Teacher Suspended Partly for Quoting (on Personal Facebook Page) Bernie Sanders' "Woman … Fantasizes Being Raped" Essay

"The undersigned finds that despite Mr. Caggiano's belief that his post makes an important point [criticizing] Bernie Sanders, the undersigned finds that it can be logically read to be patently offensive, discriminatory, and degrading to women."

In 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. The posts were on the teacher's personal page; the page mentioned the teacher's employment in the Duval County schools, like many Facebook pages mention a person's employment. The two posts that the judge said justified discipline were:

(a) A repost from a Facebook entity called "Messenger of Liberty," which states: "My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he's been spit on, punched and had a bottle thrown at him! I'm curious to see what happens when he goes outside." …

(d) A repost from another individual, which appears to be a "screen grab" from a Fox News segment, which states, at the top, "MAN AND WOMAN," and which then states: "A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. 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 on the underlying Sanders essay, see here.) The posts led to a Florida Times Union article and various criticism from the public and from parents:

[36.] After the publishing of the May 21, 2020, Florida Times Union article, school officials, including Ms. Schultz and Dr. Hatcher, testified to receiving numerous complaints. The undersigned received into evidence numerous complaints from parents concerning Mr. Caggiano's Facebook posts …. Some of these parents also testified at the final hearing concerning their complaints and feelings concerning Mr. Caggiano's Facebook activity. These parents testified that they felt Mr. Caggiano's Facebook posts were inappropriate for a teacher.

[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 my posts were either political commentary, social commentary, or adult humor. And that's funny. Okay. So for somebody to look at that and not giggle at least, you know, I don't think you know what funny is. That's funny."

[45.] This particular repost states that, after his son wears a "Bernie" t-shirt, "[s]o far he's been spit on, punched and had a bottle thrown at him." Although Mr. Caggiano testified that he believed this to be "funny," the undersigned finds that it also could be logically read to encourage violence against a child.

[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.] On cross-examination, when asked if "women, teenage girls, could be offended by this post[,]" Mr. Caggiano testified, "I think everybody should be offended by this." The undersigned finds that despite Mr. Caggiano's belief that his post makes an important point about Bernie Sanders, the undersigned finds that it can be logically read to be patently offensive, discriminatory, and degrading to 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.] The two posts at issue concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped. Mr. Caggiano candidly admitted that the post concerning women was offensive. The undersigned finds that these particular posts violate some of the governing laws, rules, and policies alleged in the Amended Step III Progressive Discipline correspondence.

[65.] The School Board established, with respect to the two aforementioned Facebook posts, that Mr. Caggiano's conduct constituted "potential harm to the physical and mental wellbeing of a student, or students[,]" and "behavior that impairs the employee's effectiveness in performing her/his duties, professionalism, and confidence in the eyes of the 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….

Seems very hard to justify to me, but of course the Pickering test for government employee speech is notoriously vague (partly because it's the one First Amendment test that overtly calls for "balancing") and notoriously open to heckler's vetoes.

It's apparently now up to the school board to decide whether to accept the ALJ's order; Caggiano has filed exceptions to the order, which the school board is now considering, and there may ultimately be an appeal to state court as well.

Comments

[Jaypd]

That's it? You find it hard to understand how a public school can justify suspending a teacher for posting offensive political postings on a private facebook page they left open to the public.

Maybe Tinker wasn't just about students rights beyond the schoolhouse gate?

[Noscitur a sociis]

I mean, Tinker clearly wasn't about rights beyond the schoolhouse gate....

[DaivdBehar]

Zero tolerance for feminism, and for their male running dogs. This school district should be totally defunded.

[M L]

Maybe Bernie Sanders should be suspended from the US Senate, too.

[M L]

"he's been spit on, punched and had a bottle thrown at him!"

An extremely common cultural scene of recent years, with every appearance of "Antifa," regularly featured by "counter-protestors" etc.

Not easy to bring levity to this through comedy. If you make an attempt . . . . "the undersigned finds that it also could be logically read to encourage violence against a child."

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Try finishing the full quote next time.

My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he's been spit on, punched and had a bottle thrown at him! I'm curious to see what happens when he goes outside.

Implying, for the hard of thinking, that the spitting, punching, and bottle throwing happened inside his home. It's called sarcasm.

[Longtobefree]

Sarcasm is now also known as prophecy.

[bevis the lumberjack]

I thought that “a” was at least mildly witty and amusing. At no point was I concerned that any child, including his son, was actually being abused.

“B” was gross and ridiculous, but assuming the quote is accurate that’s on Bernie, not the teacher. I personally wouldn’t repeat it publicly, but that’s a call the guy in and tell him it’s bad pub for the school thing.

This is a superintendent who can’t separate his politics from his job.

[M L]

I think you may have missed what I was trying to say.

[MatthewSlyfield]

I think that whatever you were trying to say is about as clear as black mud.

[M L]

My bad. The "undersigned" woke leftist doesn't seem to comprehend comedy. Comedy often takes uncomfortable realities--such as the current cultural scene of people being beaten, hit with bike locks, spit on and having bottles of urine and such thrown at them for their political speech and expression--and tries to bring humor out of it.

It seems ironic, or maybe not ironic but fitting, that this nastiness is coming from the woke left, while the woke left also not only fails to comprehend comedy coming out of it, but condemns that comedy as furthering the very same nastiness, which they also consistently fail to condemn.

[Eric VonSalzen]

1. Any hearing officer who, in an official order or ruling, refers to him/her/their self as "The undersigned" should be fired.
2. Even school personnel should be permitted to have a life outside of school.
3. The first post IS funny. The second one isn't, but it's relevant that/if it came from Bernie. Being a school employee shouldn't prohibit you from commenting on a public official.

[Michael P]

The oversigned agrees entirely to all of those points.

[AmosArch]

No fan of Bernie, and he'll probably lie and deny he ever said it but as controversial as rape fantasies are doesn't mean they don't exist. And as long as there isn't any actual rape I don't see anything wrong or any need for any man or woman to be ashamed about having a particular fantasy.

[DaivdBehar]

Women dream of being ravished by the man they really like. They do not really want to be raped.

[Jmaie]

Huh. I just assumed from your username and comments that you were male, but obviously not. Otherwise you would certainly not choose to mansplain about what women truly want...

[Krayt]

So you support silencing opinions so yours can win?

[Jmaie]

??

[DaivdBehar]

I have consorted with a few women. They could not get enough of the alpha in male. Alpha is addictive to normal females. Alpha makes women thank God they were born female. The neighbors do look at you funny.

[DaivdBehar]

Jmaie, if female, ask Volokh for my email address.

[Armchair Lawyer]

And thus, Rule 6 of Social Media and Facebook is enforced.

"Never post anything that can be easily tracked back to you"
(Except kitten photos. Cute Kitten photos are acceptable, always).

[Toranth]

"Those cute kitten photos are spreading misinformation!"

Ain't nothing safe these days.

[AmosArch]

Never post anything that can be easily tracked back to you...if you are a conservative or someone the Left does not like

FTFY

[MatthewSlyfield]

Just because they like you this week doesn't mean they won't hate you next week.

[Archibald Tuttle]

Bernie has a lot of dark history from the days when he ran for office from the Liberty Union Party. I'm sure that his campaigns have been working for decades to scrub the record of things he said and did.

[eyesay]

" I'm sure that his campaigns have been working for decades to scrub the record of things he said and did." How does that work? Anything that's already in the print archives in all the libraries is just going to stay there. Anything that's online is going to stay there too, and if Sanders ask anyone to remove something, chances are good that all that does is create new attention to whatever it is Sanders is trying to hide. Unless you provide evidence, I will assume your speculations are groundless.

[jimc5499]

Ever go to the Overlawyered website when it was up? Back about 2008 there was an issue about lead in the ink some books were printed with. It was primarily focused on children's books, but, some libraries took it upon themselves to go through and eliminate "certain" books.

[The Turtle Dove]

I could understand an institution of higher learning offering a course of study in "Cultural Diversity," or "Diverse Cultures," but compelling attendance at a class studying "Culture Diversity" seems a bit barbarian. "Economy Prosperity?" "Politics Integrity?"

Mr. D.

[Krayt]

Like mandatory volunteerism to gradumicate.

It makes perfect sense...if you are the dictator.

[Longtobefree]

We need to apply common sense social media control and ban facebook.

[Cal Cetín]

What if you have a fantasy that an elderly socialist is raping your wallet?

[Bored Lawyer]

That ain't fantasy, bud.

[Rev. Arthur L. Kirkland]

Here's one Prof. Volokh might overlook (because it would not lather clingers into a grievance-consumed rage concerning 'all this damned progress').

[TwelveInchPianist]

Teacher fired for teaching poorly? Yeah, that's not going to lather anybody up.

[TwelveInchPianist]

Except maybe those who want kids to be poorly taught, like Arthur. How come you guys are getting rid of advanced math in high school, Arthur? And Algebra in middle school?

[jimc5499]

They say that Math is "racist". I'm pretty sure that engineering failures don't care who they kill or injure.

[Stephen Lathrop]

jimc5499, do you include among, "engineering failures," the malfunctions of AI facial recognition software, when it falls short as it struggles against racial stereotyping?

[eyesay]

Thank you, Arthur, for spotlighting the story of Virginia teacher Matthew Hawn, who was popular among conservative students precisely because he gave them the opportunity to hone, think, and rethink their views. When I was in high school, my teacher in Problems of the Twentieth Century was more conservative than the median student, and he was popular because he challenged liberals in ways similar to Hawn. I don't think anyone wanted my teacher fired just because he was a bit conservative.

[Rev. Arthur L. Kirkland]

Mostly, I was pointing toward the misleading, cherry-picked, often hypocritical nature of Prof. Volokh's contributions to this White, male, right-wing blog with a scant academic veneer and the misappropriated franchises of several legitimate law schools.

[croaker]

And this is why you and your fellow travellers will end up with green cards after the revolution.

[Stephen Lathrop]

Perhaps Professor Volokh would share his view with regard to perusal of social media accounts prior to hiring a new teacher. If they indicate views likely to antagonize students or parents, is it okay to use that as all or part of a decision not to hire that teacher? How about a school superintendent? Any difference there?

More generally, what should the policy be if a public school employer adopted a policy that Facebook publications by teachers were to be kept within the same bounds of decorum that the school enforced in the school? Does it matter if it is a public school? What about a private school? What about private employers generally? All free to demand decorum (however defined) in the publications of their employees?

[Don Nico]

Stephan,
Those of us on hiring and search committees, are at least frequently, if not always, reminded to watch training on and take self-testing related to uncovering hidden biases. More, we are or should be thoroughly trained in what lines of inquiry that we are legally allowed to follow in interviews with job applicants. Unfortunately, the increasing use of search through private social media accounts permits and even encourages, hiring committees and officials to give full voice to hidden or undisclosed biases that could easily be the basis for tort claims were the same information actually disclosed as their line of inquiry in an interview.

Such potentially tortuous behavior is not a matter of whether the firing entity i public or private. It is a practice that should be roundly criticized even as it becomes more and more common. In the final analysis it is a cancer on the liberties that Americans have been used to assuming that they had.

[Stephen Lathrop]

Don Nico, perhaps Professor Volokh could constructively be consulted on the question whether private views freely published by job applicants for teaching or school management positions are fair game for search committee review.

More generally, are there other government employees, outside of the education field, who are typically held to constraints on their private publications, on pain of discipline. Certainly, we know that applies among the intelligence community. Does the military tolerate from its officers unfettered publication of views against civilian control of the military, for instance? Would it be problematic for employees of the Department of Agriculture—with grant making authority or loan authorizations to extend to farmers—to publish personally their racist hostility toward blacks?

More generally still, why would anyone suppose—although millions obviously do suppose—that publishing world-wide their personal views contrary to the interests of their employers would be treated indulgently. Is it your view, Don Nico, that the 1A requires that kind of indulgence?

[Dave_A]

Private employers - including private schools - have much greater latitude to discipline employees over speech... No 1st Amendment issues to worry about - just avoid firing someone over membership in a protected class (which doesn't include political viewpoint) & you're good.

A public school, being a government agency, must respect the 1st Amendment & thus is more limited in what actions it can take over political speech.

[croaker]

Unless you're in California, where political viewpoint is a protected class, in theory anyway.

[Squirrelloid]

Who the heck is reading their kid's teacher's facebook page in the first place? People need hobbies.

And what does 'Culture Diversity' have to do with... whatever this teacher did wrong? How is that a remedy to anything here? (Let's just pretend that a legitimately funny joke and a quote of a sitting senator's old essay are punishable offenses... how do either of them get corrected by a class on 'Culture Diversity'?)

[Ed Grinberg]

They should just call it "a course in Political Correctness."
Much (most?) K-12 education is exactly that. By the time you get to college, you're expected to fully conform to Political Correctness; violators are harshly disciplined. "Progressives" and "liberals" would like to impose this regime nationwide, with criminal penalties for transgressors.

[tkamenick]

An ALJ wrote this? Dang. I thought it was the school board itself after a hearing. Wow this is bad.

[croaker]

Don't worry, I'm sure a real judge will be handy with a few benchslaps when the case reaches his bench.

[Seamus]

This particular repost states that, after his son wears a "Bernie" t-shirt, "[s]o far he's been spit on, punched and had a bottle thrown at him." Although Mr. Caggiano testified that he believed this to be "funny," the undersigned finds that it also could be logically read to encourage violence against a child.

If the undersigned finds that, then the the undersigned is an ass--an idiot.

[Krayt]

The letter should lead to firings indeed.

[Jmaie]

I see my comment was misunderstood, my intent was to mock the current hysteria constraining comment by anyone not having the appropriate "lived experiences." Humor fail, mea culpa.

To the meat of the matter, I make no protest nor claim that Daivd is incorrect. In fact, my memories of the dating scene (thankfully long ago) agree to a certain extent - the biggest assholes tended to the most successful at pickups. As one comedian said - "To all the ladies complaining about guys being assholes - if there wasn't a demand there wouldn't be a supply."

Cheers.