Willey et al v. Sweetwater County School District No 1 Board of Trustees et al

OCR transcription for search; preserved printed pages are authoritative

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IN THE UNITED STATES DISTRICT COURT "770 9) 0 /SURr
FOR THE DISTRICT OF WYOMING “123 Jj: 9,

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ASHLEY WILLEY and PERT CLE py
SEAN WILLEY,

Plaintiffs,
VS. Case No. 23-CV-069-SWS

SWEETWATER COUNTY SCHOOL
DISTRICT NO. 1 BOARD OF
TRUSTEES, KELLY MCGOVERN,
NICOLE BOLTON, KAYCI ARNOLDI,
and BRYANT BLAKE,

Defendants,

ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR PRELIMINARY INJUNCTION

This matter comes before the Court on the Motion for a Preliminary Injunction
(ECF No. 6) (the “Motion”) filed by Plaintiffs Ashley Willey and Sean Willey (collectively
“Plaintiffs” or the “Willeys”). Defendants Sweetwater County School District No. 1
(“SCSD”) Board of Trustees; Kelly McGovern, SCSD Superintendent (“Ms. McGovern”);
Nicole Bolton, SCSD Assistant Superintendent and Human Resource Director (“Ms.
Bolton”); Kayci Arnoldi, SCSD Director of Student Services (““Ms. Arnoldi”); and Bryant

Blake, Principal at Black Butte High School (“Principal Blake”) (collectively

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AUTHENTICATED
U.S. GOVERNMENT.
INFORMATION

GPO

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“Defendants” or the “District” ') were served notice of the Motion and provided supporting
documentation on April 24, 2023, via electronic mail. (See ECF No. 13.) The District
responded (ECF No. 16), and the Willeys replied (ECF No. 21). Both parties submitted
affidavits and other evidence in support of their positions. Having considered the motion
and the parties’ submissions in support thereof, reviewed the record, and being otherwise
fully advised, the Court finds the motion for a preliminary injunction must be GRANTED
IN PART AND DENIED IN PART.
SUMMARY OF ISSUES AND DISPUTES

The thorny Constitutional issues in this case revolve around a policy adopted by the
District at the beginning of the 2022-23 school year. The policy directed how school district
personnel are required to handle a student’s request to be called by a preferred or chosen
name and/or pronoun, including if contrary to their given legal name or gender. (ECF No.
1 at 68-69.) In relevant part, the policy provides that district personnel “must use a student’s
preferred/chosen name or pronoun in verbal, written, and electronic communications. Staff
must respect the privacy of all students regarding such choice.” Jd. at 68. District personnel
are advised that “violations of this procedure may constitute discrimination based on sex,
and may result in discipline.” Jd. at 69. As detailed below, the claims presented in this case

raise issues concerning the entitlement of a parent to be informed of a student’s request

' During all times relevant to the Complaint the Defendants were acting on behalf of the SCSD. Although
the school district itself is not a named defendant, this Order refers to the Defendants collectively as the
“District” for simplicity purposes. Where appropriate, this Order will identify the actions of individual
defendants.

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under this policy as well as the parents “right” to override the policy. Issues are also raised
as to an employee’s obligation to adhere to the policy despite religious conflicts.

On April 20, 2023, the Willeys filed their Complaint (ECF No. 1) alleging violations
of numerous constitutional rights through 42 U.S.C. § 1983.? Specifically, the Willeys
allege as applied this policy violates: (1) their Fourteenth Amendment fundamental
substantive due process right to direct the upbringing of their children; (2) their Fourteenth
Amendment fundamental substantive due process right to familial privacy; and (3) their
First Amendment right to free exercise of religion (collectively the “Joint Claims”).
Additionally, in her capacity as a teacher for the District, Plaintiff Ashley Willey (“Mrs.
Willey”) alleges the Policy violates: (1) her First Amendment right to free exercise of
religion; and (2) her First Amendment right to free speech (collectively the “Individual
Claims”).

On April 21, 2023, the Willeys filed the instant motion seeking a preliminary
injunction enjoining the District from enforcing and implementing this policy. (See ECF
No. 6.) Specifically, they ask the Court to enjoin the Defendants from: (1) referring to one
of their children by any name other than their legal birth name or by pronouns inconsistent
with their birth sex without their prior written consent; and (2) having private discussions
with any of their children regarding mental health issues without their prior written consent.
(See ECF No. 6 at 2.). Approaching the issues from her angle as a teacher, Mrs. Willey

seeks an injunction enjoining Defendants from: (1) compelling her to refer to any student

2 Although the Complaint references both federal and Wyoming state statutes, the Willeys do not seek
relief on any federal statutory or state law grounds.

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by any name other than his or her legal name or by any pronouns other than those
“appropriate for his or her sex;” (2) compelling her to refrain from informing parents of
their child’s assertion of a “discordant gender identity and request for social transitioning”
absent evidence of an investigation by child protective services regarding alleged abuse;
and (3) compelling her to deceive parents by referring to any child by one set of names and
pronouns at school and another set of names and pronouns in conversations with parents.
(Id. at 2-3.)

FACTUAL BACKGROUND

A. The Parties and Dispute

The Willeys are married and reside in Sweetwater County, Wyoming. Together, the
Willeys are the parents of four children that attend schools within the Sweetwater County
School District. In addition, Mrs. Willey is the parent and guardian of a 16-year-old that
attends Black Butte High School (the “Student”)’, which is part of the SCSD. While Mrs.
Willey claims to be the mother and sole legal guardian of the Student (ECF No. 1 4 11)‘,
the District refutes this allegation, claiming the Student’s biological father maintains a
parental role in the Student’s life (see ECF No. 16 at 3). In addition, Mrs. Willey is

employed as a special education math teacher in the District. (ECF No. 1 4 13.)

3 Because Mrs. Willey’s child is identified by at least three sets of initials—A.S., C.S., and R.S.—
throughout the various filings, the Court will simply refer to her child as the “Student.”

“ Mr. and Mrs. Willey have verified the Complaint under oath (ECF No | at 57-58) so it will be referred
to and considered as part of the evidence submitted in support of Plaintiffs’ motion for preliminary
injunction. See Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1163 (10th Cir. 2021) (district court did
not error in treating verified complaint as an affidavit and testimonial evidence).

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The Willeys allege the Student has been diagnosed with ADHD, PTSD, and is under
the care of a private counselor. (/d. §§ 19-22.) The Student is also under an
Accommodation Plan under Section 504 of the Rehabilitation Act of 1973. (ECF No. | at
5.) At the beginning of the 2021-22 school year, despite being born biologically female,
the Student told teachers at Black Butte High School that the Student wanted to be treated
as a male and be referred to by male pronouns. (/d. 25.) The Willeys were unaware of the
Student’s request at that time, and were not informed or advised of the Student’s request.
(Id.) On March 29, 2022, while participating in a district-wide training, Mrs. Willey asserts
that for the first time she discovered—when two of the Student’s teachers at Black Butte
disclosed—that the Student was being referred to by a male name and male pronouns at
school, and had been for the entire school year. (ECF No. 1 {{s 27-32.) Upon learning this
Mrs. Willey informed the Student that the Student was “too young to make such decisions”
and the conduct at school needed to stop. (/d. | 33.) That same day, Mrs. Willey sent emails
to teachers and staff at Black Butte High School and to Principal Blake, reflecting her
position that the Student was too young to make such “life changing decisions.” (/d. J] 34—
35.) Mrs. Willey’s emails directed staff and teachers to refer to the Student by her given
birth name and female pronouns only, and threatened to take the issue to the District’s
central administration should any teacher or staff member defy her instructions. (/d.) In
response Principal Blake advised that he had reached out to Human Resources concerning
her request for further clarification and would be in touch with her upon receipt of that

clarification. Jd. at J 36.

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Following Mrs. Willey’s email directive, the Student changed course and requested
to be called by the Student’s given name and female pronouns. (Jd. § 38-39; ECF No. 16-
2 {{ 3-5.) The District both respected the Student’s initial wishes to be called by a male
name and male pronoun, and the Student’s subsequent request to be referred to by the
Student’s given female name and female pronoun. (ECF No. 16-2 {ff 3-5.) Mrs. Willey
alleges that in a meeting in April 2022, Ms. Bolton told Mrs. Willey that if the Student
came back to the Student’s teachers and requested to be called by a male name and pronoun
the staff would do as the Student requested, regardless of Mrs. Willey’s directions. (ECF
No. | at 739; see also ECF No. 21-1 at § 7.) In addition, Ms. Bolton stated they would not
tell Mrs. Willey of the Student’s request. Id.

As to her role as a teacher, the District maintains no student taught by Mrs. Willey
has ever requested to use any name or pronoun other than their legal name and
corresponding sex assigned at birth. (ECF No. 16-3 at ¥ 9.) The District contends it is
unlikely Mrs. Willey will ever be faced with such a situation. (/d. J 10.) The Complaint
does not contain any allegations that Mrs. Willey has been required to apply this policy as
a teacher. However, Defendants have not stated and do not assert that this policy is not
applicable to Mrs. Willey.

B. The Policy

At the beginning of the 2022-23 School year the District sent teachers a document

entitled “SCSD #1 Special Services Non-Negotiables August 15, 2022” which in pertinent

part provides:

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7. Preferred/Chosen Names Procedure. As you become acquainted
with your students, you may encounter students wishing to use a preferred or
chosen name. A preferred/chosen name is any name a student chooses to use
other than their legal name. For example, a student may wish to shorten their
first name (e.g. Steven to Steve) or to be referred to by their middle name or
a nickname. Sweetwater County School District Number One is committed
to promoting an educational environment that is supportive and respectful to
all students. Calling a person by their preferred name and pronoun shows
respect and contributes to the District’s commitment to providing a safe and
nondiscriminatory educational environment. Accordingly, staff must use a
student’s preferred/chosen name or pronoun in verbal, written, and
electronic communications. Staff must respect the privacy of all students
regarding such choice. Violations of this procedure may constitute
discrimination based on sex, and may result in discipline. Students who
experience problems or discrimination related to their preferred/chosen name
or pronoun shall be referred to the Title [IX Coordinator for resources and
assistance. This procedure does not address changes to educational records
to reflect legal name change. Any request to amend educational records shall
be referred to the Director of Human Resources.

(the “Policy”) (See ECF No. 1 at 68-71 (Exhibit E); 16-2) (emphasis added). A copy of the
Policy was provided to Mrs. Willey in September of 2022, at which time she reviewed and
crossed out paragraph 7 before signing and returning it to the District. (ECF No. 1 at 11,

68-71.) The District maintains it adopted the Policy to comply with Title IX of the

Education Amendments of 1972 (“Tile IX”). (See ECF No. 16 at 3-4.)

Central to the Plaintiff's claims are two distinct aspects of the Policy. First, District

personnel—including teachers such as Mrs. Willey—are required use a student’s preferred
name or pronoun at their request (the “Preferred Names Policy”’). Second, District staff,—
including teachers such as Mrs. Willey—must respect the privacy of all students regarding

such choice (the “Student Privacy Policy”) and not disclose their request to others absent

consent.

