HHS Pressures West Virginia To Implement Religious Exemptions from Compulsory School Vaccination Law

 As reported by Med Page Today, the Department of Health and Human Services is pressuring the state of West Virginia to recognize religious exemptions from the state's compulsory public school vaccination requirements. In January of this year, West Virginia Governor Patrick Morrisey issued an Executive Order (full text) instructing state officials to create a procedure for parents to obtain religious or conscience exemptions, taking the position that this is required by West Virginia's Equal Protection for Religion Act. The compulsory immunization law only provides for medical exemptions, and legislative attempts to amend it have failed. Last week, the federal Health and Human Services Department took steps to support the Governor's position. In a letter dated Aug. 21, 2025 (full text) directed to West Virginia Health Departments participating in the federal Vaccines for Children Program (VCP), the HHS Office of Civil Rights said in part:

Providers participating in the VCP must comply “with applicable State law, including any such law relating to any religious or other exemption.” By specifically mandating that a State’s plan for administering Medicaid must respect State laws regarding religious exemptions, Congress recognized the importance of Americans’ religious convictions regarding vaccines and laws protecting such....

On January 14, 2025, West Virginia Governor Patrick Morrisey issued Executive Order 7-25.... The Governor’s interpretation of EPRA was recently affirmed by Judge Froble of the Circuit Court of Raleigh County...

West Virginia is a participant in the VCP6 and receives $1.37 billion from the Centers for Medicare & Medicaid Services each year as the federal Medicaid contribution. Therefore, West Virginia is obligated to ensure that its VCP providers comply with applicable state laws like EPRA, which requires recognition of religious exemptions from West Virginia’s Compulsory Vaccination Law. 

On Aug. 25, HHS Secretary Robert F. Kennedy, Jr. posted a message on X urging the state legislature to support the Governor's position, and saying in part:

...  At @HHSgov, we will enforce conscience protections and defend every family’s right to make informed health decisions.

Ban on Faith Statements by Colleges Participating in Program for High Schoolers Violates Free Exercise Clause

Loe v. Jett, (D MN, Aug. 22, 2025), is a challenge to a 2023 Amendment to Minnesota's Post Secondary Education Option (PSEO) statute. The statute allows high school students to enroll in nonsectarian college courses in colleges in the state. The state reimburses colleges for the credits earned by high schoolers. The challenged amendment disqualifies colleges that require faith statements from PSEO students, or which discriminate in admission of PSEO students on the basis of race, creed, ethnicity, disability, gender, or sexual orientation or religious beliefs or affiliations. The court held that the Faith Statement ban violates the 1st Amendment's Free Exercise Clause, saying in part:

[University of] Northwestern requires PSEO applicants to agree to a Declaration of Christian Community, by which applicants attest to “honor Christ,” “seek Christ‐centered community,” and “stand together against all that the Bible clearly condemns.”... Such an admissions requirement is facially proscribed by the Faith Statement Ban. Now, consider a hypothetical secular private college that participates in the PSEO program. If that secular school required that all PSEO applicants attest to “honor reason,” “seek reason‐centered community,” and “stand together against all that rationalism clearly condemns,” such an admissions requirement would seemingly not be proscribed by the Faith Statement Ban.  

The only difference between the two statement requirements is that Northwestern’s is of a religious—and not a secular—nature. Such a distinction on the face of the Faith Statement Ban is not neutral to religion, and thus triggers strict scrutiny....

In sum, the Faith Statement Ban is unconstitutional on its face under the Free Exercise Clause of the First Amendment of the United States Constitution because it burdens religious exercise, is not neutral and generally applicable, and is not narrowly tailored to achieve MDE’s compelling interest. Necessarily, this means that the Faith Statement Ban is also unconstitutional under the Freedom of Conscience Clause of Article One, Section Sixteen of the Minnesota Constitution. ...

The court also held that the Amendment's nondiscrimination provision is inseparable from the Statement Ban, so that it too must be struck down. It also rejected the Department of Education's counterclaims against the religious schools that were among the plaintiffs.

