A derogatory and threatening political Facebook post by an assistant principal at a middle school could validly be the basis for adverse employment action against the poster, given the District’s interests, the Ninth Circuit concluded this week in Thompson v. Central Valley School District No. 365.
A proper education? Woodshed photo by Kevin Jarrett on Unsplash.
The assistant principal’s post, made in response to the 2020 Democratic National Convention, referred to “Demtards” and called Michelle Obama a “hatefull racists bitch” (sic). He further suggested that Democrats needed to be taken “to the woodshed for a proper education.” When the post was reported and investigated, the assistant principal claimed his Facebook account had been “hacked,” but had no evidence to support that claim. The District transferred the assistant principal, who then sued for First Amendment retaliation.
This type of case — in which a public employee claims to have experienced retaliation for protected speech — is analyzed under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968). Under Pickering, if the plaintiff is able to make a prima facie showing that adverse action was taken on the basis of protected speech, the defendant must then show either “(1) that its legitimate administrative interests in promoting an efficient workplace and avoiding workplace disruption outweigh the plaintiff’s First Amendment interests; or (2) alternatively, the government would have taken the same actions absent plaintiff’s expressive conduct.”
Here, the District Court concluded that the School District met its burden on the second step of the Pickering analysis, and the Ninth Circuit affirmed. The Ninth Circuit emphasized that the “derogatory” nature of the post and the implied violence of his reference to the “woodshed” matters in that second-step calculus, meaning that the speech was not entitled to the highest degree of protection. The District’s interests, on the other hand, were weighty given that the plaintiff was in a public-facing role and seemed to be broadcasting views inconsistent with the District’s expressed values. His “derogatory and violent language could substantially disrupt the orderly operation of the school,” even when expressed by this individual on a personal Facebook account.
This particular situation does not seem like too difficult an application of Pickering because of the concerns emphasized by the appellate court, but you can see where a public agency’s commitment to somewhat vague values like “inclusivity” and “tolerance,” and the argument that private speech interferes with those values, could potentially get into more ambiguous terrain. Suppose, for example, a public employee posts something on a personal page agreeing with a “derogatory” sentiment of the current president. What then?
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