Ricard v. USD 475 Geary County, KS School Board et al

Filing 21

MEMORANDUM AND ORDER granting in part and denying in part #4 Motion for Preliminary Injunction. Signed by District Judge Holly L. Teeter on 5/9/2022. (md)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PAMELA RICARD,
Plaintiff,
v.

Case No. 5:22-cv-04015-HLT-GEB

USD 475 GEARY COUNTY, KS
SCHOOL BOARD, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff Pamela Ricard brings constitutional claims against Defendants USD 475 Geary
County, KS School Board; school board members Ron Johnson, Kristy Haden, Anwar Khoury,
Jim Schmidt, Beth Hudson, Mark Hatcher, Jason Butler; Geary County Superintendent Reginald
Eggleston; and Fort Riley Middle School Principal Kathleen Brennan (“the District”).1 Doc. 1.
These claims stem from Plaintiff’s opposition to the District’s policies that (1) require her to refer
to students by preferred first name and pronouns (“Preferred Names and Pronouns Policy”) and
(2) prohibit her from referring to a student by the student’s preferred names and pronouns in her
communications with the student’s parents unless the student requests the administration or
counselor to do so (“Communication with Parents Policy”).
Plaintiff moves for a preliminary injunction on her free speech, free exercise, and due
process claims. Doc. 5. The Court received evidence and heard arguments at the May 6, 2022
hearing. Because the District affirmatively stated that Plaintiff’s current practice would not be
deemed a violation of the Preferred Names and Pronouns Policy, the Court finds that Plaintiff is
1

The Court recognizes that Plaintiff has sued some defendants in a personal and official capacity. The parties make
no effort to analyze this nuance in briefing and in arguing the preliminary-injunction motion. And given the very
tight timelines in this case, the Court does not either. The Court refers generally to the District.

unlikely to experience irreparable harm from enforcement of that policy before the Court rules on
the merits in this case and denies a preliminary injunction on the Preferred Names and Pronouns
Policy on that basis. But the Court finds that Plaintiff has made a sufficient showing that her free
exercise claim merits a preliminary injunction of the Communication with Parents Policy, so the
Court enjoins Defendants in the manner set forth below.
I.

BACKGROUND
The Court makes the following factual findings based on the record. The Court includes

additional facts throughout the order as needed. Plaintiff has taught in the District since 2005.
Doc. 1 ¶ 1. Plaintiff is a Christian who believes that God immutably creates each person as male
or female; these two distinct, complementary sexes reflect the image of God; and rejection of one’s
biological sex is a rejection of the image of God within that person. Id. ¶¶ 84, 86. Additionally,
she believes that there are only two anatomical sexes except in very rare scientifically
demonstrable medical circumstances. Id. ¶ 79. Plaintiff also believes that the Bible prohibits
dishonesty and lying. See id. ¶ 88. Plaintiff further believes that referring to children with pronouns
inconsistent with biological sex is harmful because it is untrue. Id. ¶ 89. And Plaintiff believes that
parents have a fundamental right to control the upbringing and education of their children. Id. ¶ 74.
Plaintiff taught Math Strategies for sixth, seventh, and eighth grade students at Fort Riley
Middle School during the 2020-21 school year. Id. ¶ 95. There were two students in her class that
school year who were biological females and enrolled in the District’s record system (e.g.,
Skyward) under their legal first and last names and their biological sexes. Id. ¶¶ 96-97. Both
students requested to go by names that were different than their legal names and by pronouns
inconsistent with their biological sex.