MPR News reports on the decision. [Thanks to Scott Mange for the lead.]

School Counselor's Office Display of Anti-Trans Books Is Permissible Only When No Students Are in His Office

In Theis v. Intermountain Education Service Board of Directors, (D ORA, Aug. 20, 2025), a social worker employed by the district to administer standardized tests individually to students sued claiming his constitutional rights were violated when the district found that his display of two particular books in his office violated the district's bias policy. The district found that the display of the books-- titled He is He and She is She--constituted a hostile expression toward a person because of their gender identity. Plaintiff was ordered to stop displaying the books. 

The court concluded that the district's policy did not violate plaintiff's free exercise rights, saying in part:

... Plaintiff has failed to show that Defendant’s Speech Policy is not neutral. There is no indication that the ESB Policy restricts any religious practices because of their religious motivations. Indeed, the policy explicitly seeks to prevent discrimination or harassment based on religion. And even if the ESB Policy adversely impacted religious practices, it is addressing the legitimate concern of ensuring an open and welcoming school environment for all students and employees.

Plaintiff also has not shown that Defendants were “hostile” towards his religious beliefs....

The court however agreed in part with plaintiff's free speech claim, saying that "only his display when no students are present is protected under the First Amendment." It explained: 

When no students were present in Plaintiff’s office, the message of the books would not be reasonably attributable to IMESD, and the display could not press Plaintiff’s views on impressionable or captive students.

School Officials Lack Standing To Sue Advocacy Group For Interfering With Their Duties

In Oklahoma State Department of Education v. Freedom From Religion Foundation, (ED OK, Aug. 13, 2025), Oklahoma education officials, in an interesting twist, sued to enjoin the advocacy organization Freedom From Religion Foundation from interfering with Plaintiffs’ statutory authority to govern Oklahoma’s public schools. FFRF had sent letters complaining about Bible reading and prayer in classrooms in one district and appointment of a football team chaplain in another. The court held that Plaintiffs lack standing to bring the suit, saying in part:

... [T]he Complaint does not explain how these letters have interfered with day-to-day operations in any real way.

Plaintiffs’ Complaint also vaguely alludes that Plaintiffs’ injury is the “chilling effect” caused by Defendant’s letters....

... [T]he Complaint does not allege that it has stopped executing its duties or ceased administration of Oklahoma’s public schools because of Defendant’s letters.2  Nor does the Complaint allege that the schools have ceased any policies or practices because of Defendant’s letters. 

For these reasons, the Court finds that Plaintiffs have failed to show an injury in fact.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Court Again Upholds Idaho Law on School Restroom Use by Transgender Students

In Sexuality and Gender Alliance v. Critchfield, (D ID, Aug. 7, 2025), an Idaho federal district court refused to issue a preliminary injunction to bar enforcement of an Idaho statute that requires transgender students in Idaho public schools to use restrooms, changing rooms, and showers that correspond to their biological sex. The 9th Circuit had previously upheld the denial of a broad preliminary injunction barring enforcement of the statute. In this suit, plaintiffs ask for a narrow injunction applicable only to restrooms at Boise High School. Plaintiffs argue that Boise High School has allowed transgender students to use bathrooms consistent with their gender identity for years, and allowing enforcement now would upset the status quo. The court said in part:

Separating restrooms by biological sex has been common for centuries.... And for good reason—there are biological differences between men and women.... Those biological differences are deserving of privacy and S.B. 1100’s segregation of restrooms based on sex is related to that interest. It is not the Court’s role to determine whether S.B. 1100 is a perfect policy; the Court must only address whether it is “substantially related” to the State of Idaho’s interest in protecting student’s privacy. Because S.B. 1100 is substantially related to the State’s legitimate interest in privacy, the Court finds SAGA is unlikely to succeed on its Equal Protection claim....