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In August of 2022, Mrs. Willey met with Ms. Arnoldi and Ms. Bolton to express
her concerns and objections to the application of the Policy to any of her children and in
her capacity as a teacher. Mrs. Willey alleges that following this meeting Ms. Arnoldi
emailed her reaffirming the District’s adherence to the Policy and its application to Mrs.
Willey and all staff. (ECF No. 1 at 73.) In addition, on September 9, 2022, Ms. Bolton sent

out an email to SCSD employees “clarifying” the Policy and its application:

The complexity and sensitivity of issues surround gender identity precludes
a one-size fits-all approach. Staff were never directed not to talk to parents
or lie to parents. Decisions regarding how to support transgender and gender
nonconforming students may involve the student, parents, and District
administration. Teachers are expected to immediately refer such matters to
their building principal, who will involve central administration. Teachers
will then be informed of the District’s plan for supporting the individual
student and will be responsible for supporting the student. Again, student
needs will be met with an individualized response and specific support.

(ECF No. 1 at § 66; Ex. G at 76.) However, that statement was then seemingly immediately

walked back:

That being said, the District will prioritize safeguarding the physical and
psychological well-being of a student. When a student indicates that their
family is not supportive of their gender identity and/or the District is
concerned for the student’s safety, the District will honor a student’s request
for confidentiality until the student consents to the disclosure and/or the
District completes an individualized assessment and rules out any
particularized and substantiated concern of real harm.°

(Id.) (emphasis added) Statements made by District administrators and school board
members at a school board meeting on September 12, 2022, reflected that each student’s

situation would be handled on a case-by-case basis, with the student’s safety paramount.

> The use of the conjunctive and disjunctive make it unclear whether one or both conditions are required to
be met before disclosure can be made to a student’s unsupportive family.

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(See e.g., ECF No. 1 at 107—08.) The record is void of any evidence of the application of
either aspect of the Policy to any student or situation other than the Student.®

PRELIMINARY INJUNCTION LEGAL STANDARD

“Under the traditional four-prong test for a preliminary injunction, the party moving
for an injunction must show: (1) a likelihood of success on the merits; (2) a likely threat of
irreparable harm to the movant; (3) the harm alleged by the movant outweighs any harm to
the non-moving party; and (4) an injunction is in the public interest.” Hobby Lobby Stores,
Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013), aff'd 573 U.S. 682 (2014).

Although courts use “a bewildering variety of formulations . . . for showing some
likelihood of success” on the merits, all courts agree that a “plaintiff must present a prima
facie case but need not show a certainty of winning.” City of Albuquerque v. Barr, 515
F.Supp.3d 1163, 1176 (D.N.M. 2021) (quoting Coal. Of Concerned Citizens to Make Art
Smart v. Fed. Transit Admin. of U.S. Dep’t of Trans., 843 F.3d 866, 901 (10th Cir. 2016)).

In First Amendment cases, the likelihood of success on the merits will often be the
determinative factor. Jd. at 1145 (quoting ACLU of Jil. v. Alvarez, 679 F.3d 583, 589 (7th
Cir. 2012), cert. denied, 133 S.Ct. 651 (2012)). As the Tenth Circuit has explained, this is
because:

* “the loss of First Amendment freedoms, for even minimal periods of time,

unquestionably constitutes irreparable injury, Heideman v. S. Salt Lake City,
348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted);

° Ms. Bolton’s affidavit notes students often request to use their middle names or shorter versions of legal
names, without objection from Mrs. Willey. (See ECF No. 16-3 §f 11-12.) While such a request technically
comes within the ambit of the Preferred Names Policy, it is not a focus of the current motion.

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¢ “when a law is likely unconstitutional, the interests of those the government
represents, such as voters do not outweigh a plaintiffs interest in having its
constitutional rights protected,” Awad v. Ziriax, 670 F.3d 1111, 1131-32
(10th Cir. 2012) (cleaned up); and

* “it is always in the public interest to prevent the violation of a party’s
constitutional rights,” id. at 1132.

Hobby Lobby, 723 F.3d at 1145.

A preliminary injunction is an extraordinary remedy never awarded as of right.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). In every case, a court “must
balance the competing claims of injury and must consider the effect on each party of the
granting or withholding the requested relief,” paying particular regard to the public
consequences of deploying an injunction. /d. (quoting Amoco Prod. Co. v. Gambell, 480
USS. 531, 542 (1987)). An injunction may only issue upon a clear showing the plaintiff is
entitled to such relief. Jd. at 22 (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)
(per curiam)).

Preliminary injunctions that do not simply preserve the parties position pending trial
are particularly disfavored. Free the Nipple-Fort Collins v. City of Fort Collins, Colo. 916
F.3d 792, 797 (10th Cir. 2019). Disfavored injunctions are ones that mandate action rather
than prohibit it, change the status quo, or grant all the relief the movant would be entitled
to if victorious at trial. Jd. The status quo is defined as “the last peaceable uncontested
status existing between the parties before the dispute developed...” /d. at 798,
n.3 (internal citations omitted.) In this case Plaintiffs seek a disfavored injunction and

consequently bear a heavier burden on the likelihood of success on the merits and balance

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of harm factors. /d. Plaintiffs are required to make a strong showing that these factors tilt
in their favor. Id.

Evidence that goes beyond the unverified allegations in the pleadings and motion
papers must be presented to support or oppose a motion for a preliminary injunction. See
Societe Comptoir De L'Industrie Cotonniere, Etablissements Boussac v. Alexander's Dept.
Stores, Inc., 190 F. Supp. 594, 601 (S.D.N.Y. 1961), order aff'd, 299 F.2d 33 (2d Cir. 1962)
(“As support for a preliminary injunction the court can consider only facts presented by
affidavit or testimony and cannot consider facts provable under the modern liberal
interpretation of the complaint but which have not been proved.”); see Wright & Miller,
11A Fed. Prac. & Proc. Civ. § 2949 (3d. Ed. 2023). To meet this requirement, the parties
may rely on affidavits and hearsay materials that would not normally be admissible, but
the mere unverified allegations in the Complaint are not sufficient. See e.g., Fed. Sav. &
Loan Ins. Corp. v. Dixon, 835 F.2d 554, 558 (Sth Cir. 1987); Complete Angler, LLC v. City
of Clearwater, 607 F.Supp.2d 1120, 1123 (M.D. Fla. 2009).

Conversely, where the pleadings are properly verified, they may serve as evidence
for a preliminary injunction if the allegations therein are based on personal knowledge.
Vette v. K-9 Unit Deputy Sanders, 989 F.3d 1154, 1163 (10th Cir. 2021); Hall v. Bellmon,
935 F.2d 1106, 1111 (10th Cir. 1991). Additionally, while a court may consider affidavits
based on hearsay when evaluating requests of preliminary injunctions, courts should not

overlook the reliability of this evidence when weighing it against other evidence. See, e.g.,

Pharmanex, Inc. v. HPF, 221 F.3d 1352 (table), 2000 WL 703164, at *3 (10th Cir. 2000);

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Farm Bureau Prop. & Cas. Ins. Co. v. Biggs, No. 2:20-CV-2558-HLT-KGG, 2021 WL
1348317, at *4 (D. Kan. Feb. 25, 2021).

“An evidentiary hearing is not always required before the issuance of a preliminary
injunction.” Moon v. Med. Tech. Assocs., Inc., 577 F.App’x 934, 936 (11th Cir. 2014)
(citing All Care Nursing Serv., Inc. v. Bethesda Mem'l Hosp., Inc., 887 F.2d 1535, 1538
(11th Cir.1989). This is especially true where the parties have not requested a hearing and
the material facts are not in dispute. See Mission Air Support, Inc. v. KSNL Aero, LLC, No.
CIV-21-1034-D, 2022 WL 1296081, at *1 n.1 (W.D. Okla. Apr. 29, 2022) (citing Reynolds
& Reynolds Co. v. Eaves, 149 F.3d 1191 (10th Cir. 1998) (finding that a district court is
not required to hold an evidentiary hearing prior to resolving a preliminary injunction
motion)); Robinson v. City of Edmond, 160 F.3d 1275, 1286 (10th Cir. 1998) (noting that
“a district court does not abuse its discretion in deciding not to hold an evidentiary hearing
when no such request is ever made.”)). But, where the injunction turns on the resolution of
bitterly disputed facts, an evidentiary hearing is normally required to decide credibility
issues.” Moon, 577 F.App’x at 936. It is with these standards and requirements in mind the
Court analyzes Plaintiffs’ Motion.

ANALYSIS

As a preliminary matter, the Court finds an evidentiary hearing is not necessary to
resolve this motion. No party specifically requested a hearing, and the material facts are
not in dispute. Insofar as evidence is concerned, the Court finds the Complaint is properly
verified by the Willeys, who both attested to their personal knowledge of the facts set forth

therein under penalty of perjury. (ECF No. 1 at 57-58); see Vette, 989 F.3d at 1163. The
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Court will therefore treat the factual allegations in the Complaint to which the Willeys have
personal knowledge as evidence in this matter. The Court will also consider the affidavits
of Ms. Bolton (ECF No. 16-3), Mrs. Willey (ECF No. 21-1), and Dr. Erica Anderson (ECF
No. 6-1) as evidence.
A. Prong One: Likelihood of Success on the Merits

The Court begins by evaluating the likelihood of success of each of the Willey’s
claims on the merits.

1. Standing

The Court must first address standing, which presents “the threshold jurisdictional
question of whether a court may consider the merits of a dispute.” Miller v. Austin, ---
F.Supp.3d ---, 2022 WL 3584666, at *3 (D. Wyo. 2022) (quoting S. Utah Wilderness All.
v. Palma, 707 F.3d 1143, 1152 (10th Cir. 2013)). Standing presents a jurisdictional issue
that may be raised by the court at any time. See 303 Creative LLC v. Elenis, 6 F.4th 1160,
1171 (10th Cir. 2021), rev’d on other grounds, 600 U.S. —, No. 21-476, slip op. (2023).
A plaintiff has the burden of establishing standing, which must exist at the time the action
is brought. Rocky Mountain Peace & Justice Ctr. v. U.S. Fish & Wildlife Serv., 40 F.4th
1133, 1151 (10th Cir. 2022) (citing with approval Mink v. Suthers, 482 F.3d 1244, 1254-
55 (10th Cir. 2007)).

In order to demonstrate constitutional standing under Article II, a plaintiff must
establish: (1) they suffered an injury in fact; (2) there is a causal connection between the
injury suffered and the conduct and question; and (3) that it is likely, not speculative, that

a favorable decision will redress the injury. Pac. Frontier v. Pleasant Grove City, 414 F.3d

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1221, 1228-29 (10th Cir. 2005) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992)). Plaintiffs suffer an “injury in fact” where they have endured “an invasion of a
legally protected interest which is (a) concrete and particularized; and (b) actual or
imminent, not conjectural or hypothetical.” Jd. (quoting Lujan, 504 U.S. at 560-61)
(cleaned up). The requisite causal connection between the injury and the conduct
complained of requires the injury be “fairly traceable to the challenged action of the
defendant, and not the result of the independent action of some third party not before the
court.” Lujan, 504 U.S. at 560 (cleaned up). The party invoking the court’s jurisdiction
bears the burden of establishing these elements by the manner and degree of evidence
required at each stage of the litigation. /d. at 561.

