In Thompson, an assistant principal, Randy Thompson, made a Facebook post after watching the Democratic National Convention, using violent language, slurs and epithets to express his opinion about the convention. After the post was seen by another district employee and shown to the superintendent, Thompson defended his post by stating that it was made on his private Facebook account, on his own time and on his personal device. Following this conversation, Thompson was placed on administrative leave, and an independent investigation began, which uncovered other instances and circumstances in which Thompson had used language that was considered offensive based on interviews of other employees and administrators.
The district alleged that, during the investigation, Thompson recanted his original admission and claimed his Facebook had been hacked and deleted emails and withheld information critical to the investigation. After offering Thompson a voluntary transfer to a teaching position that he rejected, the district transferred Thompson to a subordinate position citing seven specific reasons, including disruption to staff harmony and his comments being contrary to the district’s mission of inclusivity.
Thompson subsequently sued, arguing the district violated his First Amendment speech rights. The district court ruled in favor of the district, using the “Pickering test,” which originated in 1968 in, Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the U.S. Supreme Court held in favor of a school teacher who wrote a letter to a local newspaper criticizing the school board. In ruling for the teacher, the Supreme Court articulated the necessity of balancing school employees’ rights against the school’s interest of efficient operations when evaluating teacher’s speech.
Courts have since analyzed a public employee’s free speech claims against a government employer using the Pickering test, which has two parts. First, the employee must show the speech was on a matter of public concern and that they suffered an adverse employment action because of that speech. If that is satisfied, the employer can show their action was justified by demonstrating a legitimate administrative interest in promoting an efficient workplace that avoids disruption or that it would have taken the action even without the employee’s speech. If properly shown, the employer’s interest can outweigh the speaker’s speech rights.
In Thompson, the Ninth Circuit’s focus on the lower court’s application of this test provides guidance on how nuances of speech can impact the analysis and conclusion. The court began by affirming the district court’s determination that Thompson made a proper showing of a First Amendment retaliation claim, step one of the Pickering test. The analysis then primarily focused on step two of the Pickering test, specifically the district’s expressed legitimate administrative interest. Here, the district expressed its interest in fostering an inclusive and safe environment. Using a “sliding scale” analysis of the speech interest and district’s interest, the court found the district’s interest was superior to Thompson’s First Amendment interest.
The court’s sliding scale analysis was impacted by several considerations. First, the court explained that though Thompson’s speech was on a matter of public concern, for which he could have received “apex” First Amendment protection, the protection afforded Thompson’s speech was considerably lessened because of its derogatory nature and because it was not based in “specialized knowledge” from his role as an educator. As a result, Thompson’s speech interest was of less value when compared to the district’s expressed interest.
The court then considered the district’s interest and the disruption Thompson could possibly cause to district operations based on several factors from Supreme Court precedent. Namely, if the speech would impair the harmony among co-workers, if there is detrimental impact on close working relationships, if the performance of the speaker’s duties is impeded, or if the regular operations of the entity would be interfered with. Because the court had already determined that Thompson’s First Amendment interest was of lesser value, when reviewing the district’s evidence of disruption based on these factors, the court only had to determine whether those predications were reasonable. The court decided that the district easily accomplished this. According to the court, these factors were sufficiently met based on the various interviews and meetings conducted before transferring Thompson to a different position. The information gathered and presented to the court supported the district’s conclusion that Thompson’s speech would create disruptions in the future and that he did not and would not uphold the district’s commitment to equity and inclusion or work well with other employees, and his supervisory role would be impacted.
The court concluded by “caution[ing] that the Pickering balancing test is a ‘particularized balancing on the unique facts presented in each case,’ and [it does] not suggest that every time employee speech contains slurs or violent language, the [school’s] interest will automatically prevail.” This is important for LEAs to remember and emphasizes that speech related matters are a complex fact specific analysis.
Please note that the information provided here by CSBA is for informational purposes and is not legal advice. Contact your LEA legal counsel or CSBA Legal Services at legalservices@csba.org for questions related to this information.