The Ninth Circuit... concluded: “SAGA failed to meet its burden to show that the State had clear notice at the time it accepted federal funding that Title IX prohibits segregated access to the facilities covered by S.B. 1100 on the basis of transgender status.”... This conclusion applies with equal force to SAGA’s as-applied challenge. Accordingly, the Court finds SAGA is unlikely to succeed on its Title IX claim.

ADF issued a press release announcing the decision.

7th Circuit: Jury Must Decide Whether Religious Accommodation Would Create Undue Hardship

In a Title VII case that has been in litigation for six years, in Kluge v. Brownsburg Community School Corp., (7th Cir., Aug. 5, 2025), the U.S. 7th Circuit Court of Appeals in a 2-1 decision reversed a district court's grant of summary judgment to the Brownsburg school district and sent the case back to the trial court for a jury to determine disputed facts. At issue is a music teacher's religious objections to following school policy that requires him to refer to transgender students by the names and pronouns that the students and their parents have asked that the school use. Initially the school accommodated the teacher by permitting him to address transgender students using only their last names. However, this led to student dissatisfaction and the accommodation was rescinded. The primary disputed facts are whether the accommodation created an "undue hardship" under the standard defined by the Supreme Court in its 2023 decision in Groff v. DeJoy, and whether the teacher's religious objections were sincere.  The majority said in part:

... [T]he record contains material factual disputes about whether the accommodation disrupted Brownsburg’s learning environment, precluding summary judgment to the school....

... [T]he complaints ...  all deal with the effects on the two students from Kluge’s use of the last-name-only practice. Nowhere do these documents support an inference that the students had a problem with Kluge’s religion or “the mere fact [of] an accommodation.”...  Instead, the complaints are leveled against the impacts on students and teachers, regardless of whether the accommodation was for religious or secular reasons. 

... [T]here is still a genuine material factual dispute about whether those complaints rose to an undue hardship on the school’s educational mission....

...  [A] genuine issue of material fact exists regarding Kluge’s sincerity. Even though a claimant’s sincerity does not hinge on whether he is “scrupulous in his [religious] observance,” it would still be premature to take this issue away from the jury on this question. ...

Judge Rovner filed a dissenting opinion, saying in part:

Until today, when confronted with a Title VII employment discrimination claim, we have deferred to an employer’s good-faith assessment of how an employee performed in the workplace..... Today the court invites a jury to do what we have always said a federal court will not do, which is to sit as a super-personnel department and second-guess the employer’s good-faith reasoning. In making employment decisions, ... employers will now have to consider not only how successfully an employee is performing his job as modified by a religious accommodation, but how a jury might second-guess its assessment in litigation years down the line. This is an untenable restraint on employers’ decision making. 

Today’s decision also burdens employers in a second important respect. Brownsburg successfully argued below that Kluge’s accommodation proved inconsistent with its mission, which is to provide a supportive learning environment for all of its students. Although the majority accepts this mission for present purposes, it also suggests that evidence of an employer’s mission must be limited to policies that are formally documented and adopted prior to any litigation. I think many employers will be surprised to learn that their ability to define their own missions is restricted to formal policies prepared long before an employment dispute arrives in court....

See prior related posting. ADF issued a press release announcing the decision.

Suit Challenges Oklahoma's Social Studies Standards

Suit was filed yesterday in the Oklahoma Supreme Court by public school teachers, parents, children and clergy asking the court to assume original jurisdiction and enjoin implementation of the State Board of Education's 2025 Academic Standards for Social Studies in grades K-8. The complaint (full text) in Randall v. Walters, (OK Sup. Ct., filed 7/1/2025), in addition to challenges to the procedures used to adopt the Standards, alleges that the Standards violate the religious freedom protections of the Oklahoma Constitution and statutes. The complaint alleges in part:

3. The 2025 Standards require stories from the Bible to be taught to first and second graders.  In accordance with a particular Christian view of the Bible, the 2025 Standards present certain biblical passages as historical fact to older children, contrary to a scholarly consensus that those passages do not accurately represent historical events.  As a whole, the 2025 Standards favor Christianity over all other religions, as they contain numerous references to Christianity but few to other faiths....

