in the classroom is the speech of the government….
[4]. We have said that the government has "some authority over the conduct of teachers in and out of the classroom that significantly bears on the curriculum." In reviewing the First Amendment claims of public school teachers, some of our sister circuits have similarly focused on whether the speech in question was "curricular" in nature. There is an "elementary difference between teacher in-class speech which is curricular, and teacher in-class speech which is noncurricular … In the latter context of teacher in-class noncurricular speech, the teacher assuredly enjoys some First Amendment protection. In the former context of teacher in-class curricular speech, the teacher equally assuredly does not." Boring v. Buncome Cnty. Bd. of Educ. (4th Cir. 1998) (en banc) (Luttig, J., concurring)….
[5]. Although the government speech doctrine is "important" and "essential," it cannot be applied too broadly because it is "susceptible to dangerous misuse." Why? Because "if private speech could be passed off as government speech by simply affixing a government seal of approval, [the] government could silence or muffle the expression of disfavored participants."
That danger exists here in spades. Through § 1000.071(3), Florida has used "speech acts to instate a sexual binary that privileges the expressive rights of its adherents over those whose identity calls that binary into question." The statute is not only a content-based restriction, but a viewpoint-based prohibition that is "presumed to be unconstitutional." "By limiting … restrictions to a list of ideas designated as offensive, the [statute] targets speech based on its content. And by targeting only speech that endorses any of those ideas, it penalizes certain viewpoints—the greatest First Amendment sin." …
Bryan Weir, Daniel Shapiro, and Daniel M. Vitagliano (Consovoy McCarthy, PLLC) represent the Department.
