Schools May Have Violated First Amendment Rights by Retaliating Against Contractor Based on Political Speech

Today’s Judge Sandra Ikuta opinion, joint by Ryan Nelson and Mark Bennett. Riley’s American Heritage Farms v. Elsasser:

A school district has ended its relationship with an organization that offers field trips to public school students. After the main shareholder of the vendor for field trips made some controversial tweets, the school district decided to take this action. Parents complained.

The school district took adverse action against the vendor of field trips and the shareholder. Under 42 U.S.C., they sued the public school officials responsible. § 1983 for violating their First Amendment rights. The school officials have qualified immunity for the plaintiffs’ damages claims. However, we conclude there is an issue of materiality as to whether plaintiffs First Amendment rights were violated. However, the district court erred in granting summary judgment to the school officials on the plaintiffs’ claim for injunctive relief, because there is a genuine issue of material fact whether the school officials are maintaining an unconstitutional, retaliatory policy barring future patronage to the vendor….

James Patrick Riley (“Riley’s Farm”), is one the main shareholders in Riley’s American Heritage Farms. Riley’s Farm offers historical reenactments and events, such as Civil War and American Revolution. It also hosts apple picking events. During each year between 2001 and 2017, one or more schools within the Claremont Unified School District … booked and attended a field trip to Riley’s Farm….

In August 2018, Riley and Riley’s Farm both had separate social media profiles, which included Twitter accounts. Riley made comments on controversial topics using his Twitter account, which included President Donald Trump’s relationship with Stormy Daniels and President Barack Obama’s production deal for Netflix. He also commented on Senator Elizabeth Warren’s history, Riley’s views on gender identity, as well as President Donald Trump’s allegations about Stormy Daniels. These were just a few of the controversial tweets from Riley:

  • When #ElizabethWarren comes on @MSNBC, it’s therapeutic to issue a very earthy Cherokee war chant (‘hey-ah-hey-ah..etc) I’m doing it right now. I am running; I treat the desk lamps as mesquite campfires. It’s probably heard in Oklahoma. #ScotusPick
  • An ice sculpture depicting Kirsten Gillibrand was seen by a friend at a Democratic fundraiser. It was more natural for her to look that way, as she had more color in the cheeks.
  • I have just started planning my high school reunion, and realized I may be the last person to be born with only one gender.
  • “Missing ISIS” Heartwarming tale of Jihad fighter who is now living as a BLM protester.

Riley’s Farm’s Twitter account and web site did not include Riley’s tweets. Riley’s Farm was not mentioned on Riley’s Twitters, nor any other information related to Riley’s Farm.

Chaparral Elementary School kindergartener, Michelle Wayson was contacted by a parent about a field trip to Riley’s Farm. Michelle Wayson is one of several schools in the District. Screen shots of Riley tweets were included in the email. The father stated that her son would not be comfortable patronizing establishments whose owners (and/or families/employees might be inclined) to make bigoted comments towards them or any other child they are responsible for. Wayson forwarded the email of the parent to Ann O’Connor the school principal. O’Connor asked Wayson to talk with three of the Chaparral’s Kindergarten teachers about the concern and determine if there were other options. Brenda Hamlett (principal of Sumner Danbury Elementary school, also in the School District) reported that several parents asked Wayson to cancel their child’s field trip at Riley’s Farm.

Lee Kane was also a parent who had children in CUSD Schools and saw a post on Facebook discussing Riley’s tweets. Kane, a parent of children who attended schools in CUSD, sent David Nemer a copy the post on Facebook. Kane expressed concern that Riley’s Farm was being used for field trips by the School District “in light of public controversy around tweets” from Riley.

Nemer also forwarded Kane’s complaint to James Elsasser (the superintendent of the School district). Nemer informed Elsasser that there was concern over some “inappropriate and inacceptable tweets” by Oak Glen’s owner, which had apparently been visited on CUSD field trips. Nemer also described Riley’s tweets in the same email as being “obnoxious and bigoted.” Nemer sent Elsasser a follow-up email. He stated that “I believe many of our stakeholders will be uncomfortable with this tweets.” {At his deposition in this case, Elsasser later agreed that he considered some of Riley’s comments to be “racist, sexist, or homophobic.”}

Elsasser, School District Administrators and Elsasser met two days later in order to talk about parent concerns over field trips at Riley’s Farm. Elsasser asked school district administrators to meet with teachers in their schools and determine if any would continue to patronize Riley’s Farm. O’Connor then sent an email to the Chaparral Kindergarten teachers, asking them to find another option for the field trip. This would not lead to any parental complaints.

Next day, Redlands Daily FactsLocal newspaper printed a report about Riley and his tweets. It was called “These tweets provoked social media protest against Riley’s Farm Oak Glen owner.” Some community members expressed disgust at Riley’s white supremacist beliefs in tweets. Riley’s tweets were shared 1,300 times.

