Marissa Darlingh V Adria Maddaleni
In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 23-1610
MARISSA DARLINGH,
Plaintiff-Appellant,
v.
ADRIA MADDALENI, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 22-CV-1355 — Stephen C. Dries, Magistrate Judge.
____________________
ARGUED DECEMBER 8, 2023 — DECIDED JULY 2, 2025
____________________
Before SYKES, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
SYKES, Chief Judge. Marissa Darlingh was employed as a
guidance counselor at an elementary school in the Milwau-
kee Public School District. In April 2022 she attended a rally
at the state capitol in Madison featuring “radical feminist”
critiques of the transgender-rights movement. There she
delivered an impromptu, profanity-laden speech denounc-
ing gender ideology and transgenderism and their impact on
2 No. 23-1610
children. Among other things, she identified herself as a
counselor in the Milwaukee Public Schools and vowed—in
expletive-punctuated terms—that “not a single” student at
her school “will ever, ever transition” on her watch.
After a video of Darlingh’s speech appeared on YouTube,
school officials opened an investigation and eventually fired
her for violating several employment policies, including
rules against abusive and intimidating language and bully-
ing. The termination letter also explained that Darlingh’s
speech impaired her ability to perform her role as a school
counselor, damaged the district’s reputation, and under-
mined its mission to provide an equitable and supportive
learning environment for all students.
Darlingh sued three school officials and the school board
alleging that she was unlawfully fired in retaliation for
exercising her First Amendment right to freedom of speech.
(She also raised a due-process claim but it has no bearing on
this appeal.) A magistrate judge, presiding with the parties’
consent, applied the Pickering balancing test, see Pickering v.
Board of Education of Township High School District 205, 391
U.S. 563 (1968), and concluded that the school district’s
interests as a public employer outweighed Darlingh’s speech
rights in these circumstances. The judge denied her request
for a preliminary injunction and dismissed the claim.
We affirm. Though Darlingh spoke on an issue of public
concern in a traditional free-speech setting—a right she did
not surrender when she accepted public employment—the
school district reasonably concluded that her speech was
incompatible with her role as a school counselor. It’s not
hard to see why: she made a strident public pledge to per-
form her counseling duties in an exceedingly rigid way that
No. 23-1610 3
conflicted with the school district’s obligation to ensure a
supportive educational environment and promote student
and parental trust. That took Darlingh’s speech outside the
scope of the First Amendment’s protection as applied in the
public-employment context.
I. Background
In March 2021 Marissa Darlingh began working as a
school counselor at the Allen-Field Elementary School in the
Milwaukee Public School District. In April 2022 a group of
self-described “radical feminists” held a multiday “Sisters 4
Sisters” gathering in Madison, Wisconsin, the state’s capital
city. Billed as a “weekend of radical feminist action, discus-
sion, community, and solidarity,” the event was aimed in
part at raising concerns about gender ideology and the
transgender movement’s effect on women’s rights.
The “Sisters 4 Sisters” gathering, which ran from April 22
to 24, served as a platform for discussions, workshops, and
speeches related to these topics. The main event was a rally
in front of the state capitol on Saturday, April 23. Darlingh
attended. The rally attracted both supporters and counter-
protestors. Signs and banners abounded; some were quite
crude and a few were threatening. The rally was raucous:
vulgarities flowed freely, there was a lot of yelling, and
emotions ran high.
Event organizers set up a designated spot at the rally for
people to deliver speeches. Dubbed the “speaker’s corner,”
the spot was located on the steps of the capitol building and
was outfitted with a broadcast system to amplify the speak-
ers. Anyone could address the crowd, and many people
delivered impromptu speeches.
4 No. 23-1610
Darlingh was one of them. She approached the micro-
phone and delivered the following spontaneous speech:
I didn’t plan on speaking and I’ve been
screaming a lot but my name is Marissa Dar-
lingh, I am an elementary school counselor in
Milwaukee Public Schools. And I oppose gen-
der ideology ever entering the walls of my
school building. On my dead fucking body will
my students be exposed to the harms of gender
identity ideology. Not a single one of my stu-
dents under my fucking watch will ever, ever
transition socially and sure as hell not medical-
ly. Absolutely not. I exist in this world to serve
children. I exist to protect children. I feel like
I’m disassociating right now because this is
very intense, very intense. I think someone else
is speaking through me right now, but fuck
transgenderism. Fuck it. Fuck transgenderism.
