A middle school assistant principal was demoted to a teaching position after his Facebook post containing slurs and violent language relating to the Democratic National Convention. The Ninth Circuit Court of Appeals held that the speech was protected on First Amendment grounds. However, the Court concluded that the school district sufficiently proved its overriding interest in preventing disruption and creating a safe and inclusive school environment.
Case Background: Thompson v. Central Valley School District
Washington’s Central Valley School District (CVSD) middle school assistant principal Randey Thompson posted a heated message on Facebook in August 2020 during the Democratic National Convention. Thompson used profane and derogatory language to disparage the developmentally disabled and political leaders and organizations, accused speakers at a political convention of dishonesty, and directed misogynistic and racist insults toward a former First Lady. He further made statements implying that certain individuals should be subjected to physical punishment, which the court interpreted as threatening in nature.
Another CVSD employee saw the post on a Facebook newsfeed, took a screenshot, sent it to another CVSD employee, who sent it to a CVSD administrator, who sent it to the CVSD Superintendent. Two days later, a CVSD assistant superintendent asked Thompson if he wrote the post; Thompson at that time allegedly confirmed he wrote it, explaining that it was posted on his private Facebook account, shared only with friends and relatives, and posted on his personal time using his personal electronic device. Thompson was informed he was being placed on paid administrative leave effective immediately. Thompson deleted the Facebook post immediately after this conversation.
School District Investigation and Administrative Response
CVSD retained a third-party independent attorney-investigator who interviewed CVSD employees regarding the post, which many viewed as containing hateful and offensive language. One of the words in particular was highly offensive and potentially harmful to disabled students, families, and community members.
During the investigation, additional reports were made about Thompson, including that he had made disparaging remarks about students and used inappropriate references related to special education.
Based on the investigation findings, CVSD’s assistant superintendent conducted “impact interviews” of Board members, administrators, teachers, and parents of students, concluding that Thompson’s statements were insensitive and detrimental to Thompson’s staff, student, and community relationships.
Notice and Opportunity Meetings and Demotion Decision
In September 2020, a “notice and opportunity” meeting was held to provide Thompson an opportunity to address the allegations against him. At this first meeting, Thompson claimed his Facebook account was hacked, but CVSD hired a forensic investigator who concluded that Thompson was not being truthful. CVSD then offered Thompson a voluntary transfer into a teaching position in exchange for a signed release of claims; Thompson rejected the offer.
A second “notice and opportunity” meeting was held in May 2021 to address new allegations of Thompson interfering with the investigation by refusing to transfer Facebook data, deleting emails, and dishonesty about his Facebook being hacked. Following this meeting, CVSD’s superintendent notified Thompson by letter of his transfer to a teaching position, a demotion from his administrative position. The letter cited seven reasons for the transfer, including “disrupted harmony” among staff and CVSD representatives; insensitive comments contrary to CVSD’s mission of creating an inclusive culture; decreased confidence in Thompson’s willingness to promote an inclusive learning and working environment; interference with his ability to perform his job; interference with the CVSD investigation; lack of awareness needed for a school administrator; and CVSD’s best interests being served by the demotion. Thompson requested his right to a Board hearing on CVSD’s decision; CVSD’s Board held that hearing; and the Board affirmed the superintendent’s demotion decision in June 2021.
District Court Action and Pickering Analysis
Thompson then sued for First Amendment violations, and the parties filed cross-motions for summary judgment. The District Court granted summary judgment for CVSD. In doing so, the District Court followed the Pickering analysis, which initially requires a plaintiff to present sufficient evidence for a prima facie case of a First Amendment violation based on the plaintiff’s speaking on a matter of public concern and adverse employment action substantially motivated by the protected speech or expression. Pickering v. Board of Education of Township High School District 205, 391 US 563, 568 (1968). If the plaintiff does so, then the burden shifts to the governmental defendant to prove its legitimate administrative interests in promoting an efficient workplace and that avoiding disruption in taking action against the First Amendment protected activity outweighed the plaintiff’s First Amendment interests. Alternatively, the governmental defendant may show that it would have taken the same actions absent plaintiff’s protected speech or expression. The Pickering analysis is a high burden for a defendant to meet.
Here, the District Court determined that, while Thompson met his burden to show the activity at issue was protected by the First Amendment, CVSD also met its burden to show its interests in “fostering a safe and inclusive school environment” outweighed Thompson’s First Amendment interests. Thompson did show that his Facebook post was private speech on a matter of public concern, rejecting CVSD’s argument that the use of slurs and inappropriate language took the post outside the realm of public concern. Importantly, the District Court also found that CVSD would have demoted Thompson for his other behaviors even absent the Facebook post.
Ninth Circuit Court of Appeals Decision
The Ninth Circuit Court of Appeals’ three-judge panel unanimously agreed with the District Court. Notably, the Ninth Circuit assumed without deciding that placing Thompson on paid administrative leave by itself could constitute an adverse employment action because Thompson was prohibited from being on school property or contacting CVSD staff, creating a “general stigma” against him.
The Ninth Circuit panel found persuasive that CVSD’s placing Thompson on paid administrative leave just a few days after learning of the Facebook post, and the administrator’s admission that the Facebook post prompted the investigation, was sufficient to support Thompson’s prima facie case of First Amendment retaliation. The Ninth Circuit panel also held that CVSD met its burden to show that Thompson’s paid administrative leave was justified by the reasonably predictable disruption to the school district’s interests in ensuring administrators foster a safe and inclusive educational environment, outweighing Thompson’s First Amendment interests.
The Ninth Circuit’s Sliding Scale Analysis
In doing so, the Ninth Circuit applied its “sliding scale” in which the governmental entity’s burden to justify their action “varies depending on the nature of the employee’s expression,” citing Moser v. L.V. Metropolitan Police Dep’t, 984 F.3d 900, 906 (9th Cir. 2021). While recognizing that speech on matters of public concern generally requires the highest level of First Amendment protection, including political speech addressing problems at the governmental agency where the employee works, the Ninth Circuit panel noted that such protection is reduced if the speech is “derogatory in nature,” such as speech that is hostile towards racial or religious minorities. The Court further emphasized that speech that is merely distasteful in character is not stripped entirely of First Amendment protection.
Pickering’s Balancing Act
The Ninth Circuit panel found that Thompson’s Facebook post was not entitled to the