Julie Olesniewicz (Assistant Superintendent for Educational Services) sent an email to each principal of elementary school in the District “requesting that none of the CUSD schools attend Riley’s Farm Field Trips” and offered alternative routes. The parties dispute whether Olesniewicz’s guidance is still in place….

According to the court, Riley Farms had been essentially an employee of government contractors. The usual government retaliation test based upon speech by government workers or contractors was applied.

“‘[A]The First Amendment bans the government from subjecting individuals to retaliatory acts’ because of protected speech. Nieves v. Bartlett (2019). (2019).

This general rule aside, the Supreme Court acknowledged that the government could impose “certain restrictions on the speech of employees” that would not be constitutional if it applied to the public. According to the Court, there are “interests of an employer” in the regulation of employees’ speech that is different from its interests in the regulation of citizen speech. “[T]While the government is interested in meeting its objectives as efficiently and effectively as possible, it has an elevated interest. This interest goes from being a fairly subordinate one as it serves as sovereign to one that is significant when it functions as employer. However, the government does not have unlimited power to place such restrictions. It is not constitutionally possible to force government employees to surrender their First Amendment rights that they otherwise have as citizens. They cannot be forced to speak on public matters in the interest of the public.

PickeringThe Court established a framework that would balance competing interests of the employee and the employer. Sometimes referred as the “The Framework”, this framework was created to balance competing interests between government employer and employee. PickeringThe balancing test” “requires the use of fact sensitive and deferential weighting of the employer’s legitimate interest against the First Amendment rights to the employee.” This framework was initially applied to government workers by the Court, but it has been extended to cases brought against government contractors for retaliation because of “the obvious similarities” between contractors and employees in this area.

The functionality of the website has been further enhanced. PickeringFramework to deal with a variety of situations in which “the relationship between parties is analogous that between employer and employee”. “The rationale to balance the government’s interest in efficient performing public services against the speech rights of public employees applies.” We have found that this is the case. PickeringFramework was applied to a retaliation case brought by a vendor of weatherization services to a claim made by a domestic abuse counselor working for a private firm that provided counseling services to a municipality court and to a claim filed by a volunteer probation officer. However, the framework has not been applied to any claim by a volunteer probation officer. Pickering framework to retaliation claims brought by regulated entities, where the relationship between the plaintiff and the government was akin to that of a licensee-licensor and bore no indicia of a typical employee-employer relationship….

According to the court, the plaintiffs can prevail on this test if they prove the facts:

Since Riley plaintiffs already have the burden of making a prima facie cause of retaliation, that burden now shifts to School defendants who must prove that the School defendants took the adverse action in order to show they had legitimate countervailing public interests [that were]”sufficiently strong” PickeringBalance test: “Outweighs the Free Speech Interests at Stake.”

These legitimate countervailing rights may be demonstrated by the government by proving that contractor’s disruptive behavior disrupted government work environments, such as interfering in government operations or services. To assert such an interest, government officials must “prove actual, substantial and substantial disruption or reasonably predict disruption at the workplace.” Free speech will be impeded more severely if there is evidence that disruptions have already taken place in the workplace. However, “[t]The employer does not have to establish the conduct of an employee Actually disrupted the workplace—’reasonable predictions of disruption’ are sufficient.” When an employee disrupts the workplace environment, the government will be more inclined to pay its debt than when it occurs in employee’s “free time” away from work. Although it may “rely upon the possibility of future disturbance,” it must show that the government can reasonably predict disruption using evidence. This is not speculation, but a bald allegation.

Public school officials may claim that they took adverse action to stop a plaintiff from disrupting school operations or curricular design. Courts will then consider whether parents and students have raised concerns that the plaintiff’s behavior has caused disruptions to school operations or eroded public trust between school and its community. Because schools are accountable in loco parentisSchool officials know that students and parents will be concerned about the impact of controversial behavior on their learning environment. This can be justified for parents, who can predictably say that disruptions caused by parents could be described as “internal disruption” to the school’s operation. A factor which might be included in the balance test, and which may exceed the rights of a public employee.

Parents who are concerned about the controversy surrounding their child’s conduct may consider the evidence of disruption substantial. They could threaten or choose to “remove the children from the school” and interrupt the children’s education. This is why the Second Circuit found that substantial disruption justified the government’s adverse actions against a public-school teacher involved in a paedophile association. Nearly 60 parents raised concerns about their teacher’s controversial beliefs. Students also staged a demonstration to express their opinions. The court gave credit to the school for claiming that the parent’s threats of removing their children caused substantial disruption in its operations and relationships with parents. Although the teacher had stated that his First Amendment right to advocate for controversial political changes was “highest valued”, the court found that evidence that showed that disruption occurred justified by the school’s actions under Article 57. PickeringBalance test

