The Volokh Conspiracy
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Teacher's First Amendment Claim Related to Sharing "What Is Privilege?" Post Can Go Forward
"Superintendent Hamlet testified that Defendants viewed the Privilege Post as a criticism of the Black Lives Matter ... movement. He did not think such criticism was valid and believed criticism of BLM was enough in itself to justify punishing a teacher."
An excerpt from Magistrate Judge Patricia Dodge's long Report and Recommendation last week in Deltondo v. School Dist. of Pittsburgh (W.D. Pa.):
During 2020-2021, Deltondo was a Kindergarten teacher at Banksville Elementary School in the District…. On August 9, 2020, Deltondo shared on her personal Facebook and Instagram accounts a post originated by another person. The original post (the "Privilege Post") stated as follows:
What is Privilege? …
Privilege is wearing $200 sneakers when you've never had a job. Privilege is wearing $300 Beats headphones while living on public assistance.
Privilege is having a Smartphone with a Data plan which you receive no bill for. Privilege is living in public subsidized housing where you don't have a water bill, where rising property taxes and rents and energy costs have absolutely no effect on the amount of food you can put on your table.
Privilege is the ability to go march against, and protest against anything that triggers you, without worrying about calling out of work and the consequences that accompany such behavior.
Privilege is having as many children as you want, regardless of your employment status, and be able to send them off to daycare or school you don't pay for.
Privilege is sending your kids to school early for the before-school programs and breakfast, and then keeping them there for the afterschool program … paid for by the people who DO HAVE TO DEAL WITH RISING TAXES AND COSTS!
…you know, us so-called 'PRIVILEGED' the ones who pay while you TAKE TAKE TAKE!"
When she reposted the Privilege Post on her Facebook account, Deltondo included the statement "awesome read!" accompanied by a "celebration hands emoji." On her Instagram account, she included the statement, "Someone actually wrote it down and spelled it out for everyone."
Deltondo's social media accounts, which did not identify her as a teacher or the identity of her employer, were restricted such that only friends could see her posts. The posts at issue were made during the summer and not pursuant to any of her job duties. She testified that she re-posted the Privilege Post because she liked the social and political commentary it contained, especially as it related to the welfare state in general. She further testified that she also privately connected it to her daughter. She does not believe that the Privilege Post targets any one race or people, but instead offers a critique of irresponsible spending on well-known luxury items (which she has bought for her own children) by those on public assistance.
Deltondo knew that she had Facebook friends who were Banksville Elementary employees and believes one of these employees likely saw her post, took a screenshot of it, and shared it with others. She also knew that some District students received reduced cost or free lunches. Deltondo notes, however, that the Privilege Post does not criticize providing free lunches but satirizes people who use the program but then demonize the individuals who fund such programs as "privileged."
Deltondo was eventually charged with misconduct, and defendants recommended that she be dismissed; she resigned, and then sued, claiming the school district's actions violated her First Amendment rights. The court allowed her claim to go forward, reasoning in part:
In Pickering and later cases, the Supreme Court applied a three-part test to determine whether a public employee's speech is protected. As discussed by the Third Circuit: "first, the employee must speak as a citizen, not as an employee … second, the speech must involve a matter of public concern …; and third, the government must lack an 'adequate justification' for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test."
The court concluded that the first two elements were satisfied, and had this to say about the third element, which essentially asks whether the disruption of the speech to the government employee's operation outweighs the value of the speech:
As the Court of Appeals has noted on the issue of disruption:
While the test for disruption varies depending upon the nature of the speech, the factors a court typically considers include whether the speech "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."
In every case, "Some disruption is almost certainly inevitable; the point is that Pickering is truly a balancing test." …
The facts here differ significantly from those of the cases cited by Defendants [in which a firing was held to be justified under Pickering]. First, Deltondo did not make overtly derogatory comments about the Kindergarten students in her classes. Certainly, she endorsed the views in the post she reposted, but given the entire circumstances, the record does not reflect sufficient evidence to demonstrate that actual disruption occurred. Defendants have not established that Deltondo's actions impaired discipline or employee harmony, negatively impacted working relationships, impeded Deltondo's performance of her duties or significantly interfered with the District's regular operations. The Privilege Post was made during summer vacation.
While there was some public reaction, Defendants have not claimed that there was an outcry by multiple parents or school employees. Principal Fadick received no direct complaints and the only support Defendants have of complaints made to the District consists of declarations from principals of other schools claiming that a few complaints were made to them. But even if these complaints are acknowledged, they do not demonstrate disruption of school operations. In fact, the complaints came primarily not from concerned parents or District employees but from George Allen [a community activist -EV] and his followers. The comments increased after the District chose to issue a public statement…. [T]he concerns of a few members of the community cannot be used to outweigh Deltondo's free speech interests.
{Assuming for purposes of this opinion the admissibility of declarations submitted by Defendants, Declarant Sanders Woods [a principal at another school] states that she heard from "two teachers and a parent" but does not identify the speakers. Woods also states that she had the "impression that the teachers and parent contacted me based on concerns that the language in Ms. Deltondo's post could be interpreted as her having a negative bias against children of minority backgrounds" but does not state that they actually expressed such concerns. Declarant McNamara [a principal at yet another school] states that she was contacted by her friend and District teacher Becky Gaertner but does not say that Gaertner raised a complaint about the Privilege Post (and Deltondo asserts that Gaertner was not identified as a person who possesses knowledge about this matter).}
Moreover, Principal Fadick testified that any "disruption" was caused by the District's suspension of Deltondo, which required the hiring of last-minute replacements for her. This was the result of the District's actions, not of Deltondo's speech…. [E]ven if evidence of some disruption is presented at trial, a reasonable jury could conclude that Deltondo's speech would have made only a minimal disruption if the District had not issued the District Statement.
Nor has the District established that there was any significant possibility of disruption. As discussed, the post was made during summer vacation and there is no conclusive evidence that disruption to the District generally or to Deltondo's class or the school in which she taught was likely to occur. Thus, given the interests of Deltondo in expressing her speech and the limited evidence of any actual or possible disruption, the Pickering balancing test weighs in favor of Deltondo….
The court also noted:
Deltondo also asserts that the District's response demonstrates that it was engaging in viewpoint discrimination, disfavoring her speech because it found the Privilege Post contrary to its pro-BLM position. Defendants contend that Deltondo's argument is unsupported, but {Superintendent Hamlet testified that Defendants viewed the Privilege Post as a criticism of the Black Lives Matter ("BLM") movement. He did not think such criticism was valid and believed criticism of BLM was enough in itself to justify punishing a teacher.} As courts have held, "viewpoint-based government regulations on speech are nearly always presumptively suspect." …
Alfred Joseph Fluehr (Francis Alexander LLC) represents plaintiff.
