SEE YOU IN COURT - March 2021

Bob Bombast, a veteran member of the Nutmeg Board of Education, has been concerned about the continuing impact of the COVID-19 pandemic, and he proposed on his Facebook page that the Board should cancel all spring sports this year.  As might be expected, Bob’s proposal met with fierce criticism from the Nutmeg sports community.  The harshest criticism came not from the parents and boosters, however, but rather from Alex Agile, a star lacrosse player and captain of the lacrosse team. 

Bob was used to being criticized, given the impressive number of bad ideas he has had over the years as the senior member of the Nutmeg Board of Education.  However, he and the other Board members were shocked and disturbed by Alex’s vituperation.  Alex had posted a series of vulgarity-laden rants on Instagram, calling Bob an idiot and demanding that he resign from the Board.

Bob was incensed at Alex’s impertinence, and he called Mr. Principal at Nutmeg Memorial School to demand action.  Mr. Principal assured Bob that he was already aware of Alex’s posts, and he was ready to take appropriate action.  After all, he told Bob, student athletes are role models, and we cannot have them making vulgar posts or insulting elected officials. 

True to his word, Mr. Principal called Alex and his parents for a pre-suspension hearing on Zoom.  It was a short conversation, because Alex proudly admitted that he is responsible for the posts attacking Bob.  Mr. Principal asked Alex if he would take down the posts and apologize to Bob for his vulgarity.  However, Alex and his parents were adamant that Alex’s posts on Instagram were none of the school’s business and that Alex would continue to demand Bob’s resignation on his Instagram account.

Mr. Principal decided not to suspend Alex, given that his posts were all off campus.  However, he felt that he did have to take some sort of action.  So he sent an email to Alex, the entire lacrosse team, and their coach announcing that he was removing Alex from the lacrosse team.  None of them took it well.

Coach Rock was particularly infuriated.  Alex was clearly the best player on the team, and losing Alex for the season would be a huge blow.  So Coach Rock went on social media to complain that Mr. Principal’s actions were unreasonable.  “Where does Mr. Principal get off destroying the Lacrosse Team to curry favor with some school board member?” he posted on his Facebook page.  “As coach of this team, I will not rest until Alex is reinstated to his rightful place on our team.”  To make matters worse, many others added comments to Coach Rock’s post, demanding Bob’s resignation.

Mr. Principal promptly wrote Coach Rock up for insubordination, and Coach Rock promptly grieved the discipline.  Mr. Principal and Ms. Superintendent both denied the grievance, and the grievance is now at Level Three, awaiting consideration by the Nutmeg Board of Education.

Does the disciplinary letter for Coach Rock violate his free speech rights?  Were Alex’s free speech rights violated when he was kicked off the lacrosse team?

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Coach Rock has a weak case, and it is unlikely that a court would find that discipline for his Facebook post violated his free speech rights.  To be sure, public employee free speech rights are protected by the First Amendment, but those rights are not absolute.  In 1968, the United States Supreme Court ruled that public employees have free speech rights.  Pickering v. Board of Education, 391 U.S. 563 (1968).  There, a teacher in Illinois was fired for writing a letter critical of the board of education and superintendent that had factual inaccuracies.  The lower courts in Illinois affirmed the termination, but the United States Supreme Court reversed, ruling that the termination violated the teacher’s free speech rights under the First Amendment. 

In this case, the Court explained that public employee speech must be subject to a balancing test.  The Court refined that test in 1983, announcing the two-part test that guides public employers in addressing most issues of public employee speech.  Connick v. Myers, 461 U.S. 138 (1983).  First, to be protected, speech must relate to a matter of public concern.  Second, the importance of the speech must outweigh the disruptive impact of the speech, if any.  With one major exception, we rely on this test to determine, for example, whether a teacher’s post on Facebook is protected speech.

The major exception relates to employee speech that is “pursuant to duty,” i.e., speech that arises out of public employment.  In 2006, the United States Supreme Court ruled that such speech is not protected by the First Amendment.  Garcetti v. Ceballos, 547 U.S. 410 (2006).  The Court reasoned that every employment dispute in the public sector should not potentially be a constitutional issue, and it ruled that First Amendment protections do not apply when employee speech arises out of employment.  Here, Coach Rock spoke out “as coach of this team,” and his insult of Mr. Principal and Bob Bombast would not be protected speech.

Finally, we must consider the student’s free speech rights.  The year after it decided Pickering, the United States Supreme Court famously announced that “It can hardly be argued that either students or teachers shed their constitutional right of free speech or expression at the schoolhouse gate.”  Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969).  There, the Court ruled that student speech may be regulated only if school officials reasonably forecast that the speech will cause (or has caused) material disruption or substantial interference with the educational process or violation of the rights of others. 

Our Second Circuit Court of Appeals applied the Tinker rule in 2008 to deny a claim by a student in Connecticut that school officials violated her First Amendment rights when they barred her from student government for intemperate remarks about the superintendent and principal.  Donniger v. Niehoff, 527 F.3d 41 (2d Cir. 2008).

It is not clear whether Alex’s vulgar comments truly disrupted district operation as required by Tinker.  However, in contrast to the Donniger case, last year the Third Circuit struck down discipline of a student for vulgarity she posted on Instagram after she did not make the varsity cheerleading squad.  Significantly, the court ruled that the Tinker rule does not authorize discipline of students for off-campus speech.  B.L. v. Mahanoy Area School District, 964 F.3d 170 (3d Cir. 2020).

This ruling that school officials do not have any authority to regulate online speech of students could have profound impact on student discipline, raising for example serious questions as to the authority of school officials to regulate cyberbullying.  Just last month, the United States Supreme Court accepted the case for review.  Stay tuned!