Part 2 of the series Judicial Round Up – Corralling Cases That Affect Schools
John M. Sedor of Sedor, Wendlandt, Evans & Filippi, LLC
Our theme this year for our AASB Commentaries is “Judicial Round Up.” We are gathering significant court actions that impact school districts. This month we will explore the US Supreme Court’s decision not to take a school district speech case and consider the impact that “non-action” can have on the state of First Amendment Free Speech law.
The Decision to Take a Case: The Grant of Certiorari
Think of how many lawyers and lawsuits there are. 🙂 Then guess how often a losing side might want to appeal to the US Supreme Court. It’s a lot!
Every year 7,000-8,000 petitions for review are filed to the Supreme Court. The Court usually takes only about 80 of those cases. At least four of the nine Justices must vote for the petition for the Court to take the case. The taking of a case is called “granting certiorari” or “granting cert.” (The Latin phrase means “to be more fully informed.”)
If only about 80 cases are granted cert, that means that 7,000 or more cases each year are denied cert. The denial of cert is not a decision on the merits. That means the Court is not saying that it agrees with or doesn’t agree with the case on appeal when it denies cert. It simply means that 4 or more Justices didn’t vote to take the case. Almost always, the denial of cert provides no clue whatsoever as to why the case was rejected by the Court or any one Justice. But “almost always” means there are exceptions. Let’s look at one of these exceptions involving a school district and free speech.
The Freedom of Speech vs. The Freedom to Dismiss – MacRae vs. Mattos
Free speech goes to the very heart of our constitutional form of government. The First Amendment states in part “Congress shall make no law … abridging the freedom of speech …” But even this rule has exceptions.
One area where there is an exception is when the speaker is employed by the government (which includes a public school district). Over our 200+ years, the federal courts have worked to balance the interests between a government employee’s right to free speech and the government’s right to run an efficient and effective operation – like a school district.
The balance between the employee’s rights and the government’s rights is called the Pickering Test.[1] Under this test, a court must consider the interests of the employee, as a citizen, in commenting upon matters of public concern, and the government’s interest as an employer in avoiding workplace disruption.
With that general backdrop, let’s look at a case applying the Pickering test to a teacher’s social media posts. The Hanover Public School District hired Kari MacRae as a teacher. After she was hired, it was discovered that she had “liked, shared, posted, or re-posted” six memes expressing her views on social issues of the day (including immigration and gender identity) on Tik-Tok. Interestingly, all of these posts occurred prior to the date she was hired. Nevertheless, in 2021 the District decided to dismiss her from her employment based on the memes and based on its conclusion that her pre-employment speech would likely cause unreasonable workplace disruption. She sued the District.
The US District Court in Massachusetts upheld the dismissal of MacRae. Applying the Pickering balancing test, the court found:
- Some of her pre-employment posts spoke in a “mocking, derogatory, and disparaging manner.”
- The posts had come to the attention of the school community and the school board and had received local news coverage all of which resulted in at least some students and staff being aware of the posts. In addition, the local teachers’ union issued a statement opposing MacRae’s posts.
- Some of the posts conflicted with the District’s mission statement of ensuring a safe learning environment based on respectful relationships and respecting human differences.
In balancing the above findings against MacRae’s right to speak on matters of public concern, the court ruled in favor of the District concluding, on balance, that the risk of potential disruption outweighed MacRae’s speech interest.
She appealed to the US Circuit Court of Appeals for the First Circuit and lost again.
In 2024, MacRae filed one of the 7000+ petitions to the Supreme Court. The US Supreme Court denied cert. That means Ms. MacRae’s dismissal from employment stands. And while that is the end of the story for Ms. MacRae’s employment as a teacher at Hannover Public Schools, it is not the end of our story.
In an unusual step, Justice Thomas issued a comment to the denial of cert. This gives us a bit of a glimpse inside the Court as to what, at least, one Justice is thinking. Justice Thomas supported the denial of cert on a technical basis.[2] But it is hard or impossible to read his comment without concluding that (1) at least one Justice thinks the First Circuit decision is wrong and (2) he is looking (maybe inviting) a case that presents facts and issues that will give the Court a chance to correct his conclusion that First Circuit Court of Appeals is misguided in its application of the First Amendment to government employee speech. Here are a few things Justice Thomas said in this case that the Court did not take:
- “The First Circuit’s analysis strikes me as deeply flawed. … Although this Court has consistently … given substantial weight to government employers’ reasonable predictions of disruption,” the key word here is “reasonable.” In other words, unless applied with vigor, the reasonable prediction of disruption becomes the proverbial exception that swallows the rule.
- “We have made clear that the core First Amendment principle of viewpoint neutrality applies in the [Pickering balancing test] as elsewhere. … It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption.”
We live in interesting times. Speech (including electronic speech and social media) seems especially partisan and challenging as seen in recent news. And in that setting, the denial of cert in the MacRae case with the pointed unsolicited comment by a Justice who is often in the majority of this Court raises more questions than answers. At the school district decision making level, these questions translate into increased risk. Understanding risk is part of what this “Judicial Round Up” is intended to do.
Practice Pointers
Each month we provide “Practice Pointers” or practical suggestions for you to consider. If you are faced with a complaint about an employee’s speech, here are some Practice Pointers to consider:
- Facts matter – especially when analyzing free speech matters. Each situation is unique and a one-size-fits-all approach is never recommended in this area of the law.
- MacRae vs. Mattos is a Federal First Amendment case. Whatever the law may be under our Federal Constitution, any similar litigation in Alaska would also likely include claims under our State Constitution. The Alaska Supreme Court has said on multiple occasions that it is “not bound by decisions of the United States Supreme Court on similar federal provisions but may determine that Alaska provides greater protection for individual rights” including free speech.
- In Alaska, there is statutory protection for certified employees set out in AS 14.20.095. This statutory (in addition to constitutional) speech protection must be considered in an employee speech investigation.
- The denial of cert in MacRae does not mean the First Circuit application of the “reasonable prediction of substantial disruption” is approved by the Supreme Court. This is especially true in light of Justice Thomas’ comment. See Practice Pointer 1 above.
[1] The US Supreme Court Pickering case (1968) involved a teacher in Illinois who wrote a letter in to local the paper opposing a district proposed tax.
[2] Justice Thomas voted against granting cert in the MacRae case because the petition for cert was limited to the fact that the speech was pre-employment and did not seek review on the First Circuit’s application of the Pickering test.