Fuck these people behind us who want chil-
dren to have unfettered access to hormones,
wrong-sex hormones, and surgery.
Darlingh’s speech was recorded and posted on YouTube.
On April 26 Ophelia King, the manager of counseling
services for the Milwaukee Public School District and Dar-
lingh’s direct supervisor, opened an investigation. Separate-
ly, on April 29 Darlingh received a letter from the Wisconsin
Department of Public Instruction notifying her that it was
investigating whether to revoke her state educator’s license
for “immoral conduct.” The letter cited her speech at the
rally in Madison. The Department gave her 30 days to
respond and offered her the option of surrendering her
No. 23-1610 5
license. On May 25 Darlingh’s attorneys responded on her
behalf, rejecting the Department’s “offer” and stating that
the threat to revoke Darlingh’s license based on her speech
at the rally violated her First Amendment right to freedom
of speech.
Darlingh’s counsel released the May 25 response to the
public, sparking considerable interest in the dispute among
local and national news media and commentators. Up to that
point, Darlingh performed her job without incident while
the school district’s investigation proceeded.
On June 1, the Milwaukee Journal Sentinel published an
article about Darlingh’s speech and the investigation by state
regulators. Darlingh had given an interview to the newspa-
per, and the article reported that she stood by her comments
in the speech. On June 2 Darlingh appeared on the Fox News
program The Ingraham Angle, a prime-time opinion show.
The host asked Darlingh, “[W]ould you change anything
about what you said or how you said it, now that the State is
coming after you?” Darlingh responded, “No, I wouldn’t.”
The next day a teacher at Darlingh’s school discussed the
Journal Sentinel article with a class of fifth graders, including
some who were scheduled for counseling sessions with
Darlingh later that day. The teacher, Raven Chappelle,
showed the class the Journal Sentinel article and told the
students that they “had a right not to see” Darlingh for
counseling services. Darlingh happened to be walking by
Chappelle’s classroom at that precise moment and saw the
newspaper article projected on the board. She entered the
classroom and confronted Chappelle, demanding to know
why she was talking about her.
6 No. 23-1610
The confrontation did not escalate. Darlingh quickly left
the classroom and told the principal what Chappelle had
done. The principal immediately intervened, admonished
Chappelle, and sent her home for the day. When Darlingh
asked the students in Chappelle’s class if they wanted to
proceed with their regularly scheduled counseling that day,
some said no. Later, as part of the school-district’s investiga-
tion, the principal collected statements from students who
were in Chappelle’s class that day. Most suggested that the
incident had little effect on them. Many reported not re-
membering or understanding the situation, but a few re-
called the episode in a way that cast a negative light on
Darlingh.
On June 9 Ophelia King—the school district’s manager of
counseling services—hand-delivered a letter to Darlingh
summoning her to a disciplinary conference over Zoom on
June 15. The letter identified several policies Darlingh was
alleged to have violated but was otherwise not specific.
Two days before the scheduled Zoom meeting, Darlingh
received an email from Therese Freiberg, the district’s
director of employee relations, instructing her not to report
to work the next day and advising her that a second, formal
disciplinary letter placing her on suspension would arrive
soon. The second letter arrived the next day and notified
Darlingh that she was suspended effective immediately and
would be paid for only the first three days of the suspension,
which coincided with the last scheduled workday of the
school year. Like the first letter, this one listed several poli-
cies that Darlingh was accused of violating but did not
explain how she violated them. The letter noted that a
formal disciplinary conference would be held in the fall of
No. 23-1610 7
the 2022–2023 school year. In the meantime, Darlingh was
forbidden to enter any district buildings or contact students,
parents, or staff. Darlingh also received a separate order
from Adria Maddaleni, the school district’s chief human-
resources officer, banning her from entering district proper-
ty.
The June 15 Zoom conference took place as scheduled.
