A Texas Educational Aide Posted About CBD on Facebook. Someone Complained. Then the School District Fired Her.
Kerri Owens' firing from her job at Allen High School may well be a First Amendment violation.
One Sunday night in May 2019, Kerri Owens—a special education paraprofessional who works with disabled students at a high school in Allen, Texas—posted a graphic on her Facebook page lauding the supposed health benefits of cannabidiol (CBD), a non-intoxicating chemical compound derived from hemp and cannabis plants. One week later, she lost her job. She believes the CBD graphic was the reason.
"Is CBD good for you?" read the graphic. It then answers its own question. "Well your body has an endocannabinoid system. It doesn't have a Zoloft or ibuprofen system. Case closed."
At the time, Owens was suffering from severe migraines which traditional treatments had failed to alleviate.
She had heard positive things about CBD's healing potential, and thought she'd solicit feedback about its efficacy from her Facebook friends by posting the image.
When she went into work on Monday, she was called into the principal's office and told she was being placed on administrative leave. Someone had complained about her Facebook post, she says she was told, and the school was sending her home so they could conduct an investigation.
"At the time of the post I had not used the product. I had not purchased them. I had not sold any," says Owens, a fact she says she stressed repeatedly to school officials. She also insisted that the products she was looking for information on were legal and easily available at pharmacies and gas stations across the state. (At the time of her firing, CBD products were both illegal and widely available at retail outlets. More on that later.)
Her pleading proved ineffective. After a week-long investigation—during which time she was told not to contact the disabled student she had been assisting for the past three years or anyone else from the school—Owens was fired.
Owens says school officials told her in a face-to-face meeting that the Facebook post demonstrated bad judgment, and had only served to encourage CBD use among students.
In a May 17 termination letter, the school district identified two ethics code requirements Owens allegedly violated: a clause forbidding educators from engaging in illegal activity, and another requiring that employees "shall be of good moral character."
"I worked there for three years. Never had issues with my employer," Owens tells Reason. "It was really a surprise to me that they wouldn't have tried to talk to me about it or give me some other kind of disciplinary action besides just fire me."
The school district declined to speak with Reason for this story, or even confirm that Owens was fired.
However, in response to a request for records related to Owens' firing, the district did provide a copy of her termination letter along with another letter from one week prior stating Owens was being placed on administrative leave. These two documents confirm the sudden nature of Owens' termination.
Reason's records request also produced a copy of some printed materials about CBD that Owens brought to her H.R. meeting with Melissa Cobb, the official who later signed the termination letter.
Owens said she brought the printed materials into her H.R. meeting—which occurred after her suspension—with the hope of proving that the products she had been discussing on Facebook had no THC in them.
In response to a request for comment, school district spokesperson Tim Carroll said the district "does not comment on personnel matters so we are unable to provide additional information other than the fact that she was a paraprofessional at-will employee with the district."
Owens' firing rankles her. It also upsets the student she was working with.
During her three years at Allen High School, Owens had worked exclusively with a single student, Jocelyn, who is confined to a wheelchair, is non-verbal, and also has trouble writing quickly. Since 10th grade, Owens assisted her in taking notes, completing in-class assignments, and getting from class to class.
Owens was like Jocelyn's "school mom," Michelle Martinez, Jocelyn's mother, says. "They fought just like mother and daughter, but she held Jocelyn to a high accountability."
When Owens suddenly stopped showing up to work without explanation, Jocelyn was frustrated and confused, says Martinez. Normally when Owens was going to be absent, she would text Jocelyn or her mother. Despite texting and calling her, however, Martinez says she heard nothing from Owens.
Martinez also heard nothing from the school. No one bothered to tell her that Owens had been let go, and it took almost two weeks of calling the school before someone even got back to her. Even then, it was only to inform her Owens was no longer with the school district.
The sudden, unexplained absence of Owens also came right as Jocelyn, then a high school senior, was about to take her final exams before graduation.
"The way Kerri knew how to help her and the way she was let go at the last minute—it caused stress on my daughter," Martinez says. "When you're dealing with special needs kids you can't just change something and not let anyone know."
It wasn't until after Owens' firing that the two were able to speak. Martinez says she was shocked to hear about the reason for Owens' termination.
"I didn't know what CBD oil was. Never even heard of it," says Martinez. "As I started doing research and looking it up and seeing it on every corner it just blows my mind that that is the reason they say I guess they let her go."
Martinez says that in general the school district has been very supportive and accommodating of her daughter over the years, but when it came to Owens' firing, she thinks they dropped the ball.
Owens, too, is angered by the fact that she was seemingly let go just for asking about products she says are totally legal.
The actual legal details are more complicated. At the time of her firing in May, CBD was illegal in Texas. But Owens' confusion about CBD's legality is understandable. Thanks to changes in federal law in 2014 and 2018, CBD derived from hemp that contains less than .3 percent THC—the compound in cannabis that gives it its intoxicating effects—was legalized at the federal level.
This led to the proliferation of CBD-infused products across Texas even though state law still technically prohibited them. In June, about a month after Owens was let go, Texas Gov. Greg Abbott signed a bill bringing state law into conformity with federal regulations, officially legalizing CBD.
Whether or not CBD was legal, however, is irrelevant to the school's decision to fire Owens over a Facebook post about the chemical, says Eugene Volokh, a law professor at the University of California, Los Angeles.
Volokh notes that the free speech protections of the First Amendment should generally prohibit government employees from being terminated for private social media posts. (Reason hosts Volokh's legal blog, The Volokh Conspiracy.)
"There are three elements to the test for First Amendment protection for government employees speaking and wanting to be protected from retaliation from their employer," says Volokh.
The first is whether the speech happened on the job or not. School boards can generally dictate what teachers say in the classroom, but not in their private lives.
The second element to consider is whether the speech being made relates to a matter of public concern. Speech about pressing debates about politics and science—say about whether CBD should be legal or whether it has health benefits—are afforded greater protections than would commentary about one's private life or activities, says Volokh.
The final thing to consider is whether a public school employee's speech creates serious problems in the classroom. A government worker, Volokh notes, could still hypothetically be punished for their off-the-clock speech about an issue of public concern if that speech could be shown to be disruptive in the workplace.
"If all three elements are satisfied—if this is speech that is not part of the person's job, it's speech on a matter of public concern, and it's speech that the value of which is not outweighed by its disruptiveness—then, in that case, an employee cannot be fired for this or otherwise disciplined for this," he says.
The version of events that Owens describes, Volokh says, suggests that the Allen Independent School District violated the First Amendment in firing her.
The Facebook post is clearly private, off-the-job speech that is also "relevant to this debate about whether or not to legalize" CBD, says Volokh, adding that "I'm inclined to say that it would be hard to show for the school any real disruption from this."
Indeed, the only disruption, in this case, appears to have come not from Owens' Facebook post, but the firing that followed.
Owens says that she has retained a pre-litigation attorney and wants compensation for what she considers an unjust termination. (Owens' attorney declined Reason's request for comment.) The school district has so far been willing to offer her a positive letter of recommendation—but only if she agrees not to sue, Owens says.
She says that doesn't seem like enough, given the circumstances of her firing. Owens is considering getting her full teaching certificate and worries her termination might affect that. She is also upset that the termination prevented her from helping Jocelyn right as she was finishing school.
"I got really close to her, working with her for three years," says Owens. "She was getting ready to take her finals and graduate and I was unable to help her participate in any of that…It just seems crazy to everybody I've talked to about it."