Here, as to the Joint Claims, the Court finds it unlikely Mr. Willey has standing to
pursue his claims because he has not suffered an injury in fact. Article III standing requires
an invasion of a legally protected interest which is (a) concrete and particularized; and (b)
actual or imminent, not conjectural or hypothetical.” See Lujan, 504 U.S. at 560-61. Here,
Mr. Willey has not identified a legally protected interest. The Complaint makes clear he is
not a biological parent of the Student, and, while disputed by the District, Mrs. Willey
claims to be the Student’s sole legal guardian. The evidence before this Court fails to show
any legal relationship between Mr. Willey and the Student. Thus, Mr. Willey lacks any
Article III standing as to claims regarding the Student. However, because Mrs. Willey has
standing to pursue both the Joint Claims and her Individual Claims, the Court will proceed

to further analyze the instant motion on the merits.

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2. Mootness

A corollary to Article III standing, mootness requires a live controversy and that
plaintiff possess a personal interest in the outcome of the case throughout all stages of the
proceedings. Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1242 (10th
Cir. 2011); see also Kan. Jud. Rev. Bd. v. Stout, 562 F.3d 1240, 1245 (10th Cir. 2009). “If,
during the pendency of the case, circumstances change such that the plaintiff's legally
cognizable interest in a case is extinguished, the case is moot and dismissal may be
required.” Jd. A party claiming that there is no longer a live case or controversy bears the
burden of demonstrating mootness. Chihuahuan Grasslands All. v. Kempthorne, 545 F.3d
884, 891 (10th Cir. 2008).

In deciding whether a case is moot, the crucial question is whether granting a present
determination of the issues offered will have some effect in the real world. Jd. at 1246
(quotations omitted). When it becomes impossible for a court to grant effective relief, a
live controversy ceases to exist, and the case becomes moot. United States v. Hahn, 359
F.3d 1315, 1323 (10th Cir.2004) (en banc). “Generally, repeal of a challenged statute
causes a case to become moot because it extinguishes the plaintiff's legally cognizable
interest in the outcome, rendering any remedial action by the court ineffectual.” Stout, 562
F.3d at 1246.

However, voluntary cessation of a defendant’s conduct does not moot a case unless
it is “absolutely clear the allegedly wrongful behavior could not reasonably be expected to
recur.” West Virginia v. Env’t Prot. Agency, 142 S.Ct. 2587, 2607 (2022). Thus, the

defendant bears a particularly heavy burden in demonstrating a case is moot where the

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“only conceivable basis for a finding of mootness” is the defendant’s voluntary conduct.
Id. (quoting Friends of the Earth, Inc. v. Laidlaw Env’t Servs (TOC), Inc., 528 U.S. 167,
189 (2000)). This is where Defendants’ mootness argument fails.

Defendants argue the Willey’s Joint Claims are moot in their entirety because the
Student—upon the Student’s request—is being referred to by birth name and
corresponding pronouns. (See ECF No. 1 4 39, ECF No. 16-3 ff 5-6.) Because there is no
longer any ongoing harm, Defendants argue there is no longer an active case or
controversy. The parties also do not dispute that at one point, the Student asked to be
referred to by a male name and pronoun, and the District honored that request without
informing the Willeys. (See ECF No. 16-3 §§ 3-4.)

Based on the record currently before the Court, Defendants’ argument the case is
moot is without merit. Defendants have not withdrawn or eliminated the Policy. The
Policy’s inapplicability is the result of a third party’s request, which could change at any
time, triggering the Policy.’ The Policy therefore remains applicable. In addition,
Defendants’ arguments ignore the Policy’s continued application to Mrs. Willey, as a
teacher. Again, the fact Mrs. Willey has not been required to apply it and may never have
to apply it is not because Defendants have withdrawn or suspended the Policy.

To this end, there is nothing in the record to suggest the Policy has been repealed or

otherwise changed. See Stout, 562 F.3d at 1246. Further, the District does not allege they

7 Mrs. Willey also attests at least three teachers are still addressing the Student by a male name and
pronouns. (ECF No. 21-1 §§ 10-11.) Although this creates a factual dispute, it is not material to the Court’s
mootness analysis.

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will not seek to enforce the Policy or have amended or suspended the Policy. With the
Policy still in place, there is no reason to think Defendants would not pivot back to their
original position regarding the Student should the Student change the Student’s mind.
Neither is there any indication that Defendants would not expect Mrs. Willey to abide by
the Policy if she were asked to by a student. Considering the evidence before the Court, it
is not “absolutely clear the allegedly wrongful behavior could not reasonably be expected
to recur.” West Virginia, 142 S.Ct. at 2607. Thus, the Defendants are unlikely to carry their
particularly heavy burden to show this case is moot. Friends of the Earth, Inc., 528 U.S. at
189.

3. Fourteenth Amendment Right to Direct the Upbringing of Children®

a. The General Fundamental Right

The Fourteenth Amendment provides that no State shall “deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1; see Troxel
v. Granville, 530 U.S. 57, 65 (2000). The Supreme Court has long recognized the Due
Process Clause guarantees more than fair process and includes a substantive component
that “provides heightened protection against government interference with certain
fundamental rights and liberty interests.” Troxel, 530 U.S. at 65 (quoting Washington v.

Glucksberg, 521 U.S. 702, 720 (1997)). One such protected liberty interest—among the

® The Court reiterates Mr. Willey does not have standing to pursue any of the Joint Claims as they pertain
to the Student, and such claims belong to Mrs. Willey alone. However, for simplicity and consistency the
Court will still refer to the Joint Claims being pursued by the plural “Willeys.”

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longest recognized by the Supreme Court—is the interest of parents in the care, custody,
and control of their children. /d.

In Meyer v. Nebraska, the Supreme Court first recognized the Due Process Clause
protected the right to “establish a home and bring up children,” and to “control the
education of their own.” 262 U.S. 390, 399, 401 (1923). While the Court struck down a
Nebraska statute that prohibited the teaching of subjects except in English, it still
recognized:

The power of the state to compel attendance at some school and to make

reasonable regulations for all schools, including a requirement that they shall

give instructions in English, is not questioned. Nor has challenge been made

of the state’s power to prescribe a curriculum for institutions which it

supports.
Id. at 402.

The Court further expounded on parents’ liberty interest in Pierce v. Soc’y of the
Sisters of the Holy Names of Jesus and Mary, noting “[t]he child is not the mere creature
of the state; those who nurture him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional obligations.” 268 U.S. 510, 535.
Pierce struck down a portion of Oregon’s Compulsory Education Act that required parents
send their child “to a public school for a period of time a public school shall be held during
the current year[,]” finding it interfered with a parent’s right to direct the upbringing and
education of children under their control. Jd. at 530, 534-35. In affirming the right of
parents to send their children to private schools, the Court stated:

No question is raised concerning the power of the state reasonably to regulate

all schools, to inspect, supervise and examine them, their teachers and pupils;
to require that all children of proper age attend some school, that teachers

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shall be of good moral character and patriotic disposition, that certain studies

plainly essential to good citizenship must be taught, and that nothing be

taught which is manifestly inimical to the public welfare
Id. at 534. Supreme Court case law has since affirmed that “parental direction of the
religious upbringing and education of their children in their early and formative years have
a high place in our society.” Wisconsin v. Yoder, 406 U.S. 205, 213 (1972). While the basic
fundamental right of parents in the care, custody, and control of their children is well
established, it is the scope and contours of that right in dispute in this case.

In substantive due process cases, the Supreme Court has required a “careful
description” of the asserted fundamental liberty interest, with “[o]ur Nation’s history, legal
traditions, and practices [providing] the crucial guideposts for responsible decision
making.” Glucksberg, 521 U.S. at 721. The Due Process Clause therefore protects only
those fundamental rights and liberties “deeply rooted in this Nation’s history and tradition”
and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would
exist if they were sacrificed.” Jd. (citing Moore v. City of E. Cleveland, Ohio, 431 U.S. 494,
503 (1977) (plurality opinion)).

The Supreme Court has been reluctant to expand the concept of substantive due
process because “the guideposts for responsible decisionmaking in this uncharted area are
scarce and open-ended.” /d. at 720 (quoting Collins v. Harker Heights, 503 U.S. 115, 125
(1992)). Courts must exercise the upmost care in breaking new ground in this field, mindful
that the liberty protected by the Due Process Clause may not be transformed into the policy
preferences of the judiciary. Jd. (citing Collins, 503 U.S. at 125; Moore 431 U.S. at 502).

As the Supreme Court recently observed:

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“substantive due process has at times been a treacherous field for this Court,”

and it has sometimes led the Court to usurp authority that the Constitution

entrusts to the people’s elected representatives. As the Court cautioned in

Glucksberg, “[w]e must ... exercise the utmost care whenever we are asked

to break new ground in this field, lest the liberty protected by the Due Process

Clause be subtly transformed into the policy preferences of the Members of

this Court.”

Dobbs v. Jackson Women’s Health Organization, — U.S. —, 124 S.Ct. 2228, 2247-—
48 (2022) (internal citations omitted).

Here, the Willeys argue that the Policy violates their Fourteenth Amendment
substantive due process rights by: (1) concealing information regarding social transitioning
which violates their fundamental parental right to make medical and mental health care
decisions for their children; (2) interfering with their fundamental right to direct the
upbringing and education of their children; and (3) concealing information regarding social
transitioning which violates their right to familial association.? (ECF No. 7 at 10, 16 and
17).

b. The Right to Direct Medical Care

Both the Supreme Court and Tenth Circuit have recognized the Due Process Clause
provides some level of protection for parents’ decisions regarding their children’s medical
care. See Parham v. J.R., 442 U.S. 584, 603 (1979); PJ ex rel. Jensen v. Wagner, 603 F.3d
1182, 1197 (10th Cir. 2010). While the exact scope and contours of this right have not been

well defined, “a parent’s general right to make decisions concerning the care of her child

includes, to some extent, a more specific right to make decisions about the child’s medical

® The Willeys also raise a Free Exercise claim, which will be discussed later in this Order.

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care.” Wagner, 603 F.3d at 1197 (citing Dubbs v. Head Start, Inc., 336 F.3d 1194, 1203
(10th Cir. 2003)). However, nothing provided to this Court would support that the
enactment or application of the Policy constitutes medical or health care for which parental
consent would be required.

The Supreme Court has long cautioned parental rights—including the right to direct
a child’s medical care—are not absolute or unlimited. /d. at 1197-98 (citing Prince v.
Massachusetts, 321 U.S. 158, 166 (1944)); see also Doe v. Woodard, 912 F.3d 1278, 1300
(10th Cir. 2019) (“The right to direct a child’s medical care is not absolute.”). States also
have a compelling interest in protecting the lives and health of the children within their
borders. See Globe Newspaper Co. v. Superior Ct. of Norfolk Cnty., 457 U.S. 596, 607
(1982). Thus, when a child’s health is endangered by parents’ decisions, in some
circumstances, the State may intervene without violating the parents’ constitutional rights.
See Parham, 442 U.S. at 603.