Just minutes before the hearing, Darlingh and her lawyer
received a 126-page packet with 48 exhibits concerning
Darlingh’s speech at the rally and its aftermath—notably
videos of her speech and materials relating to her media
appearances, the Chappelle incident, complaints the district
had received about her speech from members of the public,
and other documents related to the investigation. The packet
also included copies of the relevant district policies and rules
and the American School Counselor’s Association’s profes-
sional standards for school counselors.
King and Freiberg attended the conference on behalf of
the school district, and Darlingh appeared with her counsel.
King went through each exhibit, giving Darlingh and her
attorney time to read each one, then moved to the next
without comment. When this process concluded, King gave
Darlingh a ten-minute recess to confer with counsel before
responding. Her attorney objected and requested an oppor-
tunity to respond in writing. King agreed and gave counsel a
two-week deadline to do so.
In her written response Darlingh explained that her
speech at the rally was intended to “express[] her concern
over some of the harms of gender identity ideology, in
particular the recent trend of providing children with unfet-
tered access to hormones—wrong-sex hormones—and
8 No. 23-1610
surgery.” She explained that when she said, “fuck transgen-
derism,” she was “referring to policies and ideologies that
she believes harm children, and not in any way referring to
transgender students or individuals.” She also said that she
“has and always will equally love, respect, and serve all
students under her care, including transgender-identifying
students.”
Darlingh’s response also directly addressed a point of
contention that had arisen from the story in the Journal
Sentinel. The article reported that she said she would not use
transgender students’ self-identified names or pronouns.
Darlingh asserted that the article was inaccurate and said
that she “would follow the parents’ lead” on how to address
their children. She explained that she had asked the news-
paper to correct the record, and it did so, but the clarification
was “buried” in an updated version of the article. Darlingh
also explained that when she spoke out against social and
medical transitioning in her rally speech, she was attempting
to communicate that “she will not be the cause of the stu-
dent’s transition—by promoting it, encouraging it, or initiat-
ing it.” She said that she was willing to follow district policy
and offered to meet with anyone in the district community
“to apologize directly and to listen to them and to how her
words affected them.” She expressed her “hope … to work
with the [d]istrict and any staff or students who were of-
fended by her speech to resolve this so that she and her
colleagues can get back to doing the jobs that they love.”
Darlingh’s response went unanswered for several
months. She remained on unpaid suspension through the
summer and into the start of the new school year. The
district finally responded on September 30 with a termina-
No. 23-1610 9
tion letter. Signed by Maddaleni, the chief human-resources
officer, the termination letter highlighted Darlingh’s use of
vulgar language and the fact that she began her speech by
identifying herself as a school counselor in the Milwaukee
Public Schools, which was “the lens in which [her] com-
ments were given and received.” The letter went on to say
that Darlingh’s speech violated district rules prohibiting the
use of threatening, intimidating, or abusive language; bully-
ing; or engaging in conduct that significantly detracted from
the district’s image or reputation. Additionally, the letter
explained that the speech violated district policies ensuring
equitable access to a supportive learning environment for all
students regardless of their “individual identities, back-
grounds, abilities, and experiences.”
Finally, the termination letter noted that Darlingh’s pub-
lic commitment to do everything in her power to prevent
any transgender student from transitioning violated the
district’s expectation that school counselors will “support
transgender and gender-nonconforming students and help
create a safe environment for them.” Darlingh’s speech, the
letter concluded, was therefore incompatible with the dis-
trict’s commitment “to providing a safe, inclusive, and
supportive learning environment for all students.” Darlingh
was fired effective immediately, making the formal discipli-
nary hearing unnecessary.
She responded with this suit under 42 U.S.C. § 1983
against Maddaleni, King, Freiberg, and the Milwaukee
Board of School Directors alleging that she was fired in
retaliation for exercising her First Amendment right to
freedom of speech. (She also raised a due-process claim
arising from her suspension and the ban on entering school
10 No. 23-1610
property. That claim has been stayed and is irrelevant here.)
A few weeks after filing suit, Darlingh moved for a prelimi-
nary injunction seeking reinstatement to her position. The
school district responded to the motion and separately
moved to dismiss the First Amendment claim.
