First Circuit Affirms Decision Dismissing Free Speech Retaliation Claim by Teacher Based on Pre-Employment Social Media Posts

On June 28, 2024, the United Stated Court of Appeals for the First Circuit issued a decision in MacRae v. Mattos, No. 23-1817, affirming a District Court’s grant of summary judgment in favor of the defendants, Hanover Public Schools (the “District”) and two District administrators who were alleged to have retaliated against a teacher for exercising her First Amendment rights.

In September of 2021, the District employed Kari MacRae (“MacRae”), a resident of Bourne, as a teacher. Prior to her employment with the District, MacRae liked, shared, posted, or reposted six controversial memes regarding various issues about racism and diversity to her personal TikTok account at different points in 2021, including as recently as May 2021 when she was elected to the Bourne School Committee. These posts were brought to the District’s attention and, following an investigation, the District terminated MacRae on the basis that her continued employment would have a negative impact on student learning in light of her social media posts. Thereafter, in November of 2021, MacRae filed a lawsuit against the District and two District administrators asserting a single claim of retaliation under 42 U.S.C. § 1983 for allegedly retaliating against her for exercising her First Amendment rights. The defendants filed a motion for summary judgment, arguing that when applying the First Amendment retaliation framework for claims brought by public employees against their government employers, the defendants’ interest in preventing disruption to the learning environment outweighed MacRae’s First Amendment interest. The District Court granted the motion and MacRae appealed.

Generally, a claim that a government employer has retaliated against its employees for exercising First Amendment rights is assessed under the framework established by the Supreme Court in Garcetti v. Ceballos. Under the applicable three-part test, the court will consider: (1) whether the employee spoke as a citizen on a matter of public concern; (2) whether the government entity was justified in treating the employee differently from any other member of the general public, when balancing the interests of the employee against the interest of the employer; and (3) whether the employee’s protected speech was a substantial or motivating factor in the adverse employment action.

On appeal, MacRae claimed that her retaliation claim should not be analyzed under the Garcetti framework. Rather, she asserted the court should apply the framework for claims brought by private individuals against government entities. The court disagreed, explaining that the allegations at issue directly involved a government employer terminating its public employee for their speech, thus falling squarely into the Garcetti framework. Although the speech at issue occurred prior to MacRae’s employment with the District, the relatively short period of time between her posts and the start of her employment counseled in favor of applying the Garcetti framework. Accordingly, the court concluded that application of the Garcetti framework was proper.

Because for purposes of summary judgment the parties agreed that MacRae had satisfied steps (1) and (3) of the test, the court focused on step (2). MacRae argued that the Hanover defendants’ interests did not outweigh her First Amendment interest. Specifically, she asserted that the District’s mere prediction of disruption was insufficient to outweigh her interest in engaging in political speech and that the defendant’s prediction of disruption was unreasonable. The court disagreed. It reasoned that an employer need not show actual disruption/adverse effect under the Garcetti/Pickering test, but rather the potential to disrupt which must be based on a “reasonable” prediction in light of the facts. The court ruled that the defendants’ prediction of disruption in Hanover was “eminently reasonable”. It noted that MacRae’s TikTok posts in Bourne became the subject of substantial media coverage and that the Bourne schools became “embroiled” in controversy over those posts, which among other things had circulated in the schools and had, upset staff and students. The court held that the defendants could reasonably predict similar disruption in Hanover based on the Bourne events, enhanced by her more “student-facing” role in Hanover and the circulation of her posts in the Hanover schools resulting in the defendants’ concern about the impact on their LGBTQ+ students. The court noted that even MacRae conceded that some of her posts could be seen by those students as derogatory.

Finding nothing in the record showing that the defendants had acted based on their personal dislike or disapproval of the posts, as opposed to their concern that students taught by MacRae would not feel safe or comfortable learning from her, the Court concluded that the defendants had adequate justification for treating MacRae differently from any other member of the general public. Thus, the court affirmed the District Court’s grant of summary judgment.

The decision in MacRae v. Mattos is important because it illuminates the circumstances in which school officials may reasonably predict disruption of the school environment based on an employee’s social media posts, even where those posts have been made before the individual actually becomes employed by the school district.

These cases are intensely fact-specific and school officials who are concerned by the social media activities of an employee or prospective employee are wise to consult with counsel before taking action. We represent school districts with regard to a wide range of legal matters, including the speech rights of employees.

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