School District’s Interests Outweigh Teacher’s Free-Speech Rights

Takeaway: While private employers are not governed by the First Amendment, they must nevertheless be mindful that their employees’ on- or off-duty speech and associational activities may be protected by labor laws and various anti-discrimination laws.

A former high school teacher in Massachusetts sued school officials after being terminated for posting six controversial memes to her personal TikTok account a few months before she was hired. Soon after the teacher started her job, the posts came to light and the defendants terminated her employment on the grounds that her continued employment would have a significant negative impact on student learning. The 1st Circuit upheld the trial court’s grant of the defendants’ motion for summary judgment.

During 2021, the teacher liked, shared, posted, or reposted six memes that mocked transgender people and immigrants on her TikTok account. In May of that year, she was elected to the school committee in her hometown.

On Aug. 25, 2021, the teacher was hired to teach math in a neighboring district. The hiring official was unaware of the teacher’s TikTok posts or her position on the other district’s school committee.

On Sept. 21, a newspaper article about the teacher’s posts came to the attention of the hiring official who, in turn, shared it with the principal and superintendent. The teacher was placed on paid administrative leave pending investigation.

On Sept. 22, the principal viewed the neighboring school committee’s meeting regarding the teacher’s posts and discussed it with the other defendants.

On Sept. 24, the principal, accompanied by the math department head and the teachers’ union representative, interviewed the teacher and gave her a copy of the district’s mission and values statement. That document promised “a safe learning environment based on respectful relationships” and espoused “collaborative relationships” and “respect for human differences.”

On Sept. 29, the defendants terminated the teacher’s employment because, in light of her posts, her continued employment “would have a significant negative impact on student learning.” That same day, the teacher sued the defendants under 42 U.S.C. Section 1983 for allegedly retaliating against her for exercising her First Amendment rights.

The trial court granted the defendants’ motion for summary judgment, concluding that:

• The framework for claims brought by public employees applied.
• There were no genuine issues of material fact.
• The government’s interest in preventing disruption outweighed the teacher’s free-speech interests.

The question on appeal was whether the termination violated the teacher’s First Amendment rights. The First Amendment right to speak on matters of public concern is not lost when an individual chooses to work for the government, but government employers need some leeway in controlling their employees’ speech, the appeals court said. When a government employer retaliates against its employee for exercising their First Amendment rights, that employee can pursue a claim under 42 U.S.C. Section 1983. The parties agreed that the teacher spoke as a citizen on a matter of public concern and that the memes were a substantial and motivating factor behind the termination. So, the sole remaining issue was the balancing of the teacher’s and the government’s interests.

The 1st Circuit declined to treat the claim as one brought by a private citizen against the government, which involves a lesser burden for the plaintiff. “We see no reason why the government’s interest in the efficient provision of public services would simply evaporate into thin air just because the speech in question occurred prior to the start of employment and the employer did not learn of the purported disruptive speech until after the employee began working for it,” the court said.

The teacher had affirmed her views at the neighboring school district’s Sept. 22 meeting—after she had started work at the high school—and again at her deposition. The relatively short period between her posts and the start of her employment, as well as relevant case law, supported the application of the government-employee framework.

Some of the teacher’s memes touched on hot-button political issues, such as gender identity, racism, and immigration, and did so in a mocking, derogatory, and disparaging manner. As such, her free-speech interest did not carry the greatest weight. Moreover, the lack of any actual disruption did not mean the government’s interest in preventing disruption could not outweigh the First Amendment interest. A government employer’s reasonable prediction of disruption is afforded significant weight even if the speech at issue is on a matter of public concern.

The teacher was hired to educate a diverse student population. A few weeks later, her conduct became the subject of extensive media attention, and teachers and students in the school were aware of and discussing her posts.

“There is ample evidence to conclude that [the] defendants were reasonably concerned disruption would erupt,” the court said. The defendants “had an adequate justification for treating [the teacher] differently from any other member of the general public,” and their interest outweighed the teacher’s.

MacRae v. Mattos, 1st Cir., No. 23-1817 (June 28, 2024).

Margaret M. Clark, J.D., SHRM-SCP, is a freelance writer in Arlington, Va.