2

Plaintiff was suspended and disciplined for not using one student’s preferred name and
because both students felt discriminated against based on Plaintiff not using the preferred name.
Plaintiff returned from her suspension on April 15, 2021. Id. ¶ 134. Then-Principal Shannon Molt
gave Plaintiff a formal written reprimand for violating three board policies. Id. These policies did
not have any specific guidance for handling a social transition for transgender students. See Doc.
1-4. But Plaintiff was nevertheless found to have violated those policies because her behavior was
“against the guidance provided by building leadership via email on March 31, 2021 and the
building’s weekly newsletter on April 4, 2021.” Id. at 4.
Six days later, Molt emailed Fort Riley Middle School staff diversity training on gender
identity, gender expression, and guidance on “Use of Preferred Names and Pronouns.” See Doc. 1
¶ 139; see also Doc. 1-6; Doc. 1-7. Several months later, in September 2021, the board formally
amended its policies such that “[s]tudents will be called by their preferred name and pronouns”
(i.e., the Preferred Names and Pronouns Policy). Doc. 1-18 at 5. On October 8, 2021, Defendant
Brennan informed teachers that Defendant Eggleston had emailed parents and guardians the
previous day to tell them that students would be referred to by their preferred name and pronouns,
but the District would “not communicate this information to parents unless the student requests
the administration or counselor to do so, per Federal FERPA Guidance” (i.e., the Communication
with Parents Policy). Doc. 1-16 at 2.2,3

2

Plaintiff unsuccessfully appealed the disciplinary action to the superintendent and the Board. See Doc. 1 ¶¶ 138149, 154-174, 183-87. The Board also rejected Plaintiff’s religious accommodation request. Id. ¶¶ 150, 184.

3

The parties have heavily litigated whether certain district directives are a “policy,” “guidance,” or
“implementation” material. Form does not matter. See Ashaheed v. Currington, 7 F.4th 1236, 1243 (10th Cir.
2021) (“[T]he First Amendment applies to exercises of executive authority no less than it does to the passage of
legislation.” (citation omitted)). What matters is what the governmental rule is, and whether Plaintiff is entitled
to preliminarily enjoin that rule pending judgment on the merits.

3

Plaintiff currently has two new transgender students in her class. One student told Plaintiff
of a preferred name and preferred pronouns in fall 2021 and the other informed Plaintiff in March
2022. Plaintiff refers to both students by their preferred first names, but she avoids using their
preferred pronouns to be consistent with her religious beliefs. Plaintiff does not generally use
pronouns in class for any student and avoids the use of pronouns. But she does occasionally use
pronouns when referring to students in class. Plaintiff has had to email one of the transgender
student’s parents regarding that student’s performance in school. Because the student has not
authorized the district to disclose the student’s transgender status to the student’s parents, Plaintiff
used the student’s legal name and biological pronouns in the email. Plaintiff believes that
addressing students one way at school and a different way when speaking to their parents is
dishonest. Being dishonest violates her sincere religious beliefs.
II.

STANDARD
To obtain a preliminary injunction, the movant must show that she is (1) substantially likely

to succeed on the merits, (2) will suffer irreparable injury if the injunction is denied, (3) her
threatened injury outweighs the injury the opposing party will suffer under the injunction, and (4)
the injunction would not be adverse to the public interest. State v. U.S. Env’t Prot. Agency, 989
F.3d 874, 883 (10th Cir. 2021) (citations omitted). If a movant is seeking a disfavored injunction,
she faces a higher standard. Id. Preliminary injunctions are disfavored when the injunction alters
the status quo, constitutes a mandatory injunction, or gives the movant all the relief that she would
recover at trial. Id. at 883-84. Disfavored injunctions require a strong showing on the likelihood
of success and balance of harms elements. Id. at 884.

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III.

ANALYSIS
Plaintiff contends the Preferred Names and Pronouns Policy and the Communication with

Parents Policy violate her free speech, free exercise of religion, and due process rights. The Court
analyzes each below.
A.