The Third Circuit ruled that when a school was subject to hundreds of parent complaints about the blog of a teacher that criticised her students, that school’s conclusion that her disgust toward her students would cause her to lose her teaching duties, and undermine the trust between her and her students and their parents, could be considered substantial disruption and sufficient reason for terminating her. You can also see Craig v. Rich Twp. High Sch. Dist. 227 (7th Cir. 2013. (holdening that the government has a legitimate right to prevent disruption arising form parent complaints concerning a school counselor who wrote an over-sexualized guide book for girls and dedicated it his students)

Applying the framework and viewing the evidence as it is, Riley plaintiffs are not able to show that Riley’s freedom of speech rights were overruled by School District’s asserted interest in stopping disruptions to operations or curricular design, which they claim was necessary to prevent any disruptions.

We are less concerned about government concerns regarding the disruption of speech beyond the work environment. Riley’s tweets, which were controversial in nature, were sent from his own Twitter account and didn’t mention Riley’s Farm or the School District. Riley has not been accused of making (or planning to make) controversial statements while on school field trips. There is no evidence that Riley ever interacted with any students. Riley’s tweets were associated with the School district due to local media attention. However, when you consider the evidence most favorable for the Riley plaintiffs the weakening relationship between Riley’s controversial speech and field trips itself weighs against Riley’s claimed interest in disrupting its operations and designing curricular changes.

Riley’s speech has not caused any disruption in school operations. Two parents filed complaints against Riley’s speech. Only one complaint was about a current student in the School District. The substance has been provided by the School defendants. {Moreover, there is a dispute whether that child was even scheduled to attend a field trip to Riley’s Farm, or whether the parent had confused Riley’s Farm with another, unrelated apple-picking venue with a similar name.} Hamlett stated that several parents requested the Sumner Danbury principal for permission to take their children on field trips. But, the evidence about the parents and the nature of the complaints is not available. This contrasts with cases in which hundreds of student and parent complaints were considered by the government.

The School defendants also failed to present evidence of future disruption that could allow them to be granted summary judgment. Contrary to the evidence in MeltzerThe record shows that only a few parents requested that their child not be allowed to go on a field trip after hundreds of threatened parents removed them from school. These requests don’t show the disruption caused by a lot of parents trying to take their children out of school.

Even though evidence suggesting that members of the public have taken an interest the plaintiffs’ conduct might also be persuasive for the government’s claim of disruption, Riley’s twitter posts are not the subject of much media attention. This is the Redlands Daily FactsA report on Riley’s Tweets by’s editor noted there had been a “social media protest” against Riley’s Farm and that Riley’s tweets have been shared approximately 1,300 time. There is no record to show that Riley’s tweets have been covered in any other media or newspapers, nor that they received national attention. Compare MunroeNoting that the controversial teacher’s blog post was covered by Huffington Post and that the teacher appeared on ABC, CBS and NBC as well as CNN and Fox News and other stations, the teacher was also interviewed by “several” print news outlets, such as the Associated Press and Reuters. Time MagazineAnd the Philadelphia Inquirer“). While the School defendants offered evidence that Riley’s tweets were liked by many district residents, parents, and others, it does not support this claim. The School defendants also did not give details of how many comments they received. This attenuated relation between the tweets’ content and Riley’s absence from the curricular aspects on the fieldtrip reduces the impact of media coverage on School District’s claimed interests.

We weigh these small occurrences with Riley’s keen interest in participating in controversial and unique political discourses on his own Twitter account. These tweets, which contribute to public political discourse, are entitled to “special protection”.

These considerations mean that the School defendants cannot justify their adverse actions against Riley plaintiffs in summary court. There is an historical issue about the level of controversy that arose from the speech. However, it does not support the School defendants adverse action if the record is as it currently stands, which can be viewed most favorably by the Riley plaintiffs.

However, we reject the Riley plaintiffs argument that partial summary judgment is available on their claims for damages against Elsasser or Nemer. The facts are presented in the most favorable light for the defendants. However, the material issue regarding Riley’s tweets causing disruption to the School district remains.

The court dismissed the argument of the defendants that they could not be held responsible for unconstitutional reprisals because their actions were government-protected speech.

The government has broader authority to regulate its own speech, or speech that a reasonable observer may view as the government’s own, but not speech that cannot be reasonably viewed as coming from the government….

[But a]The information and speech Riley’s Farm gives to children is part of their school’s curriculum. However, School District Speech Judges have not ruled that Riley’s Farm made the offensive tweets. Riley made all of the offensive speech that the School District deemed offensive via his Twitter account. Riley’s tweets didn’t mention either the School District, or field trips. It is not clear that Riley’s speech was interpreted by an objective observer as being the speech of the School District. Even if the School District was correct in claiming that Riley’s speech about the field trip location is government speech protected, there are no pedagogical concerns here since Riley wasn’t speaking on behalf or for the School District.