Turning to the claim at issue here, the Willeys specifically argue the Defendants
concealing information regarding the Student’s assertion of a different gender identity and
request to socially transition—a recognized mental health intervention—violate their
fundamental parental rights to make medical and mental health care decisions. (See ECF
No. 7 at 14.) Based upon the facts as currently presented, the Court finds the Willeys are
unlikely to succeed on the merits of their Fourteenth Amendment parental rights claim in
this regard.

First, assuming arguendo that the Willey’s asserted fundamental right conveys an

absolute right to direct their child’s medical and mental health care, the Willeys have failed

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to establish how the Policy infringes upon that right. Numerous courts have recognized
being transgender is not a psychiatric condition, and “implies no impairment in judgment,
stability, reliability, or general social or vocational capabilities.” Grimm v. Gloucester
Cnty. Sch. Bd., 972 F.3d 586, 594 (4th Cir. 2020); see Foote v. Town of Ludlow, No. 22-
30041-MGM, 2022 WL 18356421, at *5 (D. Mass. Dec. 14, 2022) (citing Grimm and
dismissing claim school usurped parent’s right to make medical and mental health
treatment decisions); Doe by and through Doe v. Boyertown Area Sch. Dist., 276 F.Supp.3d
324, 367 (E.D. Penn. 2017) (finding being transgender is not a medical or psychiatric
condition).

However, many of those same courts have recognized some transgender individuals
are diagnosed with gender dysphoria, which is recognized by the American Psychiatric
Association’s Diagnostic & Statistical Manual of Mental Disorders (“DSM”) as “clinically
significant distress or impairment related to gender incongruence.” (See ECF No. 6-1 § 9);
see also Grimm, 972 F.3d at 594-95. At the same time, the DSM recognizes (and the
Willey’s expert concedes), “not everyone who is gender variant experiences gender
dysphoria.” (ECF No. 6-1 § 9.)

Here, the Willeys have not alleged the Student has ever been diagnosed with gender
dysphoria, nor that any of the Defendants erroneously believed the Student had been.
Instead, the Willeys allege the Student had been diagnosed with AHDH and PTSD and was
an individual for “whom affirming a discordant gender identity is antithetical to [the
child’s] health and well-being.” (ECF No. 1 §§ 4, 69) Beyond this conclusory statement,

there are no allegations in the Complaint or facts in the record before this Court that the

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Student had or has a diagnosed mental health condition related to gender identity. See
Foote, 2022 WL 18356421 at *4. Although the Willeys rely on the expert affidavit of Dr.
Erica Anderson (“Dr. Anderson”) (ECF No. 6-1), there is no indication Dr. Anderson has
ever spoken to—let alone examined—the Student. Absent evidence the Student was
suffering or diagnosed with a mental health condition related to gender identity, the Court
finds it unlikely the Willeys will succeed on the merits of their Fourteenth Amendment
parental right to direct medical care claim.

Further, the Willeys have failed to make a showing the Preferred Name Policy was
used as a means of treatment for any relevant diagnosed medical or mental health condition.
As the Foote court explained:

Plaintiffs have not alleged Defendant’s actions were undertaken as a part of

a treatment plan for gender dysphoria or explained how referring to a person

by their preferred name and pronoun, which requires no special training or

skill, has clinical significance when there is no treatment plan in place.

Similarly, there are no non-conclusory allegations that social transitioning

was actually occurring or includes supportive actions taken by third parties,

as opposed to actions a person takes to understand or align their external

gender presentation with their gender identity. Addressing a person using

their preferred name and pronouns simply accords the person the basic level

of respect expected in a civilized society generally ...

In the absence of supporting factual allegations, such as a relevant medically-

recognized diagnoses and treatment plan, the court disregards Plaintiff's

conclusory statements describing the use of preferred names and pronouns

as mental health treatment.

Id. at *5. The Court finds Foote to be both instructive and persuasive in this case.
Even assuming, for sake of argument only, that the Student had a diagnosed mental

health condition related to gender identity the Willeys fail to explain how the Policy

constitutes “treatment” for a relevant mental health condition. There are no allegations

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anyone at the school actively approached the Student regarding the Student’s preferred
name, nor that anyone at the school suggested the Student be referred to by any particular
name or pronoun. Rather, the school merely addressed the Student by the Student’s
requested preferred name and pronoun. Based on the allegations, it was the Student
initiating and requesting the use of a different name, not the District.

The Complaint is also void of allegations the Student met with any kind of counselor
or other mental health professional within the District regarding the Student’s preferred
name or pronouns. In fact, the Complaint and materials before this Court provide little
information, outside of the Student’s name request and the School’s compliance therewith.
Rather, the evidence focuses primarily on Mrs. Willey’s ex post facto interactions with
administrators. There is no indication that by adhering to the Student’s request the District
effectuated or intended to “treat” any physical or mental health condition.

Dr. Anderson’s conclusions are not inconsistent with this position. Dr. Anderson’s
affidavit states “social transition (and variations) [refers] primarily to adopting a new name
and/or pronouns that differ from one’s natal sex [,] a social transition can include more
than just name and pronoun changes, [including changing one’s] hairstyle, clothing, or
their appearance in other ways, [using] opposite sex facilities, and/or [making] other
changes.” (ECF No. 6-1 4 8) (emphasis added). There is nothing in the record to indicate
the school “adopted” a new name or pronoun. Rather, it was the Student adopting a new
name, and the school passively recognizing the Student’s wishes. Further, there are no
allegations the Student ever changed the Student’s hairstyle, clothing, appearance or sought

to use opposite sex facilities. Nor is there any evidence the school suggested, facilitated, or

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encouraged the Student to engage in such behaviors as part of a “treatment” plan. In sum,
there is insufficient evidence to suggest the Policy amounted to active social transitioning
or any other kind of “treatment” for a mental health condition. Thus, the Court finds it
unlikely the Willeys would succeed on the merits of their claim.
c. Parental Right to Direct Care, Upbringing, and/or Education

The Willeys further assert that by “[d]riving a wedge between the parent and child,
as Defendants are doing through implementing the [Preferred Names Policy] with [the
Student, it] infringes on the parents’ right to control the upbringing ofa child, a right which
falls within the sphere of protected liberty that is ‘objectively, deeply rooted in this Nation’s
history and tradition.” Dubbs 336 F.3d at 1202.” (ECF No. 7 at 19.) The Willeys further
contend that the Student Privacy Policy infringes on their fundamental parental rights by
“actively and intentionally deceiving them through the use of children’s ‘preferred’ names
and pronouns at school, but legal name and pronouns in the parents’ presence.” (Jd.)

While the Supreme Court has never been called upon to define the “precise
boundaries” of a parent’s right to control a child’s upbringing and education, it is clear such
a right is neither absolute nor unqualified. See John and Jane Parents I v. Montgomery
Cnty. Bd. of Educ., No. 8:20-3552-PWG, — F.Supp.3d —, 2022 WL 3544256 (D. Md.
Aug. 18, 2022) (citing Bailey v. Va. High Sch. League, Inc., 488 F. App'x 714, 716 (4th
Cir. 2012); C_N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 182 (3d Cir. 2005)). The
Supreme Court has stressed Meyer and Pierce are limited in scope, affirming the right of
private schools to exist and operate, and lend “no support to the contention that parents

may replace state educational requirements with their own idiosyncratic views of what

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knowledge a child needs to be a productive and happy member of society.” Runyon v.
McCrary, 427 U.S. 160, 177 (1976) (quoting Yoder, 406 U.S. at 239 (White, J.,
concurring)).

The Tenth Circuit has likewise acknowledged a parent’s right to direct a child’s
education exists but is limited in scope. Swanson v. Guthrie Indep. Sch. Dist. No. I-L, 135
F.3d 694, 699 (10th Cir. 1998). In Swanson the court noted, “[t]he case law in this area
establishes that parents simply do not have a constitutional right to control each and every
aspect of their children's education and oust the state's authority over that subject.” Jd.
(noting other courts had held “that parents have no right to exempt their children from
certain reading programs the parents found objectionable, or from a school's community-
service requirement, or from an assembly program that included sexually explicit topics.”);
see Cornerstone Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 136 (Sth
Cir. 2009) (citing Swanson and finding “[t]he parents' right protects their prerogative to
make choices regarding the type of education—e.g., public, private, or home-schooling—
that their child receives but not particular components of that education, such as
participation in interscholastic athletics or enrollment in particular courses.”’)

In regard to the Preferred Names Policy, to support an intrusion of the Willeys’
fundamental parental rights, this Court would have to significantly expand the contours of
the parental rights articulated in Meyer and Pierce. Such expansion would be at odds with
Dobbs’ and Glucksberg’s warning that courts must proceed with the upmost care in
breaking new ground in the field of substantive due process rights. Moreover, given

Runyon and Swanson’s affirmation that both Meyer and Pierce are limited in scope, this

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Court does not believe such a dramatic expansion is likely at this juncture or supported by
existing precedent.' Considering the lack of supporting caselaw for these propositions and
the high bar for expanding existing fundamental rights, the Court finds it unlikely the
Willeys would succeed on the merits of such a theory.

As to the Student Privacy Policy, the Willey’s assertion that they, as parents, have
a fundamental right to know at all times what the Student is being called likewise faces
significant legal and factual hurdles that lead the Court to conclude it is unlikely the Willeys
will succeed on the merits at this juncture. However, as discussed below, there is a
component of the Student Privacy Policy that this Court finds constitutionally problematic.

The Willey’s Complaint fails to allege and there is no evidence that the District ever
actively withheld information or deceived the Willey’s regarding the Student’s request to
be called by the Student’s preferred name or pronoun. (See ECF No. 1 {§ 27-32.) The
Complaint alleges the Student requested and the School complied with the Student’s
request to be called by a male name and pronoun at the beginning of the 2021-22 school
year, and that the Willeys were neither “informed nor advised” regarding the Student’s
request. (Ud. J] 25-26.) The absence of such evidence also impairs the Willey’s ability to

connect the Policy to their alleged injury as it is not “fairly traceable” to the Policy and is

’° In addition to those already mentioned, numerous other courts have specifically rejected the position that
parents have an absolute right to impose their demands and preferences on public schools or their activities.
See Fields v. Palmdale Sch. Dist., 427 F.3d 1197 (9th Cir. 2005) amended on denial of rehearing, 447 F.3d
1187 (9th Cir. 2006) (finding parents do not have a fundamental right to generally to direct how a public
school teaches their child); Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008); Crowley v. McKinney, 400 F.3d
965, 968 (7th Cir. 2005) (finding Meyer and Pierce are about a state’s denial of a private education, and do
not convey a right for parental management); Leebaert v. Harrington, 332 F.3d 134, 140-42 (2d Cir. 2005);
but see Gruenke v. Seip, 225 F.3d 290 (3d Cir. 2000). At a minimum, given the apparent circuit split, the
Court cannot say the Willeys would likely be successful on the merits under this theory.

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instead “the result of the independent action of some third party not before the court.” See
Lujan, 505 U.S. at 560. To establish a constitutional injury and nexus the Willeys would
have to demonstrate the Constitution imposes an affirmative obligation on the District to
actively disclose information regarding a student—even in the absence of a parent’s
inquiry or request. Based upon current caselaw it does not appear there is a strong
likelihood of success on the merits of this argument.

