The Volokh Conspiracy
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Court Voids Discipline of Public School Teacher for Two 2020 Anti-Bernie-Sanders Posts
From today's decision in Caggiano v. Duval County School Bd., decided by Florida Court of Appeal Judge Scott Makar, joined by Judges Harvey Jay and Adrian Soud:
Thomas Caggiano taught mathematics in the public school system of Duval County, Florida, for over twenty-five years with positive employment evaluations and no prior discipline. That was until he made politically tinged Facebook posts that led the Duval County School Board to initiate disciplinary charges against him. Caggiano contests the School Board's ruling that two of his posts violated the teacher code of conduct thereby justifying a three-day suspension, a reprimand, and diversity training….
The School Board asserted that seven of Caggiano's posts [posted around the time of the 2020 election] violated the teacher code of conduct. The hearing officer characterized the posts/reposts as "memes," describing them as "amusing or interesting pictures, videos, etc., that are spread widely through the internet or social media—or comments to memes or articles."
The hearing officer (also referred to as an administrative law judge) found that two of the seven posts did indeed violate the teacher code of conduct:
[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!" ….
The administrative law judge concluded that the two "Facebook posts or reposts concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped." On that basis, the administrative law judge concluded that Caggiano violated the teacher code of conduct because he:
- Failed to exercise best professional judgment and integrity.
- Failed to maintain the respect and confidence of his colleagues, students, and parents, as well as failed to sustain the highest degree of ethical conduct.
- Failed to make reasonable effort to protect students from conditions harmful to learning and/or to the students' mental and/or physical health and/or safety.
- Intentionally exposed students to unnecessary embarrassment or disparagement.
- Failed to take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which he is affiliated.
- Engaged in "immorality," which is "conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual's service in the community."
- Engaged in conduct that denigrates or shows hostility or aversion toward an individual because of his/her actual or perceived identity with regard to gender….
The court held this violated Caggiano's First Amendment rights:
At the outset, it is important to emphasize that the charges against Caggiano involve no use of school resources, no communications or contact with students, and no improper conduct on or with school property; they do not involve false or defamatory statements about the school district, administrators, teachers or students; they do not involve matters of school administration. The swirl of controversy about Caggiano's treatment of a transgender student formed no basis for the charges against him; the School Board chose not to pursue sanctions for the incident, which plays no role in this appellate proceeding. Instead, the disciplinary charges involve only Caggiano's two Facebook posts made from his own personal computer, which were both reposts of third-party content that was derogatory of a candidate in the 2020 Presidential election, Senator Bernie Sanders….
The two-part [First Amendment test for government employee speech] that has evolved is whether (a) the employee spoke on a matter of public concern (i.e., one of significance or importance in society at large), and, if so, (b) whether the employee's right to free speech outweighs the employer's interest in an efficient workplace without disruption…. This two-part judicial analysis is known as the Pickering-Connick test ….
Caggiano's two reposts and his accompanying commentary address a matter of public concern: a Presidential candidate. The Fox News screenshot from the Jesse Watters show depicted a vulgar statement made by Senator Bernie Sanders at a time when he was a college student. The statement was newsworthy because it reflected poorly on the candidate and his judgment. Caggiano's comment that "Bernie said this!" merely expressed his surprise at the statement.
Likewise, the repost of the Bernie 2020 T-Shirt schtick is clearly political humor that is derisive of the candidate; its purpose is to commentate in a humorous (to some) manner that Senator Sanders was lacking support, perhaps even within his own ranks. It is hard to imagine, as the School Board did, that this type of attempt at humor was anything more than an innocuous political joke fallen flat.
Because the two reposts involved a matter of public concern, the next question is whether they presented a risk to the School Board's interest in running an efficient workplace that is free of disruption. On this point, no evidence was presented that the two reposts had any meaningful impact on the School Board's operations or that they created any disruption. Indeed, the bulk of the evidentiary focus was on Caggiano's other posts (that were deemed non-actionable) and the uncharged incident involving a transgender student. Next to no evidence exists that anyone had ever seen the two posts, let alone been offended to the point that the school workplace was potentially disrupted in any way.
The notion that Caggiano was himself encouraging violence by reposting the Bernie 2020 T-Shirt joke or was degrading women by reposting the Fox News screenshot is wholly insupportable and wildly off-the-mark. At best, the reposts demonstrated that Caggiano disliked Senator Sanders (for his use of sexist language) and was amused by sophomoric humor (that in no way promoted violence). The posts occurred outside of the school, on Caggiano's own time and computer, and amounted to little more than harmless political chitchat; they collectively amounted to the proverbial hill of beans.
Because Caggiano's two reposts involved a matter of public concern, and the School Board entirely failed to show any risk or actual disruption of its operations due to the reposts, the Pickering-Connick balance tips entirely in Caggiano's favor….
Jason E. Bloch and Kelly B. Mathis represent Caggiano.