Preferred Names and Pronouns Policy

As noted above, the District’s Preferred Names and Pronouns Policy states: “Students will
be called by their preferred name and pronouns.” Doc. 1-18 at 5. Plaintiff argues this directive
violates both her freedom of speech and free exercise rights under the First Amendment and her
due process rights under the Fourteenth Amendment.
While the directive appears mandatory and without exception, the District represented at
the hearing that: (1) an employee is not required to use preferred pronouns and may refer to
students only by their preferred first name, provided the employee elects not to use pronouns for
any student; and (2) inadvertent or unintentional use of pronouns to refer to some students, where
an employee’s standard practice is to refer to all students only by preferred first name, will not
transform the employee’s standard practice into a policy violation.4
Plaintiff testified at the hearing that she has been and is willing to continue referring to all
students by their preferred first names (albeit, not their preferred pronouns). The District’s counsel
indicated that this practice would not violate the District’s policy provided any occasional use of
pronouns by Plaintiff, despite her default practice of referring to students by their preferred first

4

There appear to be numerous other exceptions and caveats to this policy. For example, the District itself refers to
a student by the student’s legal name, even when the student has requested to be referred to by a preferred name,
in official records; as a login credential for Skyward; for the student’s email address; and in yearbooks. Further,
coaches and gym teachers are apparently allowed to use last names to refer to students in lieu of preferred names
and pronouns because the use of last names is more convenient in a sports setting. And District employees are
not required to use preferred names and pronouns when employees are speaking about a student outside the
student’s presence.

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name, was inadvertent or unintentional. Given the parties’ apparent agreement that Plaintiff’s
present practice is acceptable to both, the Court finds Plaintiff is unlikely to experience any
irreparable harm from this policy before the Court rules on the merits in the ordinary course of this
case. See State, 989 F.3d at 884. Therefore, the Court will deny injunctive relief at this time and
without prejudice to Plaintiff’s ability to seek preliminary injunctive relief should circumstances
change.
In denying preliminary injunctive relief regarding the Preferred Names and Pronouns
Policy, the Court specifically relies on statements made by the District that Plaintiff’s current
practice is not subject to discipline. The Court is not making any ruling on the merits of Plaintiff’s
free speech, free exercise, and due process claims as it pertains to the Preferred Names and
Pronouns Policy. These claims remain live given Plaintiff’s requests for a permanent injunction,
declaratory judgment, damages, and attorney fees. The Court will resolve these merits questions
in the ordinary course of the litigation.
B.

Communication with Parents Policy

While the parties may have reached détente regarding the Preferred Names and Pronouns
Policy, the parties remain very much at odds over the Communication with Parents Policy and the
potential for disciplinary action should Plaintiff violate it. This policy prohibits employees from
revealing to parents that a student has requested use of a preferred name or different set of pronouns
at school “unless the student requests the administration or a counselor to do so, per Federal
FERPA guidance.” Doc. 1-16 at 2. In application, the policy prohibits teachers not only from
initiating communication with parents for the express purpose of disclosing preferred names and
pronouns, but it also prohibits teachers from revealing preferred names and pronouns as part of a

6

communication with parents about an unrelated matter, such as grades or attendance. It is this latter
application of the policy from which Plaintiff seeks relief.5
Like her challenge to the Preferred Names and Pronouns Policy, Plaintiff contends the
Communication with Parents Policy violates her free speech and free exercise rights under the
First Amendment, and her due process rights under the Fourteenth Amendment. The Court finds
that Plaintiff is entitled to a preliminary injunction based on her free exercise rights. Therefore, the
Court declines to address Plaintiff’s free speech and due process arguments at this time; it will
instead address those matters in the ordinary course of the litigation.
1. Likelihood of Success
The free exercise clause of the First Amendment states, in pertinent part, that “Congress
shall make no law . . . prohibiting the free exercise [of religion].” U.S. Const. amend. I. While the
First Amendment by its terms applies only to Congress, it was incorporated by the Fourteenth
Amendment and now applies to state and local governments, including public school districts. See
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
The fundamental principle of the free exercise clause is that “government commit ‘itself to
religious tolerance.’” Meriwether v. Hartop, 992 F.3d 494, 512 (6th Cir. 2021) (citing Masterpiece
Cakeshop Ltd. v. Colo. Civ. Rts. Comm’n, 138 S. Ct. 1719, 1731 (2018)). Under this principle,
government laws and rules that burden religious exercise are “presumptively unconstitutional
unless they are both neutral and generally applicable.” Id. (citing Emp’t Div., Dept’ of Hum. Res.
of Or. v. Smith, 494 U.S. 872, 877-78 (1990)). A law “is not generally applicable if it ‘invite[s]’
the government to consider the particular reasons for a person’s conduct by providing ‘a