However, a parent’s established fundamental right to direct the upbringing and
education of their children would appear to be burdened ifa parent was misinformed or the
District or a teacher refused to respond to a parent’s inquiry regarding their minor child’s
request to be called by a different name, absent a showing of some danger to the health or
wellbeing of the student.

To the extent the Student Privacy Policy would preclude a teacher or school district
personnel, absent a minor student’s consent, from answering or responding to a parent’s or
guardian’s inquiry as to whether their child is being called by other than their legally given
name or required to lie to a parent or guardian as to the name the minor student is being

called by, it creates a likely constitutional problem.'!

'' As noted supra the Preferred/Chosen Names Procedure requires staff to respect the privacy of all students
regarding such choice. (ECF No. | at 68-69.) Ms. Bolton’s September 9, 2022 email (ECF No. | at 75-76)
clarified that “[w]hen a student indicates that their family is not supportive of their gender identity and/or
the District is concerned for the student’s safety, the District will honor a student’s request for
confidentiality until the student consents to the disclosure and/or the District completes an individualized
assessment and rules out any particular and substantiated concern of real harm to the student.” The use of
the disjunctive and conjunctive make the Policy ambiguous. There is no evidence that any individualized
assessment was ever conducted on the Student in this case. It should be noted that under Wyo. Stat. § 14-
3-205, school teachers are required to report any believed or suspected child abuse or neglect.

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Parents and legal guardians of minor children have a fundamental right to make
decisions concerning the care, custody and control of their children. Troxel, 530 U.S. at
65-66 (2000) (citing with approval Stanley v. Illinois, 405 U.S. 645, 651 (1972)). Parents
and guardians also enjoy the liberty of directing the upbringing and education of minor
children under their control. /d. at 65 (citing with approval Pierce, 268 U.S. at 534-35). To
the extent the Student Privacy Policy prohibits a teacher or school employee, upon inquiry
by a parent or legal guardian, from responding or providing accurate and complete
information concerning their minor child (and absent a threat to the wellbeing of the
student), it burdens a parent’s fundament right to make decisions concerning the care,
custody and education of their child. See Ricard v. USD 475 Geary Cnty., Kan. Sch. Ba.,
No. 5:22-cv-05015-HLT-GEB, 2022 WL 1471372, at *8, n.12 (D. Kan. May 9, 2022)
(noting it is “difficult to envision why a school would even claim—much less how a school
could establish—a generalized interest in withholding or concealing from the parents of
minor children information fundamental to their identity, personhood, and mental and
emotion wellbeing such as their preferred name and pronouns;” further finding “it is
illegitimate to conceal information from parents for the purpose of frustrating their ability
to exercise a fundamental right.”)

While parents do not have the right to manage the operations of a school or even the
courses and curriculum (see Swanson, 135 F.3d at 699), they do have a right to direct their
minor child’s education which cannot be accomplished unless they are accurately informed
in response to their inquiries. Similarly, parents could not make a reasonable choice

regarding the type of education—public, private, or home schooling, see Cornerstone

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Christian, 563 F.3d at 136—if they are unaware of circumstances that have a significant
bearing on that decision because of the school’s withholding of information or active
deception, despite their inquiry.

Based upon the law and facts presented at this point the Willeys are unlikely to
succeed on the merits of their Fourteenth Amendment parental rights claims challenging
the Preferred Names Policy. However, as set forth above, to the extent the Student Privacy
Policy were interpreted, absent student consent allowing disclosure, to require a teacher or
school district employee to: (1) refuse to disclose said information; or (2) provide
materially misleading or false information; it presents issues that potentially implicate both
constitutional and statutory rights.'* The Court therefore finds the Willeys have a strong
likelihood of success on the merits challenging the Student Privacy Policy to these ends.

Certainly, if there was a reasonable basis to fear the minor child would be in danger
or potentially abused, that could provide an exception to the disclosure and corresponding
duty to report under Wyoming law. However, there is no suggestion that such a situation
existed in this case. Nevertheless, the Policy is not so limited.

d. Applicable Tests: Substantive Due Process Claims
Finally, both the Supreme Court and Tenth Circuit have prescribed several tests

when evaluating substantive due process claims. See Halley v. Huckaby, 902 F.3d 1136,

'? The refusal to disclose such information likely runs afoul of the District’s obligations under the Federal
Educational Rights and Privacy Act of 1974 (“FERPA”). While the Supreme Court has made clear FERPA
does not confer a private right of action under § 1983 or any other theory—and thus is of no help to the
Willey’s chances of success on the merits—it could certainly lead to other consequences for the District.
See Gonzaga Univ. v. Doe, 526 U.S. 273, 287 (2002).

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1153 (10th Cir. 2018). In some instances, substantive due process cases turn on whether
the government has infringed on a “fundamental right.” See e.g., Glucksberg, 521 U.S. at
721-22. Other times, the legal test asks whether the government action deprives a person
of life, liberty, or property in a manner that shocks the judicial conscience. See e.g., Cnty.
of Sacramento v. Lewis, 523 U.S. 833, 846 (1998). The Tenth Circuit has concluded that
courts should apply the fundamental-rights approach when the plaintiff challenges
legislative action, and the shocks-the-conscience approach when the plaintiff seeks relief
for tortious executive action. Halley, 902 F.3d at 1153; see Browder v. City of Albuquerque,
787 F.3d 1076, 1079 (10th Cir. 2015); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1182
(10th Cir. 2009).

Using the fundamental rights approach, the Supreme Court has noted the Fourteenth
Amendment’s Due Process Clause “forbids the government to infringe fundamental liberty
interests at all, no matter what process is provided, unless the infringement is narrowly
tailored to serve a compelling state interest.” Washington v. Glucksberg, 521 U.S. 702, 721
(1997) (quoting Reno v. Flores, 507 U.S. 292, 302 (1993)). However, if the plaintiff fails
to establish the threshold requirement that the challenged state action implicates a
“fundamental right,” then only “a reasonable relation to a legitimate state interest to justify
the action” is required to pass constitutional muster. Jd. at 722.

Conversely, plaintiffs face a much higher bar under the shocks the conscience
approach. “The ultimate standard for determining whether there has been a substantive due
process violation is whether the challenged action shocks the conscience of federal judges.”

Moore v. Guthrie, 438 F.3d 1036, 1040 (10th Cir. 2006) (cleaned up). It is well settled
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negligence is not sufficient to shock the conscience, and a plaintiff must do more than show
the government actor intentionally or recklessly caused injury by abusing or misusing
government power. Jd. Due process protection has “[h]istorically been applied to deliberate
decisions of government officials to deprive a person of life, liberty, or property.” Daniels
v. Williams, 474 U.S. 327, 331 (1986). Put another way, “[t]o be conscience-shocking, [the
action must be] so arbitrary to be as an instrument of oppression, egregious, outrageous,
and so brutal and offensive that it runs afoul of traditional ideas of fair play and decency.”
Woodard, 912 F.3d at 1301 (cleaned up).

Relying primarily on Dubbs, the Willeys urge the Court to apply the former test
because a fundamental right has been implicated. See 336 F.3d at 1203. However, this
ignores the more recent guidance from Halley, under which the test is determined by the
nature of the state action, not the nature of the fundamental right alleged to be implicated.
In this particular case, whether the Policy itself and the accompanying actions by the
individual defendants amount to legislative or executive action is an unsettled matter, and
one the Court need not resolve today. Applying either approach, the Court finds the Willeys
are unlikely to succeed on the merits of their claim as applied to the Preferred Names
Policy. Conversely, as set forth above and under either approach, to the extent the Policy
would preclude a school district employee from responding to a minor parent’s inquiry or
require providing false information, absent a reasonable concern of abuse, it would be
arbitrary and conscience-shocking.

As to the Preferred Names Policy, the Willeys have failed to either establish a

fundamental right, or where they have sufficiently identified a fundamental right, that the
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Preferred Names Policy implicates that right. Having failed to do so, only “a reasonable
relation to a legitimate state interest to justify the action” is required. Glucksberg, 521 U.S.
at 722. The Willeys have failed to make any showing that the Preferred Name Policy lacks
a reasonable relation to several legitimate interests, such as potential compliance with Title
IX and generally avoiding discrimination. As such, they have not shown a likelihood of
success on the merits.

The Willeys arguments fair no better under the “shocks the conscience standard.”
Given the record at this stage, the Court cannot say the Preferred Names Policy or the
actions of any of the defendants were so “egregious, outrageous, and so brutal and
offensive” that they run afoul of “traditional ideas of fair play and decency.” Woodard, 912
F.3d at 1301. Calling a student by their preferred and requested name and pronoun is not
conscience shocking.

However, the same cannot be said for the Student Privacy Policy to the extent it
precludes disclosure in response to a parent's inquiry absent the minor student’s consent
and in the absence of a reasonable safety concern.

Fundamentally, such an approach makes no sense. Simply by refusing or being
unable to respond to the minor parent’s inquiry, a school district employee effectively
answers the parent’s question, unless they blatantly lie to the parent. Where there is no
reasonable concern for the minor child’s safety there is no rational—let alone compelling

reason—to prevent a school district employee from honestly responding to a parent’s

inquiry.

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Moreover, as discussed above, by failing to provide complete and accurate
information it would interfere with parent’s liberty of directing the upbringing and
education of minor children under their control. To the extent the Student Privacy Policy
is applied in this fashion, it shocks the judicial conscience.'? Moore, 438 F.3d at 1040. To
these ends, the Willeys have shown a strong likelihood of success on the merits of their
challenge to the Student Privacy Policy.

e. Fourteenth Amendment Right to Familial Association

The Due Process Clause also protects the freedom of personal choice in matters of
marriage and family life. See Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-40
(1974) (collecting cases). The Tenth Circuit has recognized the right to familial association
as a substantive due process right under this umbrella, specifically applying the shocks the
conscience legal standard. See Halley, 902 F.3d at 1153, 1155. A constitutional claim of
interference with the right to familial association requires two showings:

(1) that the defendants intended to deprive the plaintiffs of their protected
relationship with a family member, and (2) that balancing the plaintiffs
interest in their protected relationship against the state's interest in the family
member's health and safety, defendants either unduly burdened plaintiffs'
protected relationship or effected an unwarranted intrusion into that
relationship.

Id. (quoting Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014)) (cleaned up). “In

conducting this balancing, the court will consider, among other things, the severity of the

'3 Because the Willeys have satisfied the more demanding “shocks the conscience standard,” the Court is
satisfied they would also satisfy the less stringent fundamental rights approach.

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infringement on the protected relationship, the need for defendants' conduct, and possible
alternative courses of action.” Thomas, 765 F.3d at 1196.

However, the Supreme Court has also recognized “the family itself is not beyond
regulation in the public interest, and “neither rights of religion nor rights of parenthood are
beyond limitation.” See Prince v. Massachusetts, 321 U.S. 158, 166 (1944). As the Prince
Court cautioned:

Acting to guard the general interest in youth's well being, the state as parens

patriae may restrict the parent's control by requiring school attendance,

regulating or prohibiting the child's labor, and in many other ways. Its
authority is not nullified merely because the parent grounds his claim to
control the child's course of conduct on religion or conscience.

