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Free Speech

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

The Ninth Circuit decides the Riley's American Heritage Farms case.


From Judge Sandra Ikuta's opinion today (joined by Judges Mark Bennett and Ryan Nelson) in Riley's American Heritage Farms v. Elsasser:

This case involves a school district that severed its longstanding business relationship with a company that provides field trip venues for public school children. The school district took this step after the principal shareholder of the field trip vendor made controversial tweets on his personal social media account, and some parents complained.

In response to the school district's adverse action, the field trip vendor and its shareholder sued the responsible public school officials under 42 U.S.C. § 1983 for violating their First Amendment rights. We conclude that there is a genuine issue of material fact whether the plaintiffs' First Amendment rights have been violated, but the school officials are entitled to qualified immunity as to the plaintiffs' damages claims because the right at issue was not clearly established when the conduct took place. 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 is one of the principal shareholders of Riley's American Heritage Farms ("Riley's Farm"). Riley's Farm provides historical reenactments of events such as the American Revolution, the Civil War, and American colonial farm life for students on school field trips, and also hosts events like apple picking. 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….

As of August 2018, Riley and Riley's Farm maintained separate social media accounts, including accounts on Twitter. Riley used his personal Twitter account to comment on a range of controversial topics, including President Donald Trump's alleged relationship with Stormy Daniels, President Barack Obama's production deal with Netflix, Senator Elizabeth Warren's heritage, and Riley's opinions on gender identity. Some of Riley's controversial tweets included the following:

  • 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'm running around; I'm treating the various desk lamps like mesquite campfires. You can probably hear it in Oklahoma. #ScotusPick
  • A friend saw an ice sculpture of Kirsten Gillibrand at a Democratic fundraiser. She actually looked more human that way—a bit more color in her cheeks.
  • So I'm planning a high school reunion and I just realized we may have been the last generation born with only two genders.
  • "Missing ISIS" Heartwarming story of a former Jihad fighter, now readjusting to life as a BLM protester.

Riley's tweets did not appear on any of Riley's Farm's social media accounts or web site. Nor did Riley's tweets reference Riley's Farm or anything related to the School District or school field trips in general.

In August 2018, a parent of a kindergarten student at Chaparral Elementary School (one of the schools within the School District) sent an email to her child's teacher, Michelle Wayson, regarding an upcoming field trip at Riley's Farm. The parent's email included screen shots of Riley's tweets, and stated "I do NOT feel comfortable with my son patronizing an establishment whose owner (and/or family/employees) might be inclined to direct bigoted opinions towards my child or other vulnerable children in the group." Wayson forwarded the parent's email to the school principal, Ann O'Connor. Because all four of Chaparral's kindergarten classes were scheduled to attend an apple-picking tour at Riley's Farm in October 2018, O'Connor asked Wayson to discuss the parent's concern with the other three Chaparral kindergarten teachers and to determine whether alternative field trip venues would be more appropriate. Brenda Hamlett, the principal of Sumner Danbury Elementary School (also in the School District), reported that multiple parents subsequently asked her to excuse their children from attending field trips at Riley's Farm or choose an alternative field trip venue.

Around the same time, Lee Kane, a parent whose children had attended schools in CUSD, saw a Facebook post discussing Riley's tweets. In September 2018, Kane sent a copy of the Facebook post to David Nemer, one of the School District's board members, and expressed concern about the School District sending field trips to Riley's Farm "in light of a public controversy surrounding tweets" made by Riley.

The same day, Nemer forwarded Kane's complaint to James Elsasser, the superintendent of the School District. Nemer told Elsasser: "There is concern on Facebook about some extremely inappropriate and unacceptable tweets by the owner of an establishment in Oak Glen that has apparently been visited by CUSD field trips." In that same email, Nemer further described Riley's tweets as "obnoxious" and "bigoted." Nemer followed up his email to Elsasser with a second email stating, "I think many of our stakeholders would be uncomfortable with these tweets." {At his deposition in this case, Elsasser later agreed that he considered some of Riley's comments to be "racist, sexist, or homophobic."}

Two days later, Elsasser and School District administrators met to discuss parent concerns regarding field trips to Riley's Farm. Elsasser asked the administrators to speak with the teachers at their schools to determine whether any of them wanted to continue patronizing Riley's Farm. O'Connor then emailed the Chaparral kindergarten teachers and instructed them to "find another alternative" for the field trip that would not give rise to parental complaints.

The following day, the Redlands Daily Facts (a local newspaper) published a news article about Riley and his Twitter posts. The article was titled: "These tweets sparked social media outcry against owner of Riley's Farm in Oak Glen." The article noted that some community members were disgusted by Riley's alleged white supremacist views espoused in his tweets, and that Riley's tweets had been shared over 1,300 times on Twitter.

