A former Wisconsin elementary school counselor who was fired after she spoke out against transgender ideology during a feminist rally last spring is suing the school district claiming district leaders violated her First Amendment and due-process rights.

Marissa Darlingh, a Milwaukee-area school counselor for eight years, was fired from her job at Allen-Field Elementary School on September 30, in part for allegedly showing "contempt towards transgender individuals, and an inability to support or abide by the district's equity goals," her termination letter stated. Lawyers for the Wisconsin Institute for Law & Liberty say Darlingh had the right to speak out against a controversial ideology she believes is dangerous.

In mid-November, they filed a lawsuit in U.S. District Court against district officials and the school board for firing Darlingh for what they say is constitutionally protected speech.

National Review reported on Darlingh's case in May, after she received a letter from the state education department informing her that she was being investigated for engaging in immoral conduct and that her educator license was in jeopardy. The state investigation is still pending.

The district claimed Darlingh was fired for violating polices against using threatening or abusive language, bullying, and engaging in activity that detracts from the district's image or reputation.

"You not only harmed students and families, you negatively impacted the district's image as a school district that values equity and is committed to providing a safe, inclusive, and supportive learning environment for all students," Darlingh's termination letter read.

But Luke Berg, a lawyer representing Darlingh, said his client has never violated any district policies or guidance regarding transgender students, and is being punished for expressing disfavored opinions. "They object to her speech. They object to her message," Berg said. "And they apparently think it's so wrong, what she said, that it's a fire-able offense, and doesn't warrant any sort of conversation, any sort of warning, any sort of discussion whatsoever."

Darlingh's firing stems from a short but fiery and unscripted speech she gave against what she described as "gender identity ideology" in schools, according to a YouTube video. She spoke during a feminist rally on a Saturday in late April in front of the state capitol in Madison.

Darlingh, who identified herself at the rally as a Milwaukee Public Schools counselor, spoke for about three minutes at an open microphone. She voiced opposition to hormone treatments, social and medical gender transitions, and gender-reassignment surgery for kids. At one point she said “f*** transgenderism.” She also stated that she exists "to serve children" and "to protect children."

"On my dead f***ing body will my students be exposed to the harm of gender identity ideology," she said during the rally. "Not a single one of my students on my f***ing watch will ever transition socially and sure as hell not medically. Absolutely not."

A group protesting the rally organized a campaign to "cancel" Darlingh, sending emails to district staff calling for her to be fired, according to the lawsuit. Less than a week after the rally, Darlingh received a letter from the Wisconsin Department of Public Instruction, the state education department, informing her that it had opened an investigation. Darlingh's supervisor also began an investigation in late April, according to the lawsuit.

On June 9, Darlingh received a letter from her supervisor, Ophelia King, informing her that "certain facts have come to my attention which might lead to disciplinary action against you regarding your failure to follow District Rules and Policies." The letter listed several possible policy violations, but did not state how Darlingh's conduct may have violated district policies. A Zoom video conference was scheduled for June 15.

On June 14, a few days before the end of the school year, Darlingh received a second, "emergency scheduling" letter informing her that she was suspended from her job. The first three days of the suspension would be paid, but the rest would be unpaid.

"Clearly what they were trying to do was put her into this unpaid suspended state during the summer to make it hard for her to know what to do for the fall," Berg said. "I think they were trying to pressure her to quit her job, but she loves her job and wants to keep doing it."

In Darlingh's termination letter, Adria Maddaleni, the district's chief human resources officer, wrote that school counselors are expected to be advocates for "systemic change" and "equitable educational outcomes," and are to "foster and affirm all students and their identity." The statements Darlingh made in Madison were "threatening and intimidating," she wrote. She added that because Darlingh identified herself during the speech as a Milwaukee elementary school counselor, she "did not speak out as a private citizen," but was instead a "reflection of the district." At no point, Maddaleni wrote, was Darlingh "authorized to comment on the topic of gender identity or to characterize the care provided by the District to our students."

Berg argues that just because Darlingh identified herself as a district employee doesn't mean she forfeited her free speech-rights. The Supreme Court has ruled that citizens do not give up their First Amendment rights when they work for the state, and can speak out on matters of public concern. But their rights to speak must be balanced against the interests of the state to efficiently perform its public services through its employees.

Berg said a public employee can be fired for speech made as part of their official duties, but that is not what Darlingh was doing. "Her job as a counselor is not to speak publicly," he said.

"This was on her own time. It was on a Saturday. It was a different city nowhere near where she works," he added. "The district's theory seems to be the mere fact that you identified yourself as a counselor means you are no longer speaking as a private citizen, but we know from Supreme Court caselaw that is not the [balancing] test."

Berg said school employees, by virtue of their job, are likely to have opinions and insight as to how a school district should be run. "That is why their speech needs to be protected," he said.

There has never been any evidence that Darlingh violated any district policies or guidance regarding transgender students, Berg said. In an interview on Fox News earlier this year, Darlingh said she wouldn't change anything she said during the rally. But Berg said that during her hearing with district leaders, Darlingh clarified her position: she would abide by all district policies and the wishes of parents, but would not be the initiator of a child's gender transition.

"She has since tried to qualify that to the district, and say, 'Look, I will respect a student's name and pronouns if the parents are involved, and that's what they want. And if your policy requires something else, please let me know.' And they basically ignored her statements to that effect in their termination letter," Berg said, adding that Darlingh's rally speech was unscripted. "You can't expect her words are going to be super precise."

Berg said Darlingh had little opportunity to review the allegations against her or to respond to them. "There was no conversation," he said. "There was no discussion whatsoever, which, to me, clearly indicates they are firing her for her viewpoint on this. And that's not okay."

In an email to National Review, Milwaukee Public Schools defended its firing of Darlingh.

"At a public rally, Ms. Darlingh identified herself as representative of MPS and declared her refusal to provide mental health services in her role as a school counselor," according to the email. "She proceeded to engage in a vulgar, insensitive, and disrespectful tirade aimed directly at the students in her care. MPS will not tolerate staff who target and marginalize students on the basis of their sex. The comments made by Ms. Darlingh run counter to the District's commitment to provide a safe and supportive learning environment for all students."

The lawsuit is calling for Darlingh to be reinstated to her position, in addition to receiving back-pay, and damages. It is also calling for the district to lift a no-trespass order it has in place against her.

The state education department's investigation of Darlingh is ongoing.

The employees in charge of the school district’s proceedings were uninterested in any resolution other than firing Darlingh, her lawyers say. Berg denied the school district's allegation that Darlingh wouldn't support students struggling with gender identity issues and would deny them services.

"In fact, what she told the district during the misconduct hearing, in our written response, in every email that we've sent, is that she would love and serve and treat all students equally, even transgender-identifying students," Berg said. "Many of the students describe her as their favorite teacher in the school. They love her a lot for who she is. There's no evidence whatsoever that she has ever treated any student differently, nor would she."

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