Duval County School Board v. Caggiano, decided Nov. 15, 2021, a Florida Division of Administrative Hearings ALJ recommended discipline—three-day suspension without pay and requirement “to complete a course in Culture Diversity”—for a high school math teacher based on two Facebook posts. These posts were posted on the teacher’s Facebook page. The page listed the teacher’s Duval County employment, as many other pages do. Two posts were cited by the judge as justification for discipline:
(a). A repost taken from Facebook by “Messenger of Liberty”, which says: “My child is participating in a socio-economic experiment. For two weeks, he will wear a Bernie 2020 shirt and watch how the public reacts. His reactions to the Bernie 2020 t-shirt have been mixed. He has already had his nose punched, punched and a bottle thrown at it. “I’m interested to see what happens outside.” …
(d) Repost from someone else, that appears to be a screen grab from a Fox News segment. It states at the top “MAN AND WOMAN” and then says: “An individual goes home and masturbates his typical fantasies. The woman is on her knees and the woman was tied. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…” The “screen grab” attributes this quote to Bernie Sanders, currently a United States Senator from Vermont, sometime in the 1970’s (the exhibit copy is unclear), and Mr. Caggiano’s handwritten notes next to this exhibit states” “Bernie said this!” …
For more information on Sanders’ essay see here. These posts led to an article in Florida Times Union and diverse criticisms from both parents and the public.
[36.]Following the publication of the Florida Times Union May 21, 2020 article, several complaints were received by school officials including Dr. Hatcher and Ms. Schultz. The undersigned received into evidence numerous complaints from parents concerning Mr. Caggiano’s Facebook posts …. These parents testified during the last hearing about their concerns and opinions regarding Mr. Caggiano’s activities on Facebook. The parents stated that Mr. Caggiano’s posts on Facebook were not appropriate for teachers.
[37.] Assistant Principal Motley testified that a total of four students … requested and were transferred out of Mr. Caggiano’s classes during the Spring 2020 semester….
[44.] With respect to Mr. Caggiano’s repost from a Facebook entity called “Messenger of Liberty,” … Mr. Caggiano testified that “it’s funny. All of my posts contained political commentary, adult humor or social commentary. It’s quite funny. Okay. You know, it’s hard to see that picture and not laugh. That’s funny.”
[45.]The repost says that his son, who wore “Bernie” tee-shirts, “followed by a laugh.”[s]He has been punched, spit on and thrown a glass at many times. While Mr. Caggiano claimed that this was “funny”, the undersigned believes that it could also be read to encourage violence towards children.
[46.] With respect to Mr. Caggiano’s repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” … Mr. Caggiano testified that it was not his opinion, but that he was quoting Bernie Sanders, and that “people should know somebody who’s a sitting senator, twice presidential candidate, former mayor of New York City, has this sort of mentality.” [Sanders was the former mayor of Burlington, Vermont, though this error was of course not relevant to the analysis.-EV]
[47.]When cross-examination was conducted, the following question came up: “Women or teenage girls could this posting offend?”[,]He said, “I believe everybody should find this offensive.” While Mr. Caggiano may believe that his post contains important information about Bernie Sanders, it is clear that the undersigned believes that it could be logically interpreted to offend, discriminate, and degrading for women. Mr. Caggiano’s own testimony confirms this….
[53.] The undersigned finds that two of the alleged posts, reposts, and comments—entitled “My son is taking part in an experiment,” and “MAN AND WOMAN”—warrant further findings that include violations of statutes, rules, and policies enunciated in the Amended Step III Progressive Discipline correspondence….
[54.]Both posts are about violence and child abuse. The post about women, Mr. Caggiano openly acknowledged. These posts are in violation of some of the policies, laws and rules alleged to be contained within the Amended Step III Progressive Discipline correspondence.
[65.]Concerning the above Facebook posts, the School Board determined that Mr. Caggiano’s behavior was “potentially harmful to the mental and physical well-being of students”[,]”” and “behavior which impairs an employee’s ability to perform her/his duties, professionalism and confidence in front of students and parents/guardians[,]” and thus, under article V, section C, subsections 9 and 10 of the CBA, it was not required to follow the steps of progressive discipline, and had just cause to reprimand (Step II) and suspend without pay (Step III) Mr. Caggiano, and require him to complete a course in Culture Diversity….
To me it seems difficult to justify. But, of course there is. Pickering The test for speech by government employees is known for being vague, partly because it’s one First Amendment test which overtly calls to balance. It’s also notoriously vulnerable to hecklers’ vetoes.
The decision of the school board on whether to accept or reject the ALJ’s orders is up now. Caggiano, who has made exceptions to the order and the school board are now looking into them. A possible appeal to the state courts may be available.