Because no administrator, teacher, or staff member expressed a desire to continue going to Riley's Farm, Julie Olesniewicz, the Assistant Superintendent for Educational Services, sent an email to the principals of each of the School District's elementary schools "asking that no CUSD school attend Riley's Farm field trips" and offering alternative options for the field trips. The parties dispute whether Olesniewicz's guidance is still in place….

The court held that Riley Farms was essentially a government contractor, so the usual test for government retaliation based on government employees' or contractors' speech applied:

"'[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions' for engaging in protected speech." Nieves v. Bartlett (2019). "If an official takes adverse action against someone based on that forbidden motive, and non-retaliatory grounds are in fact insufficient to provoke the adverse consequences, the injured person may generally seek relief by bringing a First Amendment claim."

Despite this general rule, the Supreme Court has recognized that the government may impose "certain restraints on the speech of its employees" that would be "unconstitutional if applied to the general public." As the Court explained, the government has "interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." "[T]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer." The government's power to impose such restrictions, however, is not unbridled. Government employees cannot "constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest."

In Pickering, the Court set out a framework to balance the competing interests between the government employer and employee. This framework (sometimes referred to as the Pickering balancing test) "requires a fact-sensitive and deferential weighing of the government's legitimate interests" as employer against the First Amendment rights of the employee. Although the Court first applied this framework to government employees, it extended its application to retaliation cases brought by government contractors because "the similarities between government employees and government contractors with respect to this issue are obvious."

We have further extended the Pickering framework to a range of situations where "the relationship between the parties is analogous to that between an employer and employee" and "the rationale for balancing the government's interests in efficient performance of public services against public employees' speech rights applies." In this vein, we have held that the Pickering framework applied to a retaliation claim brought by a business vendor operating under a contract with the government for weatherization services, to a claim by a domestic violence counselor employed by a private company that performed counseling services for a municipal court, and to a claim by a volunteer probation officer. By contrast, we have declined to apply the 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….

And the court concluded that the plaintiffs could prevail under this test, if the facts are as they allege:

Because the Riley plaintiffs have carried their burden of making a prima facie case of retaliation, the burden shifts to the School defendants to demonstrate that they took the adverse action because they had "legitimate countervailing government interests [that were] sufficiently strong" under the Pickering balancing test to "outweigh the free speech interests at stake."

The government may demonstrate such legitimate countervailing interests by providing evidence that a contractor's expressive conduct disrupted the government workplace through, for example, interfering with the government services or operations provided by the contractor. When asserting such an interest, the government "must demonstrate actual, material and substantial disruption, or reasonable predictions of disruption in the workplace." Evidence that actual disruption has already occurred in the workplace "will weigh more heavily against free speech." But "[t]he employer need not establish that the employee's conduct actually disrupted the workplace—'reasonable predictions of disruption' are sufficient." The government is more likely to meet its burden when an employee's disruptive conduct takes place in the workplace, compared to when the same conduct occurs "during the employee's free time away from the office." While it "may rely on the possibility of future disruption," the government must support its claim that it reasonably predicted disruption "by some evidence, not rank speculation or bald allegation."

Where public school officials assert that their interest in taking adverse action against a plaintiff was to avoid disruption to the school's operations and curricular design, courts consider whether students and parents have expressed concern that the plaintiff's conduct has disrupted the school's normal operations, or has eroded the public trust between the school and members of its community. Because schools act in loco parentis for students, school officials can reasonably predict that parents and students will fear the influence of controversial conduct on the learning environment, The disruption "created by parents can be fairly characterized as internal disruption to the operation of the school, a factor which may be accounted for in the balancing test and which may outweigh a public employee's rights."

The government's evidence of disruption may be deemed substantial if parents are so concerned with controversial conduct that they choose (or threaten) to "remove their children from the school, thereby interrupting the children's education, impairing the school's reputation, and impairing educationally desirable interdependency and cooperation among parents, teachers, and administrators." In this context, the Second Circuit held there was substantial disruption justifying the government's adverse action against a public school teacher who was active in a pedophile association, where nearly 60 parents expressed concern that the teacher's controversial beliefs implicated the safety and well-being of the young students, and hundreds of students staged an assembly to share their views on the controversy. In particular, the court credited the school's claim that substantial disruption to its operations and its relationship with the parents arose from the parents' threats to remove children from school. Despite explaining that the teacher's First Amendment interest in advocating for controversial political change was of the "highest value," the court held that the school's evidence of disruption justified its actions under the Pickering balancing test.