The complaint cites numerous specific portions of the Standards that require students to identify historical accounts from the Bible and understand the influence of the Bible and Christianity on the founding of the United States.

Americans United issued a press release announcing the filing of the lawsuit.

Suit Challenges Texas Requirement for 10 Commandments in Classrooms

Suit was filed last week in a Texas federal district court challenging the constitutionality of a recently enacted Texas law that requires the display of the Ten Commandments in every public-school classroom. The complaint (full text) in Alexander v. Morath, (ND TX, filed 6/24/2025) alleges in part:

Senate Bill 10 ... is not religiously neutral, as it mandates the display of a specific version of the Ten Commandments in every public-school classroom. This requirement inherently takes a theological stance on the correct content and meaning of the scripture....

The version mandated by S.B. 10 mostly aligns with a Protestant rendition but does not match any version found in the Jewish tradition, notably omitting key language and context from the Torah. Furthermore, it does not match the version followed by most Catholics, as it includes a prohibition against "graven images" which could be offensive given the role of iconography in the Catholic faith....

84. As a result of the Ten Commandments displays mandated by S.B. 10, Texas students—including minor-child Plaintiffs—will be unconstitutionally coerced into religious observance, veneration, and adoption of the state’s favored religious scripture, and they will be pressured to suppress their personal religious beliefs and practices, especially in school, to avoid the potential disfavor, reproach, and/or disapproval of school officials and/or their peers. ...

85. In addition, by mandating that one version of the Ten Commandments be displayed in public educational institutions and prescribing an official religious text for school children to venerate, S.B. 10 adopts an official position on religious matters, violating the Establishment Clause’s prohibition against taking sides in questions over theological doctrine and violating the “clearest command” of the Establishment Clause that “one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).

86. There is no longstanding historical practice or tradition of prominently and permanently displaying any version of the Ten Commandments in American public-school classrooms. On the contrary, the Supreme Court unambiguously held in Stone that such a practice is proscribed by the Constitution.

Texas Tribune reports on the lawsuit.

Supreme Court: Parents Have Free Exercise Right to Opt Children Out of Class Discussions That Undermine Religious Beliefs

 In Mahmoud v. Taylor, (Sup.Ct., June 27, 2025), the U.S. Supreme Court in a 6-3 decision upheld the granting of a preliminary injunction to parents who objected to a Maryland school district's removal of parents' right to opt their children out of class discussions involving LGBTQ+ inclusive” storybooks. The parents objected to exposing their children to discussions of sexuality and gender that were inconsistent with parents' religious beliefs. The majority, in an opinion authored by Justice Alito, said in part:

The practice of educating one’s children in one’s religious beliefs, like all religious acts and practices, receives a generous measure of protection from our Constitution....

In light of the record before us, we hold that the Board’s introduction of the “LGBTQ+-inclusive” storybooks—combined with its decision to withhold notice to parents and to forbid opt outs—substantially interferes with the religious development of their children and imposes the kind of burden on religious exercise that [Wisconsin v.] Yoder found unacceptable....

To start, we cannot accept the Board’s characterization of the “LGBTQ+-inclusive” instruction as mere “exposure to objectionable ideas” or as lessons in “mutual respect.”...

In any event, the Board and the dissent are mistaken when they rely extensively on the concept of “exposure.” The question in cases of this kind is whether the educational requirement or curriculum at issue would “substantially interfer[e] with the religious development” of the child or pose “a very real threat of undermining” the religious beliefs and practices the parent wishes to instill in the child.... Whether or not a requirement or curriculum could be characterized as “exposure” is not the touchstone for determining whether that line is crossed....

Under our precedents, the government is generally free to place incidental burdens on religious exercise so long as it does so pursuant to a neutral policy that is generally applicable....

 Here, the character of the burden requires us to proceed differently. When the burden imposed is of the same character as that imposed in Yoder, we need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny.  That much is clear from our decisions in Yoder and Smith....

