The Volokh Conspiracy

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Free Speech

Coach Can't Be Fired Just for Publicly Criticizing School's "Diversity, Equity, Inclusion" Turn, But Can Be …

fired for doing so in a way that includes a "personal ... attack on [the superintendent's] integrity.


From Flynn v. Forrest, decided Monday by Judge Indira Talwani (D. Mass.):

Plaintiff David Flynn, the former Dedham high school football coach, brings this action against Defendants Michael Welch, Jim Forrest, and Stephen Traister for violation of his First Amendment rights. He alleges that Defendants' decision not to renew his coaching contract was based explicitly on his statements to members of the school committee and several concerned community members about his daughter's middle school social studies curriculum. Defendants move for summary judgment…

The following facts are drawn from the summary judgment record and are construed in the light most favorable to Flynn, the non-moving party.

Welch is the superintendent of Dedham public schools. Forrest is the principal of Dedham high school, and Traister is the athletic director.

Flynn is a Dedham resident, and between 2011 and 2019, he was the head football coach for Dedham high school…. That same fall, Flynn's two children were enrolled in the Dedham public schools.  His daughter was in seventh grade at Dedham middle school…. [Flynn and his wife had objections to the school curriculum and a teacher's behavior, and aired them with Welch, but didn't get what they saw as an adequate response.] Flynn [then] sent an email to several members of the Dedham school committee, as well as his family and friends. A member of the school committee forwarded the email to Welch.

In the … email, Flynn expressed his belief that Welch had called the meeting only to be able to say that he had listened to the Flynns, not to try to keep the Flynns' children in the Dedham public schools. Flynn came away with the impression that Welch and Dedham public schools "seem[ed] to be supporting the BLM movement." Flynn summed up his meeting with Welch as follows:

  • [Welch] supports BLM
  • He thinks Dedham is "Astronomically White"
  • He allows politics in the classroom
  • He thinks every employee of the schools need to be taught how to care for, communicate with and understand the lives of people from all races/cultures.
  • He has a goal to [hire] more "non-white" teachers
  • He did not care that my daughter is scared when she sees the BLM logo in her class
  • He did not care that I expressed how much it hurts me to have to remove my children from the schools I attended in the town I grew up in
  • He did not care that his teachers are indoctrinating 12 year old children
  • He did not care that the Middle School Principal lied to us twice
  • He did not care that the school system still has not provided important information on the new controversial classes they are pushing on our kids
  • He doesn't care about the people in this town.

He concluded that Welch was "not willing to compromise" and that "if the teacher [taught] the course objectively and remove[d] the BLM logo from the class, people w[ould] soon get over the fact that the class was purposely created without notifying parents and without having a visible course curriculum, syllabus and learning objective."

In reviewing Flynn's email, Welch became concerned that given these public statements about the school district and Welch, Flynn could no longer represent Dedham high school as the head football coach…. A letter to that effect … was then mailed to the Dedham high school football players and their parents. The letter stated:

We are also writing today and are sorry to inform you that Dave Flynn will not be reappointed as the Head Coach of Dedham High School football. We met with Mr. Flynn today because he has expressed significant philosophical differences with the direction, goals, and values of the school district. Due to these differences, we felt it best to seek different leadership for the program at this time….

The court concluded that Flynn was speaking as a citizen, not as part of his job, and was therefore presumptively eligible for First Amendment protection against retaliation by his government employer; but the presumption was rebutted here (I oversimplify slightly) because the speech was sufficiently disruptive:

However, "termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong" to outweigh the free speech interests at stake. "[G]overnment interests outweigh First Amendment rights when employee speech prevents efficient provision of government services or disrupts the workplace." "In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." As such, the court must analyze "whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise" [the so-called Pickering balance -EV].

Defendants argue that Flynn's October 22, 2020 email hindered the efficient operation of the school system and its educational mission where Flynn's views directly contradicted the Dedham public school system's goals of advancing diversity, equity, and inclusion. Defendants claim that these "irreconcilable philosophical differences" justify not reappointing Flynn because, although he did not teach, Flynn's consistent contact with students would allow him to undermine the school's curriculum and values….

But mere disputes over policy, without more, cannot outweigh Flynn's free speech interest; the right to express such disagreement is at the core value protected by Free Speech Clause of the First Amendment. Indeed, the Supreme Court has warned that "[v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech."

But Flynn did not merely criticize the school district's curriculum or values; he also criticized Welch for promoting that curriculum and values. Flynn charged Welch with "not caring" about numerous matters, concluding that Welch "doesn't care about the people in this town." "[A]s a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees[.]" Nonetheless, under Pickering, the court must give "full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." And an employer need not wait for "events to unfold to the extent that the disruption of the office and the destruction of the working relationships is manifest before taking action." See Waters v. Churchill (1994) ("potential disruptiveness" sufficient to outweigh First Amendment value in a nurse's statement critical of her supervisor and hospital's obstetrics department because it could discourage individuals from working in that department and undermine management's authority).

And finally, of relevance here given the personal nature of Flynn's attack on Welch's integrity, "[t]he First Amendment notwithstanding, a supervisor is entitled to a modicum of respect and decorum in work-related situations." Where the summary judgment record is undisputed that Welch was concerned that, given the public statements about the school district and Welch in the … email, Flynn could no longer represent Dedham high school as the head football coach, Flynn's personal attack of Welch is not entitled to First Amendment protection….