The Volokh Conspiracy
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School Contractor Allegedly Fired for Complaining About Drag Show for Students in Grades 7-12
A federal court has allowed the contractor's claim to go forward, denying defendants' motion to dismiss (though of course the facts remain to be ascertained at trial or summary judgment).
From Monday's decision by Judge Edmond Chang (N.D. Ill.) in Lopez v. Fasana:
[According to the Complaint,] April Lopez worked at Disney II Magnet High School as a chief engineer from October 2021 through April 2023. Although the school takes the name "High School," the school teaches students from Grade 7 through 12. She was not a direct employee of the Chicago Public Schools system; instead, she worked for Eco-Alpha, a subcontractor of Jones Lang LaSalle (the giant real-estate services company).
During the early morning of April 28, 2023, before students arrived at school, Lopez saw a poster for a drag show for students posted in a hallway. She said to one of her colleagues, "I cannot get on board with that." Vice Principal Matt Fasana overheard the comment and "expressed anger at her point of view." Then, later that morning, Lopez approached Fasana and directly "expressed her concern over having a drag show at a school with children as young as 12."
That conversation allegedly triggered a series of reports up the command chain—all on the same day, April 28—eventually leading to Eco-Alpha terminating Lopez's employment….
Lopez sued the school officials, and the court allowed the case to go forward:
Generally speaking, government employers may not retaliate against their employees (or contractors) for exercising their right to free speech. {The parties do not dispute that Lopez is a government contractor and her claim receives the same analysis as government employees.} … To plausibly state a claim for First Amendment retaliation, Lopez must allege that her speech was constitutionally protected, that she suffered an adverse action or that she suffered a deprivation likely to deter free speech, and that the protected conduct was at least a motivating factor behind the adverse action….
If Lopez was speaking pursuant to her official duties, then she has no retaliation claim, because that kind of speech—for First Amendment purposes—is considered to be government speech. If, on the other hand, she plausibly alleges that she was speaking as a private citizen on a matter of public concern, then the First Amendment may be implicated, and the next step of the evaluation is commonly referred to as Pickering balancing. At that step, the Court engages in "a delicate balancing of the competing interests surrounding the speech and its consequences," including whether the employee's interest in her speech is outweighed by "'the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'"
[1.] On the threshold requirement, Lopez plausibly alleges that she was speaking as a private citizen, not pursuant to her official duties. On this question, courts consider the context of the speech, including whether the employee engaged in speech "ordinarily within the scope" of her employment, whether the speech was pursuant to government policy or to convey a government-created message, and who was the intended target of the speech. Put another way, did Lopez's not-on-board-with-that comment and the later conversation with Fasana "ow[e their] existence" to her responsibilities as the employee of a government subcontractor?
At the pleading stage, the only answer is no—and clearly so. Lopez was the chief engineer at the school. Nothing in the Amended Complaint suggests that a school engineer's duties include advising or opining on the substance of school programming. So Lopez's speech is not "ordinarily within the scope" of her engineer duties. Nor is there anything in the Amended Complaint hinting that Lopez was speaking pursuant to a school policy or seeking to convey a school-created message—instead, she expressed her own concern about the drag show for students as young as 12. Nor did Lopez connect the concern with her duties, for example, by refusing to work on the set up for the drag show….
Lopez's speech [also] did not owe its existence to her responsibilities as a public employee. It is true that she was in the school hallway and saw the poster while she was at work. But the Supreme Court has held that the test for official-duty-speech is not whether the speech "simply relates to public employment" or—importantly here—"concerns information learned in the course of public employment." … "[T]he mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." …
[2.] [T]he next question is whether Lopez also plausibly alleges that she spoke on a matter of public concern. "Whether an employee's speech addresses a matter of public concern must be determined by the content, for, and context of a given statement, as revealed by the whole record." Generally, when the speech of employees relates to "any matter of political, social, or other concern to the community," then they are speaking on a matter of public concern.
Here, Lopez's comments addressed a public issue: her opinion on what kinds of shows are appropriate for children to view in a school setting addresses a topic of public debate protected by the First Amendment. Indeed, the topic literally is about what should be shown in a public school. It is worth adding that the answer to the public-concern-or-not question does not depend on the viewpoint of the speaker. Consider, for example, if the hallway announcement had publicized the cancellation of a drag show due to parental concerns, and a school engineer expressed her concern to the vice-principal about bowing to that pressure. That speech would just as much touch on a matter of public concern as Lopez's. Based on the limited facts, Lopez spoke on a matter of public concern….
[3.] The final question is whether Lopez's claim survives Pickering balancing. The answer again is yes. Right now, confined to the facts in the Amended Complaint, the scales are tipped entirely in Lopez's favor. Her interest in expressing her opinion on what is appropriate for children to view in a school setting outweighs the needs of the school in carrying out the school system's duties.
Indeed (and not surprisingly), the Amended Complaint contains no allegations at all as to what disruption, if any, was caused by Lopez's speech. Reasonable inferences must be drawn in Lopez's favor, and nothing in the pleading suggests that any students heard her remarks. The overhead comment happened before students arrived. The allegation on the later conversation with Fasana says nothing about anyone else being present for it. There is nothing else about how the comment or the conversation otherwise affected the school day specifically or the school's operations more generally.
At this pleading stage, the Pickering balance is all one-sided in Lopez's favor. It is true that discovery might illuminate more about what Lopez said and more about the effect on the school. The Defendants could then renew their arguments at the summary judgment stage. For now, though, Lopez has more than plausibly alleged a claim for First Amendment retaliation….
And the court concludes that First Amendment protection is so clear (again, assuming all the facts are as Lopez has plausibly pleaded them) that the defendants cannot claim qualified immunity, at least at the motion to dismiss stage.
Seems quite right to me, at least given plaintiff's factual allegations (and the lack, at this stage, of any evidence of substantial disruption). Julie Herrera represents Lopez.