5

In other words, Plaintiff disclaims any plan to affirmatively reach out to parents for the purpose of telling them
that their child is using preferred names or pronouns.

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mechanism for individualized exemptions.’” Fulton v. City of Phila., Penn., 141 S. Ct. 1868, 1877
(2021) (alteration in original) (citations omitted). “A law also lacks general applicability if it
prohibits religious conduct while permitting secular conduct that undermines the government’s
asserted interests in a similar way.” Id. (citation omitted).
In considering whether a law is neutral and generally applicable, this Court must “look
beyond the text and scrutinize the history, context, and application of a challenged law.” See
Hartop, 992 F.3d at 512 (citing Masterpiece, 138 S. Ct. at 1731; Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (discussing the neutrality prong)). If a rule
that burdens religious exercise is not neutral and generally applicable, it will survive constitutional
challenge only if the government can demonstrate “interests of the highest order” and that the rule
in question is “narrowly tailored” to achieve those interests. Fulton, 141 S. Ct. at 1881 (citation
omitted).
Here, Plaintiff demonstrates that the Communication with Parents Policy burdens her
exercise of religion. Plaintiff has testified that she is a Christian and believes the Bible prohibits
dishonesty and lying. She believes it is a form of dishonesty to converse with parents of a child
using one name and set of pronouns when the child is using and being referred to at school by a
different name and pronouns, unbeknownst to the parents. The Court finds Plaintiff’s testimony
concerning her religious beliefs to be credible and subjectively sincere. See City of Hialeah, 508
U.S. at 531 (“[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to
others in order to merit First Amendment Protection.” (internal quotations and citation omitted)).
Plaintiff has also demonstrated that, as part of her job, she regularly communicates with
parents, whether by email or in person. In fact, she has had to communicate in writing with the
parents of a transgender student earlier this year, and it is highly likely she will further

8

communicate with transgender students’ parents before the end of the academic year. Neither of
Plaintiff’s transgender students have authorized the District to disclose their preferred names and
pronouns to their parents. Plaintiff would face the Hobbesian choice of complying with the
District’s policy and violating her religious beliefs, or abiding by her religious beliefs and facing
discipline.
The District counters that its policy does not require Plaintiff to use any student’s name or
pronouns in conversations with parents—it merely prohibits Plaintiff from revealing to a student’s
parents a preferred name or pronouns the student is using at school if the student has not authorized
the parents to know. Thus, argues the District, Plaintiff can simply refer to students in conversation
with parents as “your child” or “your student,” never referring to the child by name or pronoun.
But Plaintiff has testified to her belief that having a conversation with parents about a child, and
not disclosing the name and pronouns used at school, is itself a form of “conceal[ment]”6—a
material omission if you will—given Plaintiff’s belief that parents have a fundamental right to
control the upbringing of their children. Moreover, it is simply unrealistic to suppose that a teacher
can communicate with parents about their child and never refer to the child by name or pronoun.
Such a system would be “impossible to comply with,” and when Plaintiff “slipped up,” she could
face discipline. See Hartop, 992 F.3d at 517. This Court agrees that Plaintiff’s religious rights “do
not hinge on such a precarious balance.” Id. Therefore, the Court finds Plaintiff has demonstrated

6

Plaintiff’s subjective perception that this is “conceal[ment]” is not fanciful. The District grants parents access to
its Skyward system. When a parent logs in, Skyward displays certain information about their child, including the
child’s legal name as reflected on District records and any preferred name the parent has disclosed to the District.
The Skyward database also contains preferred names and pronouns that students are using at school but that
parents may be unaware of. Although the District’s administrators and teachers can see these preferred names and
pronouns when they login into Skyward, this data is not populated and visible in the version of Skyward that
parents are granted access to.