Id.

Here, the Willeys attempt to broaden the right of familial association to encompass
the protection of “the private realm of the family from the interference by the state.” (ECF
No. 7 at 20.) They claim the school intentionally interfered with the sanctity of their family
relationship by concealing “critical mental health information,” and burdened their family
relationship by excluding them entirely from the “parental decision-making process”
regarding their child because the Willeys do not agree with the school’s viewpoint
regarding gender identity. (/d. at 20-21.) Based upon the facts and case law this Court is
not persuaded the Willeys are likely to succeed on the merits of such a claim.

First, while the Willeys attempt to retrofit a familial association claim into a
“familial privacy” action, their proffered caselaw does not support such an interpretation.

Cases such as Halley and Thomas illustrate that the type of “deprivation” typically at issue

involves the state removing a child from the parent’s home—not a state policy or a

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procedure that purportedly takes a “decision” away from the parents. There is nothing to
suggest the Policy deprives the Willeys of their familial association with the child in this
sense. Assuming arguendo the Willey’s interpretation is correct, any state policy that
caused tension or disagreement between the parents and the child would potentially
implicate a fundamental constitutional right. Given the absence of authority to this effect
and the obvious far-reaching implications, the Court highly doubts the Willeys will be
successful on the merits.

Second, the Willey’s position implies it is within the protected sphere of familial
privacy and association to determine what name and pronoun a child should use and be
referred to by others. Such a proposition would dramatically expand a fundamental
substantive due process right, which this Court must utilize the upmost care in doing. See
Glucksberg, 521 U.S. at 721. This also fails to consider the impact on a variety of the
child’s potential fundamental rights. Given the potential implications and high bar, the
Court finds it unlikely the Willeys would be successful on the merits under such a theory.

4, First Amendment Right to Free Exercise of Religion

a. Free Exercise Law Generally

The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting
the free exercise” or religion. U.S. Const. amend. I. The Free Exercise Clause is applicable
to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S.
296, 303 (1940). A plaintiff bears the initial burden to demonstrate an infringement of his
or her rights under the Free Exercise Clause, and if the plaintiff carries that burden the

focus then shifts to the defendant to show that its actions were nonetheless justified and

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appropriately tailored. See e.g., Fulton v. City of Philadelphia, 141 S.Ct. 1868, 1876-77
(2021).

A plaintiff may show a violation of the Free Exercise Clause in numerous ways,
including by showing a government entity has burdened his or her sincerely held religious
beliefs or practices pursuant to a policy that is not “neutral” or “generally applicable.”!*
Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2422 (2022) (citing Emp. Div., Dept. of
Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990)). Should a plaintiff make
such a showing, a court will find a First Amendment violation unless the government can
satisfy “strict scrutiny” by “demonstrating its course was justified by a compelling state
interest and was narrowly tailored in pursuit of that interest.” Jd. (quoting Church of
Lukumi Babalu Aye, Inc. v. Hiyaleah, 508 U.S. 520, 546 (1993)). However, a law that is
both neutral and generally applicable need only be rationally related to legitimate

government interest to survive a constitutional challenge. Grace United Methodist Church

v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006).

'* A plaintiff may also prove a Free Exercise violation by showing “official expressions of hostility” to
religion or religious viewpoints that accompany laws or policies burdening religious exercise. Masterpiece
Cakeshop, Lid. v. Colo. Civ. Rights Comm'n, 138 S.Ct. 1719, 1732 (2018) (further noting the government
“cannot act in a manner that passes judgment on or presupposes the illegitimacy of religious beliefs and
practices.”). As such, the government is obliged to proceed in a manner neutral toward and tolerant of a
claimant’s religious beliefs. Jd. at 1731. Factors relevant to the assessment of governmental neutrality
include: (1) the historical background of the decision under challenge; (2) the specific series of events
leading to the enactment or official policy in question; (3) and the legislative or administrative history,
including contemporaneous statements made by members of the decisionmaking body. Jd. (quoting Lukumi,
508 U.S. at 540). At this point, the Willeys have not alleged any official expressions of hostility towards
religion to give rise to a claim under this approach.

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b. Sincerely Held Religious Beliefs and Burden

The first questions in any free exercise claim are whether the plaintiff's beliefs are
religious in nature, and whether those religious beliefs are sincerely held. United States v.
Seeger, 380 U.S. 163, 185 (1965). However, such religious beliefs need not be “acceptable,
logical, consistent, or comprehensible to others in order to merit First Amendment
protection.” Lukumi, 508 U.S. at 531. The beliefs must be “rooted in religion” because
“personal preferences and secular beliefs do not warrant the protection of the Free Exercise
Clause.” See Frazee v. Ill. Dept. of Emp. Sec., 489 U.S. 829, 833 (1989). It is also “not
within the judicial ken to question the centrality of particular beliefs or practices to a faith,
or the validity of particular litigants’ interpretations of those creeds.” Hernandez v. C.LR.,
490 U.S. 680, 699 (1989).

Here, the Willeys have pleaded five particular religious beliefs: (1) that human
beings are created male and female and that the natural created order regarding human
sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with
one’s identity, and biological reality, as either male or female; (2) that parents have a non-
delegable duty to direct the upbringing and religious training of the their children, including
concerning human sexuality and identity; (3) that all people are to be treated with respect
and compassion, which includes refraining from misrepresenting an individual’s natural
biological and created identity as either male or female; (4) that individuals are to speak
the truth regarding matters of sexual identity and biological reality as a male or female; and
(5) that children are to honor their father and mother, which means they are not to lie to

their parents or act in contravention to their parent’s direction and instruction. (ECF No. 1

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4] 180-84.) The Court will assume, for purposes of this proceeding only, that these beliefs
are “rooted in religion,” and therefore assume (without deciding) the Willey’s asserted
beliefs are religious in nature.

Religious beliefs are burdened in situations where the state (1) requires participation
in an activity prohibited by a sincerely held religious belief; (2) prevents participation in
conduct motivated by a sincerely held religious belief, or (3) places substantial pressure on
an adherent to engage in conduct contrary to a sincerely held religious belief. Hobby Lobby,
723 F.3d at 1138 (discussing application of test to Religious Freedom Restoration Act
case). The substantial pressure prong rests on established Supreme Court precedent, finding
“the state conditions receipt of an important benefit upon conduct proscribed by a religious
faith, or where it denies such a benefit because of conduct mandated by religious belief,
thereby putting substantial pressure on an adherent to modify his behavior and to violate
his beliefs . . .” Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 717-18 (1981).

The Tenth Circuit has further explained the requisite “burden” requires more than
“offending [a plaintiff's] personal religious beliefs,” and the challenged action must in
some way be coercive or compulsory in nature. Bauchman for Bauchman v. W. High Sch.,
132 F.3d 542, 557 (10th Cir. 1997). It is at this juncture the Willey’s Joint Claims begin
to face significant legal hurdles.

While it is apparent the Policy conflicts with at least some of their asserted beliefs,
they have not shown it does more than “offend [their] personal religious beliefs.” See
Bauchman, 132 F.3d at 557. What is notably absent is any allegation of coercion or

compulsion. As parents, they are not being coerced or compelled into recognizing any

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individual in any particular way inconsistent with their religious beliefs. Nor are they being
compelled or coerced to lie to anyone, or to “speak” any particular truth. Rather, the District
is recognizing a third-party—in this case, the Student—by the Student’s requested
preferred name and allegedly not sharing that information with them. Under the case law
such a causal relationship is likely to attenuated to create the requisite “burden” on religious
beliefs. At this juncture, the Court cannot say the Willey’s Joint Claims are likely to
succeed on the merits.

Mrs. Willey’s Individual Claims present a different story. Undoubtably, the
Preferred Names Policy conflicts with her belief that human beings are created either male
or female and cannot change regardless of an individual’s feelings or beliefs. (ECF No. 1
4 179.) Being compelled to call someone by a name or pronoun not in conformance with
this belief is the exact type of “coercion or compulsion” prohibited by the Free Exercise
Clause. However, for reasons discussed infra, Mrs. Willey’s objection to the Preferred
Names Policy is unlikely to succeed on the merits.

As discussed above, the Student Privacy Policy is problematic as it relates to Mrs.
Willey’s role as a teacher and to the extent it restricts her from responding to a minor
parent’s inquiry or having to lie in response to an inquiry, absent reasonable concern for
the student’s safety. However, having already determined the Willeys have a strong
likelihood of success on the merits for other reasons, the Court need not evaluate the
Student Privacy Policy as applied to Mrs. Willey as a teacher from a free exercise

perspective at this stage of the proceedings.

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c. Neutrality and General Applicability

Turning to neutrality and general applicability, a government policy does not qualify
as “neutral” if it is “specifically directed at religious practice.” Kennedy, 142 S.Ct. at 2422.
A policy can fail this test if it “discriminates on its face,” or if “a religious exercise is
otherwise its object.” Jd. (quoting Lukumi, 508 U.S. at 533).

A government policy is not “generally applicable” if it “prohibits religious conduct
while permitting secular conduct that undermines the government’s asserted interests in a
similar way” or “if it provides a mechanism for individualized exceptions.” Jd. (quoting
Fulton, 141 S.Ct. at 1877). Where the state has a mechanism to provide exceptions, it may
not refuse to extend that system to cases of religious hardship without a compelling reason.
303 Creative, 6 F.4th at 1184. Failing either the neutrality or general applicability test will
trigger strict scrutiny. Kennedy, 142 S.Ct. at 2422.

Here, as to the neutrality prong, there is nothing to suggest the Preferred Names
Policy is specifically aimed at religious practice. Rather, the consistent position of the
District has been the purpose of the Policy is to safeguard the physical and psychological
well-being of the students, to avoid discrimination, to conform with current statutory and
case law, and to maintain student privacy. (See e.g., ECF No. 1 § 66.) The statement by
Ms. Arnoldi that “[the school] does not get to base [it’s] decisions on personal and religious
beliefs” buttresses the notion the Policy was not aimed at religion. Although the Willeys
may contest the legitimacy of the District’s reasoning for the Policy, there is nothing in the
record to suggest it was specifically aimed at any religious practice or belief. At this stage,

the Court finds the Policy is likely neutral and is therefore unlikely to trigger strict scrutiny.
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There is also no evidence to suggest the Preferred Names Policy is not generally
applicable. At the outset, the Willeys verified Complaint alleges they “are informed and
believe” the District adheres to the Policy under a rigid “one size fits all protocol,” and
therefore do not grant exceptions for any purpose. (ECF No. 1 { 89.) To this end, the
Willeys continually allege the Policy does not permit accommodations for religious beliefs
(Id. | 62), and admit they have no way of knowing for sure how the Policy is being
implemented as to other children in the District. (/d. J 88.)

