Marissa Darlingh, a guidance counselor at Allen-Field Elementary School in the Milwaukee Public School District, delivered an impromptu speech at an April 2022 rally in Madison, Wisconsin. The rally was organized by a group of self-described “radical feminists” to protest gender ideology and its perceived effects on women and children. Speaking from the steps of the State Capitol, Darlingh identified herself as a Milwaukee Public Schools counselor and launched into a profanity-laced tirade against “gender ideology,” vowing that under her watch, “not a single” student would ever socially or medically transition. The speech included repeated expletives and denounced transgenderism as a concept and the individuals supporting it.
Her comments were recorded and circulated online. Within days, Milwaukee Public Schools opened an investigation. While the investigation was underway, Darlingh gave interviews to local and national media in which she stood by her comments. A Milwaukee Journal Sentinel article quoted her as saying she would not respect students’ chosen pronouns, though she later claimed this was inaccurate. The controversy reached her elementary school, where a fifth-grade teacher projected the article in class and told students they could decline counseling with Darlingh. When Darlingh entered the classroom and confronted the teacher, the incident was reported and added to the District’s concerns.
As part of the disciplinary process, Darlingh was given an opportunity to respond to the District. After receiving an initial notice of alleged policy violations, she participated in a Zoom conference, where District officials presented a 126-page packet of materials, including video recordings, public complaints, and relevant policy documents. Darlingh’s attorney objected to the short notice with which to respond, and the District permitted Darlingh to submit written response. In her submission, Darlingh explained that her remarks were aimed at policy, not individuals, clarified that she would defer to parents on pronoun usage, and expressed a willingness to apologize and work collaboratively with affected staff or families. Despite these clarifications, the District ultimately determined that her conduct and statements irreparably undermined her ability to fulfill the duties of a school counselor and terminated her employment at the start of the next school year. The termination letter emphasized her use of vulgar language, her pledge to block student transitions, and the damage her statements had caused to the District’s mission and reputation.
Darlingh filed suit under 42 U.S.C. § 1983, alleging she was fired in retaliation for exercising her First Amendment rights. She also moved for a preliminary injunction seeking reinstatement. The trial court dismissed her First Amendment claim after applying the two-step balancing test established in Pickering v. Board of Education, 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983).
Under that framework, the court first asks whether the public employee spoke as a citizen on a matter of public concern. If so, it then balances the employee’s interest in the speech against the government’s interest in operating efficiently and maintaining trust in its services. The trial court found that although Darlingh had spoken as a citizen on a matter of public concern, her speech was so incompatible with her job responsibilities that the District was constitutionally justified in firing her.
On appeal, the Seventh Circuit Court of Appeals reviewed the legal issues and ultimately affirmed the trial court’s ruling. It accepted that Darlingh’s speech occurred in a traditional public forum and addressed a politically charged and timely issue. Her right to speak was therefore entitled to substantial weight under the First Amendment.
However, the Court of Appeals emphasized that context matters. It focused on Darlingh’s identification as a school counselor, the harsh and vulgar language of her speech, and the public nature of her pledge to actively resist gender transitioning among her students. The Court noted that school counselors occupy a position of significant trust, requiring empathy, discretion, and support for all students, including those exploring gender identity. Darlingh’s blanket, profanity-filled refusal to accommodate gender transitions signaled to parents and students that she could not be trusted to treat transgender youth with respect and impartiality.
The Court also acknowledged that some of her post-speech clarifications softened the rhetoric and indicated assurances that Darlingh would comply with District policy. However, it found that the District had reasonably concluded that her explanation did not restore confidence in her ability to perform her role. The Court characterized her conduct as “a harsh, angry, and profanity-filled public pledge” to apply a personal ideology at work in a way that directly conflicted with her professional duties and the School’s mission.
Ultimately, the Court held that the District’s interest in preserving student trust and ensuring access to equitable counseling services outweighed Darlingh’s First Amendment interest in her speech. Because her words reasonably cast doubt on her fitness to serve as a counselor, the District’s termination decision did not violate the Constitution.
The Court affirmed the denial of the preliminary injunction and the dismissal of the First Amendment claim.
Darlingh v. Milwaukee Public Schools 2025 (7th Cir. 2025) U.S. App. LEXIS 16215.
Note: Unlike public school teachers, private school teachers do not have constitutional free speech rights at school. However, off-campus speech, especially on controversial topics, can still trigger community concern and reputational risk. Schools should proactively clarify expectations around professional conduct outside the classroom and ensure employment agreements and handbooks provide flexibility that allows schools to address speech that may undermine the school’s values or mission.