9

continued application of the Communication with Parents Policy to her burdens her religious
exercise.
Because the Communication with Parents Policy burdens Plaintiff’s religious rights, the
Court must determine whether the Communication with Parents Policy is neutral and generally
applicable. The Court concludes the policy is not generally applicable because the District has
created multiple exceptions that either necessitate consideration of the putative violator’s intent or
the District has exempted conduct for secular reasons but is unwilling to exempt Plaintiff for
religious reasons. See Fulton, 141 S. Ct. at 1877.
First, testimony at the hearing established that at least a “couple” of other District
employees had inadvertently disclosed to parents the preferred name or pronouns of children who
had not authorized the District to disclose this information to parents. The District stated that such
persons were not disciplined for violating the policy despite the policy’s language drawing no
distinction between unintentional or purposeful violations. Thus, in the District’s practice, to
determine whether the policy has been violated by a particular disclosure, the District must
determine whether the putative violator intended to violate the policy or not.
Second, while the policy by its terms would prohibit any disclosure of a child’s preferred
name and pronouns to parents absent a child’s permission, the District admitted at the hearing that
if parents requested copies of education records that included information concerning preferred
names and preferred pronouns, the District would disclose the information to parents without a
child’s permission because the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C.
§ 1232g; 34 C.F.R. Part 99, requires it. Thus, the District is willing to make an exception for the
secular purpose of complying with federal law, but not religious reasons.

10

Third, at the hearing, the Court asked what the District would expect a teacher to do if,
during a conversation with parents, parents specifically asked the teacher if their child was being
addressed at school by a preferred name or pronouns. The District’s counsel indicated that such a
teacher should refer the parents to an administrator and the administrator would then answer the
question and disclose the requested information in a subsequent conversation or meeting.7 But the
policy does not facially carve out administrators from its scope. Thus, the District has created
another exemption in practice for administrators to disclose information when necessary for the
secular purpose of responding to a parent’s direct8 question, but again is unwilling to grant an
exemption for religious purposes.
Because the Communication with Parents Policy is not generally applicable, the District
has the burden to demonstrate the policy is justified by “interests of the highest order”—a socalled, “compelling” interest—and that the policy in question is “narrowly tailored” to achieve
those interests. Fulton, 141 S. Ct. at 1881; Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 429-30 (2006) (government bears the burden to satisfy strict scrutiny even
at the preliminary injunction phase).

7

As explained by Fulton, the Court must consider whether the secular exemption undermines the District’s asserted
interests in a similar way. As discussed below, the District told parents the policy was adopted for the purpose of
complying with FERPA. But, as also discussed below, FERPA does not restrict parental access to student records;
to the contrary, it requires a school district to provide education records to parents whether a child wants the
records disclosed or not. Thus, allowing an administrator to disclose to parents because they asked is no less a
violation of the District’s flawed understanding of FERPA than if the District allowed a teacher to disclose for
religious reasons. The District later articulated it did not want preferred name and pronoun information disclosed
because it is not the District’s “place” to “out” students to parents who might disagree with the child’s desire to
go by a preferred name or pronoun. This stated interest is undermined just as much by an administrator disclosing
the information to parents who ask, as it is by a teacher doing so when necessary to avoid a religious conflict.

8

Of course, some parents may be totally ignorant of the fact that their minor child is being called by a different
name and pronouns at school, in which case they would never know to ask for education records. Under the
District’s practice, it is only those parents who affirmatively ask the right question who would receive this
information. This seems rather inconsistent with the District’s stated position that parents are “full partners in
their child’s education.”