The Willey’s verified Complaint contains no allegations—nor suggestion—that the
District ever actually granted exceptions to the Preferred Names Policy, either for teachers
or families upon their request. In fact, Mrs. Willey alleges that any time a student requested
to be called by a different name or pronoun, a notification came up in the teacher portal,
and building principals ensured adherence. (/d. | 90.) Furthermore, the Preferred Names
Policy contains no mechanism for exceptions or exemptions on its face, and uses
mandatory, as opposed to permissive, language: “Accordingly, staff must use a student’s
preferred/chosen name or pronoun in verbal, written, and electronic communications.”
(ECF No. 16-2; ECF No. 1 at 68) (emphasis added). The Court finds it likely the Preferred
Names Policy is both neutral and generally applicable, and therefore unlikely to be
subjected to strict scrutiny. As such, the Court finds Mrs. Willey is unlikely to succeed on
the merits of her individual free exercise claim.

d. Kennedy v. Bremerton School District
Even if the Court were to find the Preferred Names Policy (as it relates to Mrs.

Willey’s Individual Claims) is not neutral and generally applicable, her free exercise claim

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faces another substantial legal hurdle that make it unlikely to succeed on the merits absent
further legal and factual development.

In Kennedy (as noted by Justice Thomas in his concurrence) the Court left
unresolved two issues related to the Free Exercise Clause: (1) How public employees’
rights under the Free Exercise Clause may or may not be different from those enjoyed by
the general public; and (2) what burden a government employer must shoulder to justify
restricting an employee’s religious expression. See Kennedy, 142 S.Ct. at 2433 (Thomas,
J., concurring). It did so because the school district’s justification for prohibiting a football
coach’s individual postgame prayer—that it ran afoul of the district’s Establishment Clause
duties—was no justification at all, as it was based on the district’s ““misconstruction” of
Establishment Clause.'° Jd. at 2432 (majority opinion). Because the Court concluded the
district’s policy could not be sustained under any level of scrutiny, it did not address the
question of what burden the district must carry.'° Jd. at 2426.

This case presents no such Establishment Clause concerns, and undoubtably Mrs.
Willey is a public employee who’s sincerely held religious beliefs are potentially being
burdened by a workplace policy. Indeed, this case potentially brings into the crosshairs the
exact scenario left unaddressed by the Supreme Court just last term—especially if the

Preferred Names Policy is not generally applicable.

' In so doing, the Supreme Court swept away what was left of Lemon v. Kurtzman, 403 U.S. 602 (1971).
'® Of note, the Court also found Mr. Kennedy had a colorable Free Speech claim under the first step of the
Pickering-Garcetti framework, as his prayer was “private speech” as opposed to government speech. Jd. at
2425.

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Given the Supreme Court’s admonition that one clause of the First Amendment
should not “trump the other two” and there is no sound reason to prefer one constitutional
guarantee over another, Kennedy, 142 S.Ct. at 2432, it is hard to imagine why a public
employee’s free exercise rights would warrant more protection than their Free Speech
rights. As will be discussed below, Mrs. Willey’s Free Speech rights are likely subject to
her employer’s control. Although it need not expound on or decide the issue at this time,
Mrs. Willey would likely face significant legal hurdles to demonstrate why her free
exercise rights are not similarly restricted.

5. First Amendment Right to Free Speech

The First Amendment’s free speech protections extend to teachers and students,
neither of whom “shed their constitutional rights to freedom of speech or expression at the
schoolhouse gate.” Kennedy, 142 S.Ct. at 2423 (quoting Tinker 393 U.S. at 506). Of course,
this does not mean the speech rights of public-school teachers are boundless—in addition
to being private citizens, they are employees paid in part to speak on the government’s
behalf and convey its intended messages. Id.

In cases implicating the free speech rights of government employees, the Supreme
Court has directed courts to proceed in two steps.'” Jd.; see Garcetti v. Cellabos, 547 U.S.
410, 418 (2006); Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391
U.S. 563 (1968). The first step involves a threshold inquiry into the nature of the speech at

issue. Kennedy, 142 S.Ct. at 2423. If a public employee speaks “pursuant to [his or her]

'7 Using the same precedents, the Tenth Circuit has instead framed this inquiry as a four-part balancing
test. See e.g., Montgomery v. City of Ardmore, 365 F.3d 926, 938-39 (10th Cir. 2004).

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official duties,” the Supreme Court has found the Free Speech Clause will generally not
shield the individual from the governmental employer’s control and discipline. Garcetti,
547 USS. at 421.

The critical question is whether the speech at issue is normally within the scope of
an employee’s duties, an inquiry that should be undertaken practically rather than with a
“blinkered focus on the terms of some formal and capacious written job description.” Lane
v. Franks, 573 U.S. 229, 233 (2014); Garcetti, 547 U.S. at 424. At the other end of the
spectrum, when an employee speaks “as a citizen addressing a matter of public concern,”
the First Amendment’s free speech protections may be implicated, and courts should
proceed to a second step. Garcetti, 547 U.S. at 423. Speech on “a matter of public concern”
is that which may be “fairly considered as relating to any matter of political, social, or other
concern to the community.” See Connick v. Meyers, 461 U.S. 138, 146 (1983). To
determine whether the speech involves a matter of public concern, a court should look to
the “content, form, and context of a given statement, as revealed by the whole record.”
Meriwether v. Hartop, 992 F.3d 492, 508 (6th Cir. 2021) (quoting Connick, 461 U.S. at
147-48).

At the second step, courts should engage in “a delicate balancing of the competing
interests surrounding the speech and its consequences.” Kennedy, 142 S.Ct. at 2423.
“Among other things, courts at this second step have sometimes considered whether an
employee's speech interests are outweighed by the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.” Jd.

(quoting Garcetti, 547 U.S. at 417). It is well established that public school teachers are

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public employees whose speech pursuant to their official duties is subject to the Pickering
analysis. See Westbrook v. Teton Cnty. Sch. Dist. No. 1,918 F.Supp 1475, 1492 (D. Wyo.
1996).

Here, it is important to note the impact the Policy has on Mrs. Willey’s speech. In
addition to potentially penalizing her for not complying with the Preferred Names Policy
or Student Privacy Policy, the Policy also tries to compel her to speak something not on
her mind—i.e., calling a student by pronoun or name she believes to be inaccurate either
in the classroom or when communicating with parents. In that sense, the Policy also
operates to compel her speech.

It is a “fundamental rule of protection under the First Amendment that a speaker has
the autonomy to choose the content of his own message.” See Hurley v. Irish-Am. Gay
Lesbian & Bisexual Grp. Of Bos., 515 U.S. 557, 573 (1995); 303 Creative v. Elenis, 600
U.S. — (2023); Rumsfeld v. Forum for Acad. & Inst. Rts., Inc., 547 U.S. 47, 61 (2006)
(recognizing “freedom of speech prohibits the government from telling people what they
must say”); Cressman v. Thompson, 798 F.3d 938, 951 (10th Cir. 2015). The Supreme
Court recently found that while the Pickering framework fits much less well where the
government compels speech, “if the speech in question is part of an employee’s official

duties, the employer may insist that the employee deliver any lawful message.” Janus v.

Am. Fed’n of State, Cnty., and Mun. Emps., Council 31, 138 S.Ct. 2448, 2473 (2018) (citing

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Garcetti, 547 U.S. at 421-22, 425-26).'® While Janus certainly left open the possibility
that Pickering may not apply to cases where the government compelled the speech of its
employees, the clear majority of courts to address the issue have concluded Pickering still
applies to such claims. See e.g., Meriwether, 992 F.3d at 509; Hiers v. Bd. of Regents of
Univ. of N. Tex. Sys., No. 4:20-CV-321-SDJ, 2022 WL 748502, at *14—15 (E.D. Tex. Mar.
11, 2022) (noting Janus left the question open and applying Pickering to compelled speech
claim); Gwinnett v. S.W. Fla. Reg’l Plan. Council, 407 F.Supp.3d 1273, 1281 (M.D. Fla.
2019).'? Absent clear directive from either the Supreme Court or Tenth Circuit to the
contrary, the Court applies the standard Pickering framework to Mrs. Willey’s compelled
speech claim.

At the first step, the Court has little trouble concluding that Mrs. Willey was being
asked—indeed compelled—to speak pursuant to her official duties as a teacher, and not as
a citizen on a matter of public concern. The Policy only implicates Mrs. Willey’s

interactions with students inside her classroom, and the communications she has pursuant

'S The Supreme Court found, “[i]f Pickering applies at all to compelled speech—a question we do not
decide—it would certainly require an adjustment in that context.” Janus, 138 S.Ct. at 2473. The Court noted
Pickering was based on the insight that “the speech of a public-sector employee may interfere with the
effective operation of a government office.” /d. It posed the following hypothetical:

Now, suppose that the assistant had not made any critical comments about the supervisors

but that the district attorney, out of the blue, demanded that she circulate a memo praising

the supervisors. Would her refusal to go along still be a matter of purely private concern?

And if not, would the order be justified on the ground that the effective operation of the

office demanded that the assistant voice complimentary sentiments with which she

disagreed?
Id. The Court did not arrive at a firm conclusion.
'? In addition, the Supreme Court has imposed a heightened burden on the government where the speech:
(1) does not involve a matter of government employment; and (2) takes place outside the workplace. See
United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 470, 475 (1995). However, there is no
indication the speech involved in this case would take place outside the workplace, so NTEU does not apply.

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to those duties with parents. While it could fairly be said issues surrounding transgenderism
are of “political, social, or other concern to the community,” the “content, form, and
context” of the potential speech at issue in this case do not give rise to matters of public
concern.

For example, Mrs. Willey is only be asked to refer to individual students by their
preferred name and pronoun. She has not alleged she will be speaking generally regarding
transgender individuals or being asked to convey any large-scale messages to her students
regarding transgender rights. She is also only being asked to speak to a small group of
individuals—in some cases to a single set of parents. Considering the form and context of
such interactions, it takes her potential speech out of the public arena and into a purely
private sphere.

Had Mrs. Willey been disciplined (or even faced with the threat of discipline) for
speaking out against the Policy or its justifications in a public setting—such as speaking at
a school board meeting or a rally as a concerned citizen—it would present an entirely
different set of circumstances. However, that is not the case here. Mrs. Willey is being
compelled to speak only in her capacity as a teacher in the private sphere.

The Court therefore finds the Policy only seeks to compel Mrs. Willey’s speech
pursuant to her official duties, and not restrict or compel her to speak as a citizen on matters
of public concern. As such, the Free Speech Clause will likely not shield her from the
District’s control. Garcetti, 547 U.S. at 421. The Court therefore need not address the

second Pickering step at this juncture.

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This outcome is not inconsistent with the Sixth Circuit’s recent decision in
Meriwether. There, the court declined to apply Garcetti’s general rule to a case “involving
speech related to scholarship or teaching,” instead finding a college professor’s refusal to
use preferred pronouns in class was protected speech under the First Amendment. 992 F.3d
at 511-12. After finding “the academic-freedom exception to Garcetti covers all classroom
speech related to matters of public concern, whether that speech is germane to the contents
of the lecture or not,” the court went on to apply Pickering and conclude the professor’s
refusal to use preferred pronouns was in fact a matter of public concern, and the balancing
weighed in favor of the professor’s free speech rights. Id.

