Seventh Circuit Upholds Termination of School Counselor for Anti-Transgender Speech

Background

On July 2, 2025, the Seventh Circuit Court of Appeals released its decision in the case of Darlingh v. Maddaleni, et al.

Plaintiff Marissa Darlingh was employed as a guidance counselor at an elementary school in Milwaukee Public Schools (the “District”).

On April 23, 2022, Darlingh attended a weekend “Sisters 4 Sisters” rally in Madison, Wisconsin featuring “radical feminist” critiques of the transgender-rights movement. At the rally, attendees were free to utilize a podium attached to a broadcast system to address the crowd. Darlingh delivered an impromptu, profanity-laden speech denouncing what she referred to as “gender ideology” and “transgenderism.” At the beginning of her speech, Darlingh identified herself as a guidance counselor at the District and vowed—interlaced with profanity—that “not a single” student at her school “will ever, ever transition” on her watch. Darlingh’s speech was recorded and later posted on YouTube.

On April 26, 2022, the District opened an investigation into Darlingh’s conduct at the rally after it became aware of the incident. On June 9, 2022, Darlingh was placed on unpaid administrative leave pending the outcome of the investigation.

On June 15, 2022, the District held a pre-disciplinary conference with Darlingh and her attorney, and presented Darlingh with a 126-page investigation packet with 48 exhibits concerning Darlingh’s speech and its impact on the District. Following the conference, Darlingh was allowed to present a written response, in which she attempted to soften and explain her speech at the rally.

On September 30, 2022, the District terminated Darlingh effective immediately. In the termination letter, the District stated that Darlingh’s speech violated District rules prohibiting the use of threatening, intimidating, or abusive language; bullying; or engaging in conduct that significantly detracted from the District’s image or reputation, as well as District policies ensuring equitable access to a supportive learning environment for all students. The letter concluded by stating that Darlingh’s public comments were incompatible with the District’s commitment to providing a safe, inclusive, and supportive learning environment for all students.

Darlingh subsequently filed suit in federal court, alleging she was unlawfully terminated in retaliation for exercising her First Amendment right to freedom of speech, and soon after sought a preliminary injunction seeking reinstatement to her guidance counselor position pending the outcome of the lawsuit.

The District Court denied Darlingh’s preliminary injunction and granted the District’s motion to dismiss Darlingh’s First Amendment claim. Darlingh appealed the District Court’s denial of her preliminary injunction to the Seventh Circuit Court of Appeals.

The Seventh Circuit’s Decision

The Seventh Circuit affirmed the District Court’s denial of Darlingh’s preliminary injunction, holding that Darlingh was not likely to succeed on her First Amendment claim—effectively upholding the District’s dismissal of Darlingh’s claim.

A First Amendment retaliation claim requires the plaintiff to prove that: 1) they engaged in constitutionally protected speech; 2) they suffered a deprivation of a type that is likely to deter protected speech; and 3) their protected speech was a motivating factor in the deprivation. In this case, only the first factor was disputed. Therefore, the Seventh Circuit’s analysis focused on whether Darlingh’s speech was constitutionally protected.

The legal analysis for determining whether a public employee’s speech is constitutionally protected is the Connick-Pickering balancing test based on Supreme Court precedent. First, courts analyze whether the employee “spoke as a citizen on a matter of public concern.” Then, the courts will analyze “whether the government had an adequate justification for treating the employee differently from any other member of the public based on the government’s needs as an employer.”

In this case, the Seventh Circuit found that Darlingh’s speech interests were particularly strong, because she spoke at an organized political rally during her personal, non-work time, and her speech touched on a matter of public concern in that transgender rights, as noted by the Court, “are a subject of current policy and social debate.” Additionally, the Court noted that, since Darlingh was a school guidance counselor, her perspective on gender-identity issues and their impact on children carried special weight.

However, the Court found that the extreme vulgarity, as well as the belligerent tone of her speech and personal attacks on her opponents, diminished the strength of her First Amendment speech interests. The Court also noted she began her speech by explicitly identifying herself as a school counselor at the District and her remarks expressed a fixed commitment to carry out her duties in a way that conflicted with the mission and policies of the District. Further, the Court found that Darlingh’s speech was fundamentally at odds with the District’s governmental interests in providing a safe and supportive educational environment for all students, as well as Darlingh’s responsibility as a guidance counselor to promote respect and humane treatment for all students. Therefore, the Court found that the District’s interests as a public educational employer outweighed Darlingh’s free-speech rights in these circumstances.

Takeaways

The Darlingh case provides important insight into the legal analysis regarding a First Amendment claim by certified school employees and the circumstances in which educational institutions may take action against employees based on speech outside of work. This case in particular highlights how the Seventh Circuit will consider vulgar and/or abusive speech and speech that is contrary to a district’s educational mission.

Please contact your Robbins Schwartz attorney with questions regarding this case and any First Amendment issues.