11

When operating under a strict scrutiny standard, the Court must consider the genuine
interest that the District believed supported the policy when it adopted the policy. See Yellowbear
v. Lampert, 741 F.3d 48, 58-59 (10th Cir. 2014); see also Fox v. Washington, 949 F.3d 270, 283
(6th Cir. 2020) (“[B]ecause the government’s asserted interest must be genuine, not hypothesized
or invented post hoc in response to litigation, [the government] will be limited to raising
justifications it cited at the time it made the decision” (internal citations and quotations omitted)).
To that point, the policy was announced by the District’s Superintendent, Dr. Reginald
Eggleston in an email dated October 7, 2021, and sent to all parents and guardians. That email
stated, in pertinent part, “USD 475 will not communicate [preferred names and pronouns] to
parents unless the student requests the administration or counselor to do so, per FERPA
guidelines.” (emphasis added). Thus, the District told parents that the reason for its policy was to
comply with FERPA. There is no reason to believe the District told parents one thing, while having
a hidden, subjective motivation it did not disclose. Therefore, the Court accepts the October 7,
2021 email as an accurate explanation of the District’s contemporaneous justification for adopting
the policy.
The problem for the District is that FERPA does not prohibit the District from
communicating with parents about their minor child’s preferred name and pronouns. To the
contrary, FERPA is a law that specifically empowers parents to receive information about their
minor students; it mandates the District to make education records9 available to parents upon
request—whether the child wants their parents to have the records or not. See 34 C.F.R. § 99.10(a)

9

Under FERPA, an education record is a record that is “directly related” to a student and that is “maintained” by a
school or party “acting for” the school. 34 C.F.R. § 99.3. Evidence at the hearing established that the District
maintains information about a student’s preferred name and pronouns in Skyward and, for some students, in a
binder stored in the registrar’s office. It also maintains such information in emails sent and retained by the
counselor and completed forms that the District previously required students to fill out. All these documents seem
to be education records under FERPA.

12

(“Except as limited under § 99.12, a parent or eligible student must be given the opportunity to
inspect and review the student’s education records” (emphasis added)).10 And FERPA does not
exempt from its disclosure obligation education records that deal with preferred names and
pronouns. Thus, the District’s contemporaneous justification for adopting the policy is predicated
on an erroneous understanding of the law. And the District’s statement to parents that “FERPA
guidelines” prevented the District from disclosing preferred name and pronoun information
without a child’s permission, was misleading. The District could not have a legitimate, compelling
interest in withholding information based on FERPA when FERPA in fact required the District to
disclose the very information at issue—at least to the extent the information was contained in an
education record.
Even if the Court were to consider the post hoc explanation the District has given in the
context of this litigation, the Court still concludes that the District has failed to establish the
Communication with Parents Policy is supported by a compelling interest. Specifically, at the
hearing, the District’s administrator took the position it was not the District’s place to “out” a
student to their “parents.” And the District’s counsel argued that “if the home life is such that the
—the student doesn’t want to be out to their parents, it’s not our job to do it.”
But as noted above, federal policy as evidenced by FERPA is that parents do have a right
of access to information held by the school about their minor children. Moreover, even if FERPA
did not mandate that schools make education records available to parents who ask for them, the
fact that it is not the school’s duty to disclose information to parents does not mean the school has

10

See generally U.S. Dep’t of Educ. Student Priv. Pol’y Off., A Parent’s Guide to the Family Educational Rights
and Privacy Act (2021), https://studentprivacy.ed.gov/resources/ferpa-general-guidance-parents.