The parties consented to proceed before a magistrate
judge. See 28 U.S.C. § 636(c). Applying the Supreme Court’s
balancing test for First Amendment free-speech claims in the
context of public employment, see Pickering, 391 U.S. at 568–
69, the judge concluded that the school district’s interests as
a public employer outweighed Darlingh’s free-speech rights.
He accordingly denied Darlingh’s motion for a preliminary
injunction and dismissed the First Amendment claim, setting
up this appeal. See 28 U.S.C. § 1292(a)(1).
II. Discussion
Orders granting or denying a preliminary injunction are
immediately appealable, see id., and are subject to a mixed
standard of review; this appeal, however, begins and ends at
the first step in the injunction framework, which raises only
a legal question. To win a preliminary injunction, Darlingh
had the burden to establish that her First Amendment claim
would likely succeed and that she would suffer irreparable
harm without preliminary relief; if she satisfied these
threshold requirements, she also needed to show that the
balance of equities tips in her favor and that an injunction
would be consistent with the public interest. Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
The first element in the injunction framework is often de-
cisive. Braam v. Carr, 37 F.4th 1269, 1272 (7th Cir. 2022). And
it is decisive here. Darlingh’s First Amendment claim arises
No. 23-1610 11
in the public-employment context and rests on allegations
that the school district fired her in retaliation for exercising
her free-speech rights. To prevail on this claim Darlingh had
to prove that (1) she “engaged in constitutionally protected
speech”; (2) she suffered a deprivation of a type that is
“likely to deter protected speech”; and (3) her “protected
speech was a motivating factor in the deprivation.” Harnish-
feger v. United States, 943 F.3d 1105, 1112 (7th Cir. 2019).
The second and third elements are not contested. There’s
no question that Darlingh was fired for what she said at the
“Sisters 4 Sisters” rally. The loss of her job is a significant
deprivation, likely to chill protected speech, and causation is
not in dispute. The claim comes down to whether Darlingh’s
speech was constitutionally protected. And that, as we’ll see,
turns on the application of Pickering balancing, which is a
question of law. Id. at 1113.
Legal issues in an injunction order are subject to de novo
review. Doe v. Univ. of S. Ind., 43 F.4th 784, 791 (7th Cir.
2022). We likewise review the judge’s dismissal decision de
novo. Kilborn v. Amiridis, 131 F.4th 550, 556 (7th Cir. 2025). So
our review of both aspects of the judge’s order merges into a
single dispositive legal question: Was Darlingh’s speech
constitutionally protected? If so, then the school district
violated her First Amendment rights by firing her for what
she said.
It’s well established that “public employees do not sur-
render all their First Amendment rights by reason of their
employment.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
“[T]he First Amendment protects a public employee’s right,
in certain circumstances, to speak as a citizen addressing
matters of public concern.” Id. At the same time, however,
12 No. 23-1610
“[g]overnment employers, like private employers, need a
significant degree of control over their employees’ words
and actions; without it, there would be little chance for the
efficient provision of public services.” Id. at 418.
The government therefore “has interests as an employer
in regulating the speech of its employees that differ signifi-
cantly from those it possesses in connection with regulation
of the speech of the citizenry in general.” Pickering, 391 U.S.
at 568. This principle rests on the “common sense realization
that government offices could not function if every employ-
ment decision became a constitutional matter.” Connick v.
Myers, 461 U.S. 138, 143 (1983).
The Supreme Court has distilled its decisions in Pickering
and Connick into a two-step framework for determining
whether a public employee’s speech is constitutionally
protected. First, the employee must establish that he “spoke
as a citizen on a matter of public concern.” Garcetti, 547 U.S.
at 418. If the employee makes this initial threshold showing,
“then the possibility of a First Amendment claim arises.” Id.
The second step asks “whether the government had an
adequate justification for treating the employee differently
from any other member of the public based on the govern-
ment’s needs as an employer.” Lane v. Franks, 573 U.S. 228,
242 (2014) (internal quotation marks omitted). To assess the
adequacy of the government’s justification for burdening an
employee’s speech, the Court has instructed us to balance
the interests of the employee, as a citizen, in commenting on
the issue of public concern against the interests of the gov-
ernment, as an employer, in the proper performance of its
public functions. Pickering, 391 U.S. at 568; see also Connick,
461 U.S. at 142.
No. 23-1610 13
Pickering balancing thus “reflects the importance of the
relationship between the speaker’s expressions and [his
public] employment.” Garcetti, 547 U.S. at 418. The govern-
ment “has broader discretion to restrict speech when it acts
in its role as employer, but the restrictions it imposes must
be directed at speech that has some potential to affect [its]
operations.” Id.