Justice Thomas filed a concurring opinion, saying in part:

... [T]he Board’s response to parents’ unsuccessful attempts to opt their children out of the storybook curriculum conveys that parents’ religious views are not welcome in the “fully inclusive environment” that the Board purports to foster....

The curriculum itself also betrays an attempt to impose ideological conformity with specific views on sexuality and gender....

The Board easily could avoid sowing tension between its curriculum and parents’ First Amendment rights.  Most straightforwardly, rather than attempt to “weave the storybooks seamlessly into ELA lessons,” the Board could cabin its sexual- and gender-identity instruction to specific units.

Justice Sotomayor, joined by Justices Kagan and Jackson, filed a dissenting opinion, saying in part:

 Casting aside longstanding precedent, the Court invents a constitutional right to avoid exposure to “subtle” themes “contrary to the religious principles” that parents wish to instill in their children.... Exposing students to the “message” that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny..... That novel rule is squarely foreclosed by our precedent and offers no limiting principle.  Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not. 

The result will be chaos for this Nation’s public schools. Requiring schools to provide advance notice and the chance to opt out of every lesson plan or story time that might implicate a parent’s religious beliefs will impose impossible administrative burdens on schools....

... [N]ever, in the context of public schools or elsewhere, has this Court held that mere exposure to concepts inconsistent with one’s religious beliefs could give rise to a First Amendment claim....

The logic of the Court’s ruling will also apply to countless other topics, interactions, and activities that may conflict with a parent’s religious preferences. What of the parent who wants his child’s curriculum stripped of any mention of women working outside the home, sincerely averring that such activity conflicts with the family’s religious beliefs?  It blinks reality to suggest that the simple solution for schools is to create new discrete units of instruction to cover any set of material to which a parent objects....

SCOTUSblog reports on the decision.

Texas Enacts Requirement That Schools Offer Released-Time Programs

On June 20, Texas Governor Gregg Abbott signed SB 1049 (full text) which requires all public and charter schools to permit students to attend released-time religious classes for up to five hours per week. The student must assume responsibility for any school assignments issued during his attendance at religious classes. ADF issued a press release endorsing the new law.

Texas Enacts Law Requiring Ten Commandments In Every Classroom

The Texas legislature has passed, and on June 20 Governor Gregg Abbott signed, SB10 (full text) which requires that:

a public elementary or secondary school shall display in a conspicuous place in each classroom of the school adurable poster or framed copy of the Ten Commandments...

The law requires that a poster or framed copy at least 16x20 in size include only the text of the Ten Commandments set out in the law. It must be posted "in a size and typeface that is legible to a person with average vision from anywhere in the classroom...."

Texas Tribune reports on the new law. A similar Louisiana law was just found to be unconstitutional by the U.S. 5th Circuit Court of Appeals which also has jurisdiction over Texas. (See prior posting.)

5th Circuit Upholds Preliminary Injunction Against Louisiana's 10 Commandments In Classrooms Law

In Roake v. Brumley, (5th Cir., June 20, 2025), the U.S. 5th Circuit Court of Appeals affirmed a district court's grant of a preliminary injunction against enforcement of a Louisiana statute that requires public schools to display the Ten Commandments in every classroom. In a lengty opinion the appellate court found that plaintiffs had standing to challenge the statute and that plaintiffs had shown a substantial likelihood of succcess on the merits of their Establishment Clause claim.  The court said in part:

The precedents of the Supreme Court and this court establish that, in an Establishment Clause case, a plaintiff can generally satisfy the injury-infact element of standing when he experiences—or certainly will experience—unwanted exposure to government-sponsored religious displays or exercises in the course of his regular activities....

Although the Supreme Court set aside the Lemon test in Kennedy [v. Bremerton School District],...  Kennedy did not overrule Stone [v. Graham]. Kennedy does  not mention Stone or purport to overrule the decisions (other than Lemon) on which Stone relies, i.e., Schempp or Engel. Stone remains good law andtherefore controls....

An H.B. 71 display that meets the statute’s minimum requirements is materially identical to the displays challenged in Stone....

It is also unclear how H.B. 71 ensures that students in Louisiana public schools “understand and appreciate the foundational documents of [its] stateand  national government” when it makes displaying those “foundational” documents optional, and does not require that they also be printed in a large, easily readable font.... When the Ten Commandments must be posted prominently and legibly, while the other “contextual” materials need not be visible at all, the disparity lays bare the pretext....

... [T]he question before us is whether the permanent posting of the Ten Commandments in public school classrooms fits within, or is consistent with, a broader tradition of using the Ten Commandments in public education....

Plaintiffs presented the expert testimony of Dr. Steven Green, a religious and constitutional legal historian. Dr. Green testified that the public school system did not exist at the founding; rather, public education originated sometime around the late 1820s. Dr. Green also found no evidence that the Ten Commandments were permanently displayed in early American public schools. He testified that no state enacted a law allowing the display of the Ten Commandments in public schools until North Dakota did so in 1927, and that a court later stuck down the statute....

Judge Dennis filed a concurring opinion, saying in part:

I join the majority opinion in full. I write separately to offer two additional bases for affirming the district court’s judgment. First, the Plaintiffs have standing under settled Supreme Court precedents recognizing “offended observer” standing in Establishment Clause cases.... Second, Louisiana vastly overstates both the holding and reach of Kennedy v. Bremerton School District.... That decision did not undermine—much less overrule—Stone v. Graham.... Nor did it eliminate the component parts of Lemon v. Kurtzman....

Axios reports on the decision.

Iowa Enacts Law Allowing Released-Time Religious Instruction in Schools

On June 6, Iowa Governor Kim Reynolds signed a bill that gives students in public and accredited nonpublic schools the right to attend up to five hours per week of off-site released time religious instruction offered by private organizations. HF 870 (full text) provides that the students must agree to make up any school work that they do not complete while attending the religious classes. The new law also provides:

A child’s parent, guardian, or legal or actual custodian ... who alleges that a school district has violated this section may bring a civil action for injunctive relief and actual damages against the school district....

ADF issued a press release commenting on the new law.

Texas Passes 3 Bills Promoting Religion in Public Schools

In addition to the much-publicized Ten Commandments bill (see prior posting), the Texas legislature this week gave final passage to three other bills relating to religion in public schools:

S.B. 11 (full text) (legislative history) creates an elaborate structure that school districts may adopt to provide for a daily period of prayer and reading of the Bible or other religious text in each school. The daily ceremony is to be open to both students and employees but must be outside the hearing of those who are not participants. Also, it may not be a substitute for instructional time. To participate, a student's parent must sign a consent form that includes a waiver of a right to bring an Establishment Clause claim to challenge the prayer/ Bible reading policy. For an employee to participate in the daily sessions, they must sign a similar consent and waiver. Districts may not broadcast the prayer or Bible reading over the school's public address system.

SB 965 (full text) (legislative history) provides:

The right of an employee of a school district ... to engage in religious speech or prayer while on duty may not be infringed on by the district or school or another state governmental entity, unless the infringement is: (1) necessary to further a compelling state interest; and (2) narrowly tailored using the least restrictive means to achieve that compelling state interest.

SB 1049 (full text) (legislative history) requires all public schools to adopt policies that provide for students, at their parents' request, to attend for 1 to 5 hours per week off-premises released time programs operated by private entities and which offer religious instruction. Under the mandated policy, students remain responsible for any schoolwork issued during the student's absence.

Texas Legislature Passes Bill to Require Ten Commandments in Every Classroom

The Texas legislature this week gave final approval to SB10 (full text) which requires public schools to post a copy of the Ten Commandments in every classroom. The bill sets out the language of the version of the Ten Commandments that must be used. Schools must accept privately donated posters or framed copies that meet the requirements of the Act and may also use school district funds to buy posters or copies. Three civil liberties groups yesterday announced that they will sue Texas to challenge the new law once it is signed by Governor Gregg Abbott.

Teacher's Refusal to Use Student's Preferred Pronouns Justified Her Being Fired

 In Ramirez v. Oakland Unified School District, (ND CA, May 27, 2025), a California federal district court dismissed claims by a former kindergarten teacher that her free speech and free exercise rights were violated by her termination for refusing to refer to a student using male pronouns when the student appeared to be biologically female. Both school officials and the student's parents requested that male pronouns be used. Plaintiff contended that her Catholic faith does not allow her to refer to a person using pronouns that differ from the person’s “divinely-intended gender.” The court held that the school district itself was protected by sovereign immunity and that the individual plaintiffs have qualified immunity as to any action for damages. The court went on to hold that plaintiff also failed to adequately allege either a speech or religious exercise claim, saying in part:

The complaint fails to state a claim because the alleged speech was not protected. Ms. Ramirez agreed to serve as an elementary school teacher at a public school. To do the job, a teacher must address and interact with their students. As other courts have observed, while addressing students is not part of the curriculum itself, “it is difficult to imagine how a teacher could perform [their] teaching duties on any subject without a method by which to address individual students.”,,, 

The plaintiff’s main argument in opposition — that the above analysis does not apply because this case concerns compelled speech — fails both legally and factually. While the Supreme Court has suggested that compelled speech outside of an employee’s official duties warrants heightened protection, the government may insist that the employee deliver any lawful message when the speech is part of the employee’s official duties....

Here, the plaintiff does not contest that the district’s anti-discrimination policy is facially neutral. Instead, she contends that school officials were impermissibly hostile towards her religious beliefs when enforcing the policy. The argument fails because, even accepted as true, the well-pleaded facts do not plausibly allege hostility. 

Supreme Court Denies Cert. In School's Ban on Anti-Transgender T-Shirt

The U.S. Supreme Court yesterday denied review in L.M. v. Town of Middleborough, Massachusetts, (Sup. Ct., certiorari denied May 27, 2025).  In the case, the U.S. 1st Circuit Court of Appeals upheld middle school officials' decision that a student was in violation of school rules by wearing a T-shirt that proclaims: "There Are Only Two Genders." Justice Alito, joined by Justice Thomas filed an opinion dissenting from the denial of certiorari, saying in part:

The First Circuit held that the school did not violate L. M.’s free-speech rights. It held that the general prohibition against viewpoint-based censorship does not apply to public schools. And it employed a vague, permissive, and jargon-laden rule that departed from the standard this Court adopted in Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 (1969). 

The First Circuit’s decision calls out for our review....

I would grant the petition for two reasons. First, we should reaffirm the bedrock principle that a school may not engage in viewpoint discrimination when it regulates student speech. Tinker itself made that clear.... Curiously, however, the First Circuit declined to follow Tinker in this regard, instead cherry-picking which First Amendment principles it thought worthy of allowing through the schoolhouse gates.  By limiting the application of our viewpoint-discrimination cases, the decision below robs a great many students of that core First Amendment protection.

Second, we should also grant review to determine whether the First Circuit properly understood the rule adopted in Tinker regarding the suppression of student speech on the ground that it presents a risk of material disruption.

Justice Thomas also filed a separate brief dissenting opinion.  NBC News reports on the Court's action.

Suit Challenges School District's Speech Policy

Suit was filed this week in an Oregon federal district court by a clinical social worker employed by an Oregon school district challenging the application of the district's Speech Policy to his display on a shelf in his office of three books that reject notions of transgender identity. The complaint (full text) in Theis v.  InterMountain Education Service District Board of Directors, (D OR, filed 5/21/2025), alleges in part:

He is He and She is She ... explain how every child should embrace and love herself exactly as God made her to be....

... [A]n employee at one of Mr. Theis’ schools saw the covers of the Books and complained that they were “transphobic.” IMESD labeled the display as “a hostile expression of animus toward another person relating to their actual or perceived gender identity” and ordered Mr. Theis to remove them. IMESD then warned him that “further conduct of this nature” may result in discipline, including termination of his employment....