13

a compelling interest in directing teachers to withhold or conceal such information and punishing
teachers if they violate the policy.
Moreover, as the District conceded at the hearing, parents in the United States have a
constitutional right to control the upbringing of their children. See, e.g., Stanley v. Illinois, 405
U.S. 645, 651 (1972). This is not a trivial right—it is a fundamental one that is “perhaps the oldest
of the fundamental liberty interests” recognized by the Supreme Court. Troxel v. Granville, 530
U.S. 57, 65 (2000). It rests on a fundamental premise that a child is “not the mere creature of the
State,” id. (emphasis added) (citation omitted), and that parents—“those who nurture him and
direct his destiny”— “have the right, coupled with the high duty, to recognize and prepare him for
additional obligations,” id. (citation omitted). 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 a child’s identity,
personhood, and mental and emotional well-being such as their preferred name and pronouns.11
Presumably, the District may be concerned that some parents are unsupportive of their
child’s desire to be referred to by a name other than their legal name. Or the District may be
concerned that some parents will be unsupportive, if not contest, the use of pronouns for their child
that the parent views as discordant with a child’s biological sex. But this merely proves the point
that the District’s claimed interest is an impermissible one because it is intended to interfere with
the parents’ exercise of a constitutional right to raise their children as they see fit.12 And whether

11

Of course, Plaintiff does not have standing to assert constitutional claims on behalf of parents, nor does she
attempt to. But the fundamental rights that parents have are a valid consideration in determining whether the
District has established a legitimate, compelling interest in prohibiting Plaintiff from disclosing to parents the
preferred name and pronouns the child is using, while threatening Plaintiff with disciplinary sanctions if she
violates the policy.

12

Because it is illegitimate to conceal information from parents for the purpose of frustrating their ability to exercise
a fundamental right, there are real questions whether the District’s claimed interests in the Communication with

14

the District likes it or not, that constitutional right includes the right of a parent to have an opinion
and to have a say in what a minor child is called and by what pronouns they are referred.
The Court can envision that a school would have a compelling interest in refusing to
disclose information about preferred names or pronouns where there is a particularized and
substantiated concern that disclosure to a parent could lead to child abuse, neglect, or some other
illegal conduct. Indeed, at least in Kansas, were such a case to arise, a school would likely have to
report the matter to the Department for Children and Families. See generally K.S.A. § 38-2223.
But the District has not articulated such an interest here—either abstractly or in the case of the
specific students in Plaintiff’s class.13
Even if the District had articulated an interest in preventing abuse by a parent (that is, abuse
as the law defines it, and not simply as an administrator might subjectively perceive it), the
Communication with Parents Policy would not be narrowly tailored to achieve such an interest.
The policy is overinclusive because it prohibits the disclosure of preferred name and pronoun
information to parents without any assessment of whether disclosure would actually pose a risk.
Moreover, the policy would also be underinclusive insofar as it permits administrators to disclose
preferred name and pronoun information to parents simply if parents ask, and without any
determination whether such disclosure poses a risk to the child. See City of Hialeah, 508 U.S. at
546 (finding laws not narrowly tailored where they were “overbroad or underinclusive in
substantial respects”). An appropriately tailored policy would, instead, make an individualized
assessment whether there is a particularized and substantiated concern of real harm—as opposed

Parents Policy—broadly written as it is—would satisfy even the rational basis standard that would govern if the
rule were neutral and generally applicable.
13

To be clear, there is no evidence in the record that the transgender students in Plaintiff’s class are at risk of harm
from their parents.

15

to generalized concern of parental disagreement—and prohibit disclosure only in those limited
instances.
Because the Communication with Parents Policy substantially burden’s Plaintiff’s exercise
of religious rights, is not generally applicable, and fails both prongs of the strict scrutiny analysis,
the Court finds that Plaintiff has demonstrated a substantial likelihood of success on her free
exercise claim as it concerns this policy.
2. Irreparable Harm
The District argues that Plaintiff is not at serious risk for future irreparable injury. Any
employment discipline she could receive would be compensable with money damages and her
chances of being disciplined are low because she has not been disciplined this school year and
Plaintiff is not returning to work at Fort Riley Middle School next year. Plaintiff counters by
arguing that the District’s past practice shows that she can be disciplined within a few days.14
Additionally, Plaintiff has already not been able to follow her conscience with regards to parental
communications.
Any deprivation of any constitutional right is an irreparable injury. Free the Nipple-Fort
Collins v. City of Fort Collins, Colo., 916 F.3d 792, 806 (10th Cir. 2019). Here, the Court has
already determined that Plaintiff is likely to succeed on her free exercise claim on the
Communication with Parents Policy. And the Court also finds it reasonable that she would
communicate with the parent of one of the transgender students before the end of the academic
year. Although the short timeline and change in work next year does not obviate irreparable harm,
it is a reason for limiting the timeframe of the preliminary injunction. Thus, Plaintiff has
established irreparable injury.