In the district court the school district contested the first
step of the Connick-Pickering framework—i.e., whether
Darlingh spoke as a citizen on a matter of public concern
when she delivered her speech at the rally in Madison. The
magistrate judge found for Darlingh on this point and the
school district has not challenged that ruling. It was wise not
to do so. Darlingh delivered her speech at a public rally in
front of the state capitol. She spoke on her own time—on a
Saturday—and in a traditional public setting for social,
political and cultural speech. The purpose of the rally was to
voice concerns about gender ideology and transgenderism,
so the event—and her speech—dealt with topics that are the
subject of current policy and social debate. Indeed, as the
Supreme Court has recently emphasized, the treatment
protocols for gender dysphoria are evolving and the scien-
tific, policy, and legal debates surrounding transgender
issues are profound and unsettled. United States v. Skrmetti,
605 U.S. ___, 2025 WL 1698785, at *14 (June 18, 2025). There
can be little doubt that Darlingh’s impromptu remarks at the
rally qualify as citizen speech on a matter of public concern.
When a public employee “speaks as a citizen addressing
a matter of public concern, the First Amendment requires a
delicate balancing of the competing interests surrounding
the speech and its consequences.” Garcetti, 547 U.S. at 423.
14 No. 23-1610
Our cases provide a nonexclusive list of seven factors that
may be relevant to Pickering balancing:
(1) whether the speech would create problems
in maintaining discipline or harmony among
co-workers; (2) whether the employment rela-
tionship is one in which personal loyalty and
confidence are necessary; (3) whether the
speech impeded the employee’s ability to per-
form her responsibilities; (4) the time, place,
and manner of the speech; (5) the context in
which the underlying dispute arose; (6) wheth-
er the matter was one on which debate was vi-
tal to informed decisionmaking; and
(7) whether the speaker should be regarded as
a member of the general public.
Hicks v. Ill. Dep’t of Corr., 109 F.4th 895, 901 (7th Cir. 2024)
(quoting Bonds v. Milwaukee Cnty., 207 F.3d 969, 981 (7th Cir.
2000)). Other circuits have similar lists. Compare McVey v.
Stacy, 157 F.3d 271, 278 (4th Cir. 1998) (listing nine factors),
with Bauer v. Sampson, 261 F.3d 775, 785 (9th Cir. 2001)
(listing five factors).
Though we’ve frequently cited these seven factors, we’ve
also said that it’s not necessary to consider each one,
Harnishfeger, 943 F.3d at 1115, and “merely count[ing] how
many factors line up on each side” is not particularly in-
formative, Volkman v. Ryker, 736 F.3d 1084, 1092 (7th Cir.
2013). In other words, our seven-factor list is not a doctrinal
touchstone and certainly not a straitjacket. Rather than
marching through the list, we think it’s more meaningful to
focus on the specific considerations that bear weight in
No. 23-1610 15
evaluating the competing interests in the specific context of
this case.
We begin with Darlingh’s particularized speech interests,
which here are strong. She spoke during an organized
political rally, and her speech touched on a matter of intense
public concern, which requires the school district to “offer
particularly convincing reasons” to justify its decision to fire
her. Gustafson v. Jones, 117 F.3d 1015, 1019 (7th Cir. 1997).
And because Darlingh is a trained educational professional
who works with children daily in her role as a school guid-
ance counselor, her perspective on gender-identity issues
and their impact on children carries special weight. The
Supreme Court’s cases “dating back to Pickering have recog-
nized that speech by public employees on subject matter
related to their employment holds special value precisely
because those employees gain knowledge of matters of
public concern through their employment.” Lane, 573 U.S. at
240.