2. Plaintiff is ... a professing Christian who bases his beliefs on the Bible and strives to live out his Christian faith at work and in the community.

3. Plaintiff’s sincerely held religious beliefs govern his views about all aspects of life, including human nature, sex, and gender....

217. Defendants’ censorship of Plaintiff’s display of the Books while permitting books and other decorations with different messages on related topics is content and viewpoint discrimination, which is unconstitutional in any type of forum....

220. Defendants’ Speech Policy and practice also impose an unconstitutional heckler’s veto because they permit the restriction of protected employee expression merely because school officials deem an employee’s expression “offensive” to others....

249. Plaintiff’s sincerely held religious beliefs motivated him to display the Books in his office. 

250. Defendants substantially burdened Plaintiff’s religious exercise when they forced Plaintiff to choose between exercising his religious beliefs and being dismissed or violating his conscience.

ADF issued a press release announcing the filing of the lawsuit.

Jewish Teacher Claims Anti-Israel Position of Teachers' Union Violates His 1st Amendment Rights

Suit was filed this week in an Oregon federal district court against the Portland school system and the Portland teacher's union by a Jewish teacher who was born in Israel who contends that his First Amendment rights are violated by forcing him to be part of a bargaining unit represented by a union that promotes anti-Israel, pro-Palestinian positions and by the school becoming a one-sided forum for anti-Israel rhetoric. He also claims a hostile working environment has been created. Even though plaintiff chose not to become a dues-paying member of the teacher's union, under Oregon law the union remained his collective bargaining representative.  The complaint (full text) in Doe v. Portland Association of Teachers, (D OR, filed 5/19/2025) alleges in part:

63. [Palestinian] flags and other symbols were in common spaces such as hallways, the library, as well as shared classrooms. The placement was intentional so as to appear to be an expression of the community and school rather than any individual staff person.

64. These symbols ... cause severe emotional distress to Plaintiff because of his experiences growing up in Israel, including personal exposure to acts of terrorism committed to destroy the State of Israel, and because of his deeply held religious beliefs....

97. When Plaintiff reached out to PAT for support, PAT assigned him a union representative who publicly shared anti-Zionist views on social media, thus the Plaintiff did not receive fair or unbiased representation from PAT....

121. Oregon’s statutory requirement of exclusive representation, placing the Plaintiff in a bargaining unit exclusively represented by PAT, violates the Plaintiff’s free association by forcing him to associate with expression with which he disagrees, and which betrays his deeply held religious and moral beliefs....

127. Oregon’s exclusive representation laws compel Plaintiff ... to tacitly affirm beliefs that violate his deeply held religious beliefs and personal convictions as a condition of employment....

140. ... [C]urricula put forward in the District’s classrooms purports to define aspects of Plaintiff’s faith, which includes the belief in a Jewish homeland, in ways that are inconsistent with his beliefs, but that are consistent with the religious teachings of other faiths, including the beliefs of some Muslims.

141. The District allows displays of overtly anti-Israel messaging, including maps that fail to display the nation of Israel....

144. By these actions, the District prefers and promotes religious views and practices in violation of the Establishment Clause of the First Amendment,,,,

The Oregonian reports on the lawsuit.

West Virginia Governor Tells Schools to Provide Religious and Philosophical Exemptions from Vaccine Requirements

Last week, West Virginia Governor Patrick Morrisey released a letter (full text) addressed to parents, students and school officials reaffirming that his Executive Order 7-25 is still in effect. The Executive Order issued last January provides for religious and conscientious exemptions for students from compulsory school immunization requirements.  He based the Order on the provisions of the state's Equal Protection for Religion Act of 2023. The Governor's recent letter, issued in light of the fact that the state legislature has not taken action on the matter, sets out a procedure for parents to use in applying for a religious or philosophical exemption. The governor's office also issued a press release summarizing the letter. The Inter-Mountain reports on the Governor's action.