14

Plaintiff was issued a notice of suspension one day after the April 2021 incidents.

16

3. Balance of Harms
The District argues that a preliminary injunction would significantly hinder the District’s
“obligations to protect young persons entrusted to its care.” Doc. 11 at 36. But “[w]hen a
constitutional right hangs in the balance, though, ‘even a temporary loss’ usually trumps any harm
to the defendant.” Free the Nipple, 916 F.3d at 806 (citation omitted). The Court recognizes that
the District is trying to create a stable learning environment for children. But the District fails to
articulate any specific, concrete harms sufficient to outweigh Plaintiff’s weighty interest in
preliminary relief. Therefore, the balance of harms favors Plaintiff.
4. Public Interest
It is “always in the public interest to prevent the violation of a party’s constitutional rights.”
Id. at 807. Because the Court finds that Plaintiff is likely to succeed on her free exercise claim for
the Communication with Parent Policy, this factor also favors Plaintiff. Thus, Plaintiff has made a
sufficient showing as to all four elements for a preliminary injunction against enforcement of this
policy.15 Because the Court holds for Plaintiff on her free exercise basis for a preliminary
injunction, it does not address Plaintiff’s other arguments for her other claims on this policy.
IV.

CONCLUSION
The Court has carefully analyzed the record and the law in the limited time afforded by

this case. And the Court realizes that this is a difficult and complex area of the law that continues
to develop. But based on the record before the Court, the Court denies a preliminary injunction as
15

The District argues that Plaintiff seeks a disfavored injunction. Plaintiff is not seeking a disfavored injunction.
Plaintiff is seeking a prohibitory injunction rather than a disfavored mandatory injunction because she seeks to
prohibit the District from taking adverse action against her for a violation of her constitutional rights. Plaintiff is
not seeking a disfavored injunction that grants her all the relief she’d receive after a trial on the merits either
because she could receive other relief (such as damages and attorneys’ fees). Finally, this injunction simply seeks
to preserve “the last peaceable uncontested status existing between the parties before the dispute developed.” Free
the Nipple, 916 F.3d at 798 n.3 (citation omitted). That peaceable status with regards to the Communication with
Parents Policy was prior to the policy’s implementation. So Plaintiff does not seek a disfavored preliminary
injunction that alters the status quo.

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it relates to the Preferred Names and Pronouns Policy but grants a limited preliminary injunction
on the Communication with Parents Policy because Plaintiff has shown the four necessary factors
for her free exercise rights.
THE COURT THEREFORE ORDERS that Plaintiff’s motion for a preliminary injunction
(Doc. 4) is GRANTED IN PART and DENIED IN PART. The Court denies a preliminary
injunction on the Preferred Names and Pronouns Policy based on statements made by the District
that Plaintiff’s current practice would not be deemed a policy violation.
THE COURT FURTHER ORDERS that Defendants are ENJOINED from disciplining
Plaintiff for referring to a student by the student’s preferred name and pronouns in her
communications with the student’s parents within the regular course of her duties. The Court relies
on Plaintiff’s statements that she does not intend to communicate with a parent for the sole purpose
of disclosing a student’s preferred name and pronouns. This injunction terminates on
May 18, 2022, or at the conclusion of Plaintiff’s contractual responsibilities to the District,
whichever is later.
IT IS SO ORDERED.
Dated: May 9, 2022

/s/ Holly L. Teeter
HOLLY L. TEETER
UNITED STATES DISTRICT JUDGE

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