However, crucial to the Meriwether court’s analysis was the teacher at issue was a
public university professor lecturing in class. The court specially recognized “the
expansive freedoms of speech and thought associated with the university environment,
[and] universities occupy a special niche in our constitutional tradition.” Jd. at 504 (quoting
Grutter v. Bollinger, 539 U.S. 306, 329 (2003)). It repeatedly emphasized Garcetti does
not apply to “public university professors” in the “academic context of a public university.”
Id at 505 (emphasis added). The Willeys do not identify—nor can the Court locate—any
decision extending Meriwether’s reasoning to a public K-12 setting.” Given Meriwether’s
justifications and lack of caselaw extending its reasoning to the K—12 setting, the Court

likewise declines to do so today.

0 One court recently refused to extend Meriwether to a Title VII case involving a public school teacher,
noting that “courts have continually emphasized the distinction between public K-12 schools and
universities in addressing speech and other constitutional issues.” Kluge v. Brownsburg Cmty. Sch. Corp.,
548 F.Supp.3d 814, 842 (S.D. Ind. 2021).

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In sum, because Mrs. Willey’s free speech claim hinges on her speaking on a matter
pursuant to her official duties and not as a citizen on a matter of public concern, the Court
finds she is not likely to be successful on the merits.

D. Second Prong: Irreparable Harm

“To obtain a preliminary injunction, a movant must establish that he is likely to
suffer irreparable harm in the absence of preliminary relief.” VN. Dep’t of Game & Fish
v. U.S. Dep’t of the Interior, 854 F.3d 1236, 1249-50 (10th Cir. 2017) (quoting Winter v.
Nat. Res. Def: Council, Inc., 555 U.S. 7, 20 (2008)) (internal quotation marks omitted).

99 66

Although irreparable harm “does not readily lend itself to definition,” “a plaintiff must
demonstrate a significant risk that he or she will experience harm that cannot be
compensated after the fact by money damages.” Fish v. Kobach, 840 F.3d 710, 751-52
(10th Cir. 2016) (internal quotations marks omitted). That harm “must be both certain and
great,” and not “merely serious or substantial.” VN. Game & Fish, 854 F.3d at 1250.
Moreover, the injury must be likely to occur before the court can rule on the merits of the
case. /d. (quoting Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1260 (10th Cir.
2003)). As previously noted, the loss of constitutional rights, even for a brief period of
time, constitutes irreparable harm. See Heideman, 348 F.3d at 1190.

As discussed supra, to the extent the Student Privacy Policy were interpreted, absent
student consent allowing disclosure and following parental inquiry to require a teacher or
school district employee to: (1) refuse to disclose said information; or (2) provide

materially misleading or false information; it presents issues that potentially tread on both

the Willey’s constitutional and statutory rights. Because there is a constitutional dimension

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to this problem, to the extent the Student Privacy Policy is interpreted in this manner it
likely causes irreparable harm.

The same cannot be said for the remainder of the Willey’s claims. In her affidavit
Mrs. Willey attests on or around May 1, 2023, she discovered the Student had a “secret cell
phone” that had been given to the Student by “others” without her knowledge. (ECF No.
21-1 4 10.) Upon “examining the content of the phone and speaking with [the Student],”
she discovered three teachers were still referring to the Student by a male name and
pronoun. (/d. § 11.) Through Ms. Bolton’s affidavit, the District maintains that upon the
Student’s request, the Student is now being referred to by a female name and pronoun.
(ECF No. 16-3 { 5-6.)

Mrs. Willey’s affidavit does not detail any of the messages or specifics as to how
and why she believes three teachers are continuing to refer to the Student by male pronouns.
(ECF No. 21-1 at § 11.) Regardless, Mrs. Willey does not claim anyone has ever lied to her
or deceived her as to what the Student is being called while at school. While her affidavit
names three teachers that she claims are calling the Student by a male name and pronoun,
she does not claim to have ever actually communicated with any of them. There is no
evidence demonstrating that the Defendants failed to respond or falsely responded to
Plaintiffs.

In addition, the Court finds the statements in Mrs. Willey’s affidavit do not provide
sufficient detail to allow this Court to even evaluate the reliability or source of any secret
cell phone to sufficiently show irreparable harm. There is no indication this “secret cell

phone” originated or was provided by any of the Defendants. Nor is there any indication

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how or where Mrs. Willey came across the information upon the phone’s inspection. In
sum, Mrs. Willey’s statements regarding the cell phone do not bear the sufficient indicia
of reliability for the Court to give them substantial weight when analyzing any ongoing
harm. Even should the situation change at the Student’s request, school is not in session
over the summer and the Court will have additional time to fully consider the case on the
merits.

Consistent with the foregoing, the Willeys have shown they are likely to suffer
irreparable harm as to application of the Student Privacy Policy as discussed; however not
with regards to the Preferred Names Policy.

E. Third Prong: Balance of Harms

The third factor concerns the balance of harms. See Awad, 670 F.3d at 1131. Under
the heightened standard of review applicable to injunctions that change the status quo, the
plaintiff must make a “strong showing” that the threatened injury outweighs any injury to
the defendants caused by granting an injunction. /d. Here, the Willeys have made a
sufficiently strong showing that any threatened injury to them as a result of the Student
Privacy Policy (as applied) outweighs any threatened injury to the District.

As the District points out, the Policy is in place—at least in part—to comply with
Title IX and avoid discrimination on the basis of sex. (ECF No. 16-2 at 2); see
“Enforcement of Title IX of the Education Amendments of 1972 With Respect to
Discrimination Based on Sexual Orientation and Gender Identity in Light of Bostock v.
Clayton County,” 85 Fed. Reg. 32637, 2021 WL 2531043 (June 22, 2021); see Bostock v.

Clayton Cnty. Ga., 140 S.Ct. 1731 (2020). Under the interpretation by the United States
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Department of Education, Bostock’s pronouncement that Title VII’s prohibition of
discrimination on “the basis of sex” encompasses discrimination based on sexual
orientation and gender identity also applies to Title [X’s parallel prohibition on sex
discrimination in federally funded education programs and activities. See 86 Fed. Reg. at
32638-—39. While a federal district court in Tennessee recently enjoined enforcement of the
Department of Education’s interpretation in twenty states, Wyoming is not among them.
See Tennessee v. U.S. Dep’t of Educ., 615 F.Supp.3d 807 (W.D. Tenn. 2022).

The Willeys hotly contest the District’s assertion it would run afoul of Title IX
absent the Policy. (ECF No. 21 at 5-6.) They argue Bostock is limited to Title VII
discrimination cases, and the executive orders signed by President Joseph R. Biden Jr. cited
by the District (ECF Nos. 16-5, 16-6) are of no consequence and only seek to “mislead and
misinform the court.” (ECF No. 21 at 5.)

The Willey’s argument completely ignores the Department of Education’s
regulations—which, like it or not, the District is bound to follow should it wish to continue
to receive federal funds. The Willeys also seem to discount that at least one circuit court of
appeals has already explicitly held Bostock’s holding applies equally to Title IX. See
Grimm, 972 F.3d at 616, 619. Even apart from Bostock, several courts have independently
concluded Title IX prohibits discrimination based on gender identity or significantly
adopted Bostock’s reasoning without explicitly reaching a conclusion. See Whitaker By
Whitaker v. Kenosha Unified Sch. Dist. No. I Bd. of Educ., 858 F.3d 1034, 1049-50 (7th
Cir. 2017), abrogated on other grounds, Ill. Republican Party v. Pritzker, 973 F.3d 760

(7th Cir. 2020); Dimas v. Pecos Indep. Sch. Dist. Bd. of Educ., No. 1:21-CV-978-K WR-
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JFR, 2022 WL 816501, at *4 (D.N.M. March 17, 2022) (concluding based on Bostock that
allegations of discrimination due to sexual orientation fall within Title IX’s broader
prohibitions against discrimination on the basis of sex); Whitman-Walker Clinic, Inc. v.
U.S. Dept. of Health & Humans Servs., 485 F.Supp.3d 1, 42 (D.D.C. 2020) (agency action
arbitrary and capricious for failing to consider Bostock in rulemaking involving Title IX).
Given these considerations, the Court refuses to ignore the possibility that enjoining the
Policy could subject the District to Title 1X sanctions.

When balancing the harms, as previously discussed the Court does not find the
Willeys are likely to be successful on the merits of any of their claims with regards to the
Preferred Names Policy. Although there exists a theoretical prospect of injury, such a
prospect is certainly neither likely nor imminent. Conversely, the Court considers the
potential Title IX implications to weigh heavily against issuing an injunction at this time.
A program found to be in violation of Title [X’s requirements faces a potential loss of
funding. See 20 U.S.C § 1682. Should the District theoretically run afoul of Title [X’s anti-
discrimination provisions, it would face the threat of substantial financial injury, much to
the detriment of all its students. The balance of harms therefore does not tip in favor of
issuing an injunction relating to the Preferred Names Policy.

However, the Student Privacy Policy—when applied as previously discussed—does
not raise the same Title IX concerns. Instead, refusing to disclose information to parents
(or lying to them) raises substantial constitutional and statutory concerns. Considering the
circumstances, the Willeys have made a strong showing that the threatened injury

outweighs any injury to the defendants caused by granting an injunction. As such, the Court

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finds the third factor favors issuing an injunction as to the Student Privacy Policy (as
applied), but not to the Preferred Names Policy.
F. Fourth Prong: Public Interest

The final prong requires the injunction not be against the public interest. Free the
Nipple-Fort Collins, 916 F.3d at 807. It is always in the public interest to prevent the
violation of a party’s constitutional rights. /d.

As explained above, the Student Privacy Policy may well violate the Willey’s
fundamental constitutional right to make decisions concerning the care, custody and
control of their children. See Troxel, 530 U.S. at 65-66. Because it is always in the public
interest to prevent a violation of a party’s constitutional rights, the Court finds the fourth
factor weighs in favor of an injunction in this regard.

The same cannot be said for the Preferred Names Policy. Absent a constitutional
concern, considering the potential financial impact on the public should the District run
afoul of Title IX and the basic human rights interests in avoiding discrimination of all
kinds, the Court finds the public interest factor weights against issuing an injunction.

CONCLUSION AND ORDER

As set forth above, absent a reasonable concern of physical harm or abuse, to the
extent the Student Privacy Policy would prevent a school district employee from

responding to a minor student’s parent inquiry or require the school district employee to
lie about the student’s request to be called by a different name or pronoun, this Court finds

that the factors weigh in support of a preliminary junction as to this aspect of the Policy

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only. The Court finds as to the Preferred Names Policy, a consideration of the factors does
not support the granting of a preliminary injunction and it will be denied.

IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Preliminary
Injunction (ECF No. 6) is hereby GRANTED IN PART. As to the Student Privacy Policy,
absent a reasonable concern of physical abuse or harm, the District is hereby enjoined from
precluding a school district employee from responding to any minor student’s parent’s
inquiry regarding their requested name or pronoun or from requiring a school district
employee to lie about a student’s request to be called by a different name or pronoun.

IT IS FURTHER ORDERED that Plaintiffs’ Motion for Preliminary Injunction
(ECF No. 6) is hereby DENIED as to all other aspects of the Policy.

Dated this 3a? tay of June, 2023.

Scott W. Skavdahl
United States District Judge

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