The Seventh Circuit Court of Appeals recently upheld a school district's termination of a public high school teacher who had posted inflammatory comments on a Facebook page that was primarily followed by former students. Hedgepeth v. Britton,
A social studies teacher at an Illinois public high school for 20 years had been suspended twice by the school district for various actions, including swearing at students and profane outbursts in the classroom. In 2020, during the George Floyd protests, she made a series of posts to Facebook, including stating that protesters should be hosed down with high pressure water hoses. She also engaged with a former student on her Facebook page, stating that she found the term "white privilege" to be as racist as the "N" word.
The day after the teacher made the posts, the school principal began receiving complaints from current high school students, alumni, another teacher, and a parent. The school district also received emails, calls, and media inquiries regarding the teacher's social media posts. After investigating the matter, the school district fired her, finding that she violated four school district policies, including one that governed teacher conduct on social media and the school's “just and courteous professional relationships” policy she
had been disciplined for violating twice before.
After she was terminated, she appealed her termination to the Illinois State Board of Education, which upheld the district's decision to terminate her. She also filed a lawsuit against the school district, claiming the termination violated her First Amendment rights. The district court also upheld the school's decision to terminate her and she appealed to the Seventh Circuit Court of Appeals.
The Seventh Circuit acknowledged that public employees do not relinquish their First Amendment rights as a condition of accepting government employment. Based on U.S. Supreme Court cases, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen on matters of "public concern." However, that right is not unlimited or unrestricted, and public employees are subject to certain limitations on their freedom, depending on the employee's role, particularly when they serve in a role of "trust." In order to bring a First Amendment retaliation claim, the teacher had to prove three things: (1) that she engaged in constitutionally protected speech; (2) that she suffered a deprivation likely to deter that protected speech and (3) that the speech was a motivating factor in her termination.
The Seventh Circuit focused on the first prong of the test. That prong requires the employee to demonstrate that she was speaking as a citizen on a matter of public concern and, if so, the court will balance that interest against the government employer's interest in "promoting the efficiency of the public services." Even if an employee speaks on matters of public concern, they may not have First Amendment protections if the employer's interest outweighs their speech rights. This balancing test is known as the Pickering test that is derived from a U.S. Supreme Court case.
In applying the test, the Seventh Circuit first found that the teacher was speaking on matters of public concern in the Facebook posts that were the subject of the lawsuit. However, the court determined that the school district's interests outweighed the teacher's speech rights for several reasons. First, the school had an interest in addressing actual disruptions to school operations where the district received over a hundred emails and numerous other complaints about the teacher's social media posts. Second, the school could reasonably look to the teacher's past conduct and disciplinary record in considering whether her speech could have a future impact to school operations. Third, the court rejected the teacher's argument that her posts were on her private social media account so should not be the basis for her termination, because the court found that her audience (i.e., her Facebook friends) primarily consisted of community members (80% were former students), which amplified her speech. The court also noted that public school teachers occupy a unique position of trust, which makes the government employer's interest even more compelling.
In conclusion, the Seventh Circuit found ample evidence of actual disruption to the school district from the teacher's social media conduct, and that the teacher's social media posts were not entitled to First Amendment protection.