Likewise, the Third Circuit held that where a school received complaints from hundreds of parents about a teacher's blog that criticized her students, the school's assessment that the teacher's expression of disgust towards her students would disrupt her teaching duties and erode the trust between herself and her students (and their parents) counted as substantial disruption to justify terminating her. See also Craig v. Rich Twp. High Sch. Dist. 227 (7th Cir. 2013) (holding that the government had a legitimate interest in preventing disruption arising from parent complaints about a school guidance counselor who wrote a hyper-sexualized advice book for women and dedicated the book to his students).

Applying this framework here, and taking the evidence in the light most favorable to the Riley plaintiffs, the School defendants have failed to establish that the School District's asserted interests in preventing disruption to their operations and curricular design because of parental complaints were so substantial that they outweighed Riley's free speech interests as a matter of law.

First, we give less weight to the government's concerns about the disruptive impact of speech outside the workplace context. Riley's controversial tweets were made on his personal Twitter account, and did not mention or reference the School District or field trips to Riley's Farm in general. There are no allegations that Riley made (or planned to make) any controversial statements during a school field trip; indeed, there are no allegations that he interacted at all with the students during the field trips. Although Riley's tweets became associated with the School District due to some local media attention and posts on Facebook, taking the evidence in the light most favorable to the Riley plaintiffs, the attenuated relationship between Riley's controversial speech and the field trips themselves weighs against the School District's asserted interest in preventing disruption to its operations and curricular design.

Nor has the school demonstrated any actual disruption to its operations arising from Riley's speech. The School defendants have provided the substance of two complaints from parents, only one of which involved a student currently enrolled in the School District. {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.} While Hamlett asserted that multiple parents asked the Sumner Danbury principal to either excuse their children from the field trips or choose an alternative venue, there is no evidence regarding the number of parents or the nature of those complaints. This is far afield from cases where the government gave weight to hundreds of parent and student complaints.

Likewise, the School defendants have failed to provide evidence of likely future disruption that would entitle them to summary judgment as a matter of law. Unlike the evidence in Meltzer, where hundreds of parents threatened to remove their children from school, the record here shows only a handful of parent requests that a child be excused from a single field trip. Such requests do not evidence the substantial disruption that may arise from a large number of parents threatening to remove their children from school.

Although evidence that the media or broader community has taken an interest in the plaintiff's conduct may also weigh in favor of the government's assertion of disruption, the sparse media attention to Riley's tweets demonstrated in the record does not weigh in favor of the School defendants. The Redlands Daily Facts's article about Riley's tweets noted that there was a "social media outcry" against Riley's Farm, and reported that Riley's tweets had been shared some 1,300 times. But there is no evidence in the record that Riley's tweets were covered by any other newspapers or media, and no indication that the tweets received nationwide attention. Compare Munroe (noting that the teacher's controversial blog post was reported by the Huffington Post, and the teacher "appeared on ABC, CBS, NBC, CNN, Fox News, and other television stations," and was interviewed by "several print news sources, including the Associated Press, Reuters, Time Magazine, and the Philadelphia Inquirer"). Although the School defendants presented evidence that a number of district residents or parents commented on the Facebook post discussing Riley's tweets, this evidence provides little support, as the School defendants did not specify the nature or number of those comments. The attenuated relationship between the content of the tweets and Riley's lack of involvement on the curricular aspects of the field trip diminish the impact of the media coverage on the School District's asserted interests.

We balance these minor occurrences against Riley's interest in engaging in controversial, unique political discourse on his personal Twitter account. Those tweets are "entitled to special protection" given their contribution to the public political discourse.

In light of these considerations, the School defendants fall short of justifying their adverse actions against the Riley plaintiffs as a matter of law at summary judgment. While there is a genuine issue of historical fact about the degree of controversy arising from the speech (i.e., the extent of actual and predicted disruption in the learning environment), the record as currently developed, viewed in the light most favorable to the Riley plaintiffs, does not justify the School defendants' adverse action.

On the other hand, these same considerations lead us to reject the Riley plaintiffs' argument that they are entitled to partial summary judgment on their claims against Elsasser and Nemer for damages. Taking the facts in the light most favorable to those defendants, there remains a genuine issue of material fact as to the amount of disruption to the School District arising from Riley's tweets.

And the court rejected outright the defendants' argument "that they cannot be held liable for unconstitutional retaliation because their actions were protected government 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]lthough the information and speech Riley's Farm presents to school children may be deemed to be part of the school's curriculum and thus School District speech, the School defendants do not assert that the allegedly offensive tweets were made by or at Riley's Farm. All of the speech deemed offensive by the School District was made by Riley on his personal Twitter account. His tweets did not mention the School District or the field trips. There is no evidence here that a reasonable observer would view Riley's speech as the School District's speech. Thus, even assuming the School District is correct that the selection of a field trip venue is protected government speech, the pedagogical concerns underlying the government-speech doctrine do not exist here because Riley was not speaking for, or on behalf of, the School District.