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.