The Volokh Conspiracy
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Court Considers Claim of Montgomery County (Md.) Teachers Transferred for Pro-Palestinian Speech Following Oct. 7, 2023
The speech included in-class display of "Free Palestine," e-mail signature saying "From the River to the Sea, Palestine will be free," and pro-Palestinian social media posts.
From Judge Lydia Kay Griggsby (D. Md.) yesterday in El-Haggan v. Bd. of Ed.:
Plaintiffs are public school teachers employed by the [Montgomery County (Md.) Public Schools]. Following the events of October 7, 2023, the Plaintiffs individually expressed their opposition to Israel's response to the terrorist attacks and to the subsequent war in Gaza.
This led to their being transferred to other schools (and, as to two of them, being placed on paid administrative leave). They sued, claiming that, among other things, this constituted unconstitutional retaliation for the exercise of their First Amendment rights. The Court has held that such retaliation violates the First Amendment if
- the speech is on a matter of public concern, Connick v. Myers (1983), and
- the speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), and
- the damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968)—in practice, this means that employees can be punished for their speech if coworkers or members of the public express enough hostility to the speech, but are generally protected if there isn't much such hostility.
The court rejected Plaintiff El-Haggan's claim to the extent it was "based upon [her] wearing of pro-Palestinian pins, buttons and clothing in the classroom":
Plaintiff El-Haggan was not speaking as a private citizen when she wore pro-Palestinian pins, buttons and other clothing in her classroom. The amended complaint makes clear that Plaintiff El-Haggan engaged in this speech within her classroom, by wearing homemade pins, buttons and outfits containing the slogan, "Free Palestine." The amended complaint also shows that Plaintiff El-Haggan engaged in this speech by distributing "Free Palestine" buttons to other teachers at her school. Given these facts, the Court agrees with the Defendants that Plaintiff El-Haggan's speech was curricular in nature, because, her students and their parents were likely to regard such speech in the classroom as approved and supported by the school.
Notably, the amended complaint makes clear that Plaintiff El-Haggan's speech, while unrelated to mathematics, was, nonetheless, designed to impart knowledge to the students about the war in Gaza. Because the factual allegations in the amended complaint, taken as true, show that Plaintiff El-Haggan presented her views regarding the war in Gaza in a compulsory classroom setting, she was not speaking as a private citizen, but rather as an employee of the MCPS.
Given this, the Plaintiffs do not state a plausible First Amendment retaliation claim based upon this conduct.
But the court held otherwise as to "Plaintiff El-Haggan's email signature containing the slogan, 'From the River to the Sea, Palestine will be free'":
The amended complaint … plausibly alleges that Plaintiff El-Haggan engaged in this speech as a private citizen. In this regard, the Plaintiffs allege in the amended complaint that Plaintiff El-Haggan added this slogan to her work email signature shortly after the October 7, 2023, terrorist attacks. The Plaintiffs also allege that Plaintiff El-Haggan did not use this email to communicate with students or their parents. Given this, the amended complaint plausibly alleges that Plaintiff El-Haggan's students and their parents would not have regarded her email signature as being supported by the school. And so, the Plaintiffs plausibly allege facts to show that Plaintiff El-Haggan was speaking in this context as a private citizen, on a matter of public concern.
The factual record before the Court is not, however, sufficient for the Court to perform the required balancing test under the second prong of Pickering, to determine whether the Defendants' regulation of this speech violates the First Amendment. As the Defendants correctly observe, the amended complaint contains factual allegations to show that Plaintiff El-Haggan's use of the email signature was disruptive to the workplace. ECF No. 42 at ¶ 53 (alleging that a staff member became upset when she read Plaintiff El-Haggan's signature block); id. at ¶ 55 (alleging that a staff member sent a screenshot of Plaintiff El-Haggan's signature line to supervisor and screenshot was circulated to head of school health services), id. at 61 (alleging that Principal Allrich received an email from a parent complaining about Plaintiff El-Haggan's clothing). These facts weigh in favor of the Defendants' ability to regulate this speech. But there are no facts before the Court regarding the other factors that the Court considers when conducting the Pickering balance, such as whether Plaintiff El-Haggan's speech impaired the maintenance of discipline by supervisors; damaged close personal relationships; impeded the performance of her duties; interfered with the operation of the school; undermined the mission of the school; and/or abused the authority and public accountability that her role entailed.
Given this, the Court cannot conclude at this early stage in this litigation that Plaintiff El-Haggan's email signature had an adverse effect that was "reasonably to be apprehended." And so, the Court declines to dismiss this claim.
And the court likewise denied the motion to dismiss as to "Plaintiffs Robinson and Wolf," who "commented and posted about the war in Gaza on their personal social media accounts":
[T]he amended complaint makes clear that these Plaintiffs did not engage in this speech pursuant to their duties as MCPS teachers. But, as is the case with Plaintiff El-Haggan, the factual record before the Court is not sufficient for the Court to determine whether the Pickering balancing factors support the Defendants' decision to regulate this speech. Again, there are some factual allegations in the amended complaint to show that the social media posts at issue were disruptive to the school. ECF No. 42 at ¶¶ 111-112 (acknowledging that parents contacted the school to complaint about Plaintiff Robinson's social media posts); id. at ¶ 173 (acknowledging that a parent contacted the school to complaint about Plaintiff Wolf's social media posts). But other important facts are simply not currently before the Court, such as whether this speech impaired the maintenance of discipline by supervisors; impeded the performance of these Plaintiffs' duties; interfered with the operation of the school; undermined the mission of the school and/or abused the authority and/or the public accountability that these Plaintiffs' roles entailed.
More details on the social media posts:
[111.] On November 26, 2023, according to the investigative report, a parent of a 7th grade WMS student emailed the principal and assistant principal about a post that Ms. Robinson made on her personal Instagram account on November 2. It was an image of a red eye with a map of Palestine in the center and the caption: "The world is watching, Palestine will be free."
[112.] The caption also read: "colonized peoples across the world stand in solidarity with the Palestinian people against israel's settler colonial state-sanctioned apartheid program of genocide backed by u.s. imperialism from the river to the sea, palestine will be free. decolonization is not a metaphor."
[113.] On November 27, at the request of the principal, the same parent sent the school a photo Ms. Robinson shared which depicts an Israeli government missile, moments away from killing a Palestinian child. The caption read, "Shame on the world. #plo #arafat #palestine #freepalestine #endapartheid." …
[194.] Among [Ms. Wolf's] posts, investigator Onley focused on a political cartoon posted by Ms. Wolf which depicts the neonatal intensive care unit in Al-Shifa hospital in Gaza being targeted by an Israeli tank.
[195.] Investigator Onley also questioned her about a Facebook post she shared from another user in which the user supported the Dulles airport bus drivers who refused to transport pro-Israel protestors to a pro-Israel rally. Ms. Wolf explained that she was a former bus driver and felt closely connected to this event.
[196.] Investigator Onley questioned Ms. Wolf about a post shared from another Facebook user. The post reads, "It is not a war– It Is a Slaughter Israel Determined To Make Gaza Uninhabitable.
