On January 4, 2024, the United States Court of Appeals for the First Circuit issued a decision in Pitta v. Medeiros, No. 23-1513, affirming the dismissal of a parent’s claim that a Massachusetts school district (“the District”) and its Administrator for Special Education violated his First Amendment rights when they refused his request to video record his child’s private, individualized educational program (“IEP”) team meeting. In so holding, the First Circuit concluded that video recording an IEP team meeting is not protected by the First Amendment.

In February and March 2022, the parent and District employees attended two virtual IEP team meetings to discuss and develop a new IEP for his child. Following these meetings the parent alleged that certain statements were not included in the team meeting minutes, objected to the minutes as an official record of the meetings, and requested that the minutes be amended to include the omitted portions. No amendments were made. Months later, in September 2022, the parent attended another IEP team meeting, which was conducted virtually through a password protected Google Meet. The parent requested that the District employees record the meeting using the Google Meet record function. The District refused his request, stating that it would be invasive and was not permitted by District policy; however, the District offered to audio record the meeting instead. Once the meeting began the District announced that the meeting was being audio recorded and the parent responded that he was video recording. The Administrator for Special Education informed the parent that if he did not stop his video recording she would end the meeting. When the parent refused to discontinue video recording the meeting was ended. The parent then filed a lawsuit in United States District Court seeking declaratory and injunctive relief.

The District Court dismissed the parent’s complaint for failure to state a claim and the parent appealed. On appeal, the First Circuit affirmed the dismissal. The Court reasoned that the First Amendment does not protect video recording an IEP team meeting because: (1) such meetings do not occur in a public space; (2) school staff who attend IEP team meetings are not included in the definition of “public officials” as the term has been applied in First Circuit precedent; and (3) there was no corresponding right of the public to receive the information or, therefore, any intent that it be disseminated.

In particular, the Court explained that a student’s IEP team meeting, whether virtual or in person, is ordinarily not conducted in a “public space” because these meetings involve the discussion of sensitive student information. The Court added that school employees attending IEP team meetings are not akin to the public officials in the decisions cited by the parent, which generally involved law enforcement officers performing duties in obviously public spaces. Finally, the Court reasoned that its precedent has repeatedly framed the right to record public information as being linked to the right of the public to receive this information. In contrast, the Court held no such interest would be served by video recording an IEP team meeting because the information at the meeting is not intended to be disseminated to the public.

Although the Court concluded that there is no First Amendment right to record an IEP team meeting, the Court further held that even if there were such a right the parent’s claim would still fail. It ruled that the District’s policy prohibiting video recording of IEP meetings promotes a substantial government interest because it promotes candid conversations in the discussion and development of IEPs in order to provide students with a free appropriate public education as required by the Individuals with Disabilities Education Act (“IDEA”) while leaving open alternative means for collecting and memorializing information from IEP team meetings. The Court stated that the policy serves a purpose unrelated to the specific content of the meeting and would therefore survive First Amendment challenge.

The First Circuit’s decision in Pitta makes clear that the right to film public employees performing their duties is context specific and does not extend to events such as student IEP team meetings.  It should be noted that this decision only addresses the parent’s claim under the First Amendment and does not address whether a parent has a right to video record an IEP team meeting under any federal or state statute or regulation. If you have questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to First Amendment compliance and/or to the conduct of IEP Team meetings.

This update is provided for informational purposes only and should not be considered legal advice.

On September 25, 2023, the United States District Court for the District of Massachusetts issued a decision in MacRae v. Mattos, No. 21-cv-11917-DJC, granting summary judgment in favor of the Hanover Public Schools (the “District”) and two District administrators who were alleged to have retaliated against a teacher for exercising her First Amendment rights when they dismissed her.

Prior to becoming employed by the District, MacRae operated a TikTok account. Using that account, MacRae liked, shared, posted or reposted six memes that contained themes of homophobia, transphobia, and racism. In May, MacRae sought election to the Bourne School Committee. On May 17, 2021, the day of the election, MacRae posted a video to her TikTok account expressing her view that critical race theory should not be taught in public schools and that students should not be “taught that they can choose whether they want to be a girl or a boy.” MacRae was elected to the Bourne School Committee. Three months later MacRae was hired as a teacher with the District. On the same day, the Bourne School Committee received a complaint regarding her social media posts. After the Bourne School Committee made a public statement denouncing MacRae’s social media activity, a local newspaper published an article about MacRae’s posts. As a result of the news article, the District became aware of MacRae’s prior social media activity and placed her on paid administrative leave pending an investigation. Through its investigation, the District discovered the memes associated with MacRae’s TikTok account. The District terminated MacRae because her social media posts conflicted with the District’s values and continuing her employment would have a significant negative impact on student learning.

MacRae’s lawsuit alleged unlawful retaliation for MacRae’s pre-employment speech, which she claimed was protected by the First Amendment. On motion by the defendants the court entered a summary judgment dismissing MacRae’s lawsuit.

The District Court applied the three pronged test used by the Court of Appeals in the First Circuit to evaluate First Amendment claims by public employees, which asks: (1) whether the employee spoke as a citizen on a matter of public concern; (2) whether the interests of the employee in commenting upon matters of public concern outweigh the interests of the public employer in promoting the efficiency of its services; and (3) whether the employee has shown that their protected expression was a substantial or motivating factor in the adverse employment decision. The court rejected MacRae’s argument that this framework should not apply because her speech occurred before she was hired by the District. The court then applied the three-part test; ruled that MacRae had satisfied the first and third elements; but decided that the undisputed facts established that her speech did not outweigh the District’s core interests in preventing disruption of its educational environment for students based on her comments.

Observing that the publicity given by the media to MacRae’s posts had been extensive, the court noted that the potential for disruption in the District’s schools was greater because of this coverage. The court also used specific testimony by three teachers that MacRae’s posts – especially those regarding transgender students – could make students feel “unsafe, unwelcome, or otherwise distracted from learning.” The court added that several of her comments were “in conflict with the District’s stated mission.” Focusing on the District’s interests in preventing disruption caused by MacRae’s speech, the court stated that “[t]he limited evidence of actual disruption does not preclude summary judgment” because “[s]chool administrators should not be discouraged from taking action to minimize disruption to student learning.” It added that the District’s teachers “were not merely speculating about the potential disruption” since “MacRae’s same speech had caused considerable controversy in Bourne.”

This decision is an important application to the school context of the general rules regarding the First Amendment rights of public employees. The outcome was determined on the basis of the specific facts in the case. Because this is a complicated area of the law, school districts confronting these issues should seek advice of counsel before imposing discipline for an employee’s speech, particularly when it occurs on social media and outside the work day. We note that MacRae has filed a timely notice of appeal to the Court of Appeals, which will review the decision.

If you have questions about the content of this update, please contact us. We are pleased to assist public employers with all issues related to First Amendment compliance and the numerous related questions.

This update is provided for informational purposes only and should not be considered legal advice.

On September 21, 2023, the Massachusetts Appeals Court issued a decision in Tufts Medical Center v. Dalexis, No. 22-P-15, which affirmed a Massachusetts Commission Against Discrimination (“MCAD”) decision holding that Tufts Medical Center (“Tufts”) engaged in unlawful discrimination on the basis of disability by refusing to excuse an inpatient nurse from overtime.

Dalexis worked as a “day/rotator” inpatient nurse on the day-evening shift at Tufts. Dalexis was diagnosed with rheumatoid arthritis and interstitial lung disease. After exhausting her protected leave, Tufts informed Dalexis that her nursing position would be filled and she would need to apply for open positions when she was ready to return. When Dalexis was cleared to return to work, she was not immediately selected to interview for open positions. When she was offered a vacant night-shift position, Dalexis declined the offer, explaining that night shifts exacerbated her medical condition. Subsequently, Dalexis’ doctor provided Tufts with a note explaining that Dalexis could not work overtime or night shifts. Based on that information, Tufts concluded that Dalexis was ineligible for an inpatient nurse position because the ability to work overtime was an essential function of the job.

Dalexis filed a complaint with MCAD alleging that Tufts discriminated against her on the basis of her disability. A Hearing Officer concluded that Tufts should have accommodated Dalexis by excusing her from overtime and night-shift work. In so holding, the Hearing Officer found that working overtime was not an essential function of Dalexis’ position. The Hearing Officer further held that Tufts failed to participate in an effective interactive process with her, resulting in her constructive discharge. The full Commission affirmed the Hearing Officer’s decision in its entirety and a judge of the Superior Court affirmed the Commission’s decision. Tufts then appealed.

On appeal, the Court explained that determining whether a particular job function is “essential” for purposes of G.L. c. 151B is intensely fact-based and requires individualized inquiry. Massachusetts courts have previously identified several nonexclusive factors to consider in determining whether a particular function is essential, including: (i) the employer’s judgment as to which functions are essential; (ii) written job descriptions as prepared before advertising the job; (iii) the amount of time spent on the job performing the function; (iv) the consequence of not requiring the incumbent to perform the function; (v) the terms of a collective bargaining agreement; (vi) the work experience of past incumbents in the job; and (iv) the current work experience of incumbents in similar positions. Considering the foregoing factors, the Appeals Court concluded overtime was not an essential function of the job of an inpatient nurse.

As a threshold matter, the applicable CBA did not mandate overtime. Moreover, while many nurses at Tufts worked overtime, some nurses performed as little as three hours of overtime during a full year, and more than five percent of Tufts nurses worked no overtime at all. Further, Dalexis herself had previously been granted an accommodation exempting her from overtime. Accordingly, the Appeals Court discerned no cause to disturb the judgment of the Superior Court affirming the MCAD Decision.

Importantly, the Court noted that overtime can be an essential function of a job. However, the fact that overtime has been found to be an essential function in certain settings does not compel that conclusion in all circumstances. The Tufts Medical Center decision is an important reminder that the determination of whether a particular function amounts to an “essential function” of a job is a fact specific inquiry and cases involving overtime work can pose a particular challenge in applying the applicable analytical framework.

If you have any questions about the content of this update, please contact us. We are pleased to assist public and private employers with all issues pertaining to reasonable accommodations.

This update is provided for informational purposes only and should not be considered legal advice.