But context is important, and Darlingh’s role as a school
guidance counselor has nuanced implications here for
several reasons. First, her profligate use of vulgar language
weakens her speech interests, especially because she is a
school counselor and explicitly identified herself by refer-
ence to her public employment. Although “in public debate
[we] must tolerate insulting, and even outrageous, speech in
order to provide adequate breathing space to the freedoms
protected by the First Amendment,” Snyder v. Phelps, 562
U.S. 443, 458 (2011) (internal quotation marks omitted), an
expletive-laden tirade by a public-education professional
like Darlingh deserves less weight in the Pickering balance,
see Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) (“Speech
16 No. 23-1610
done in a vulgar, insulting, and defiant manner is entitled to
less weight in the Pickering balance.”). Moreover, Darlingh
gratuitously attacked people, not just ideas: she vilified
people who disagree with her using particularly crude
terms. That kind of speech contributes little to any debate.
The extreme vulgarity and belligerent tone of her speech
diminish the strength of her First Amendment interests even
if those interests might otherwise be strong when considered
in the abstract.
Second, Darlingh’s role as a school guidance counselor
heightens the school district’s already weighty governmental
interests. On that side of the Pickering scale, we have previ-
ously explained that teachers and guidance counselors
occupy roles that entail “an inordinate amount of trust and
authority,” which makes the government’s interests particu-
larly compelling. Craig v. Rich Twp. High Sch. Dist. 227, 736
F.3d 1110, 1119 (7th Cir. 2013). These positions by their
nature require “a degree of public trust not found in many
other positions of public employment.” Melzer v. Bd. of Educ.,
336 F.3d 185, 198 (2d Cir. 2003). One of the school district’s
most basic obligations is to ensure a safe and supportive
educational environment for all students. It does so through
its faculty and staff—including, of course, its guidance
counselors.
Darlingh’s speech was fundamentally at odds with this
foundational duty. It was not a calm, reasoned presentation
of her views on this sensitive subject. She made a harsh,
angry, and profanity-filled public pledge to carry out her
counseling duties in a relentlessly rigid way when it comes
to transgender issues. That pledge was hardly compatible
with her obligation to build student and parental trust when
No. 23-1610 17
counseling children with gender dysphoria or who other-
wise struggle with gender-identity concerns. Nor is it com-
patible with her responsibility as a school counselor to
promote respect for and humane treatment of these children
by other students. Darlingh vowed that “not a single one” of
her students would “ever, ever transition” on her watch,
punctuating her promise with multiple expletives. In this
way she signaled to students and parents an inability to deal
with this sensitive subject with equanimity, civility, and
respect for different views. Her speech is hard to reconcile
with her professional obligation to approach her counseling
duties with empathy and good judgment.
True, Darlingh tried to explain and soften the tone and
tenor of her speech in her written response to the school
district’s charges against her. But it was not unreasonable for
the district to conclude that her effort to ameliorate the
detrimental effects of her speech was insufficient to restore
confidence in her ability to appropriately perform her role as
a school counselor. Darlingh explicitly linked her opinions
on transgender issues to actions she would take on the job in
a manner that conflicted with the school district’s mission
and policies. School officials reasonably took her at her
word.
In short, the school district’s interests as a public employ-
er outweighed Darlingh’s free-speech rights in these circum-
stances. Our decision rests on the speech itself, the sensitive
nature of Darlingh’s job, and the school district’s reasonable
assessment that her profanity-ridden remarks expressed a
fixed commitment to carry out her duties in a way that
18 No. 23-1610
conflicted with its mission and policies, to the detriment of
the district, students, and parents.1
For these reasons, the Pickering balance tips in favor of
the school district. Darlingh’s speech falls outside the scope
of the First Amendment’s protection as applied in the con-
text of public employment.
AFFIRMED
1 We have no need to consider the incident in Raven Chappelle’s class-
room. Darlingh objected to giving that episode and its aftermath any
weight in the First Amendment analysis, citing the “heckler’s veto”
doctrine. See Nelson v. Streeter, 16 F.3d 145, 150 (7th Cir. 1994) (“First
Amendment rights are not subject to the heckler’s veto.”). This case does
not require us to address the extent to which the “heckler’s veto”
doctrine applies in First Amendment retaliation claims by public em-
ployees. See Craig, 736 F.3d at 1121 (7th Cir. 2013) (briefly discussing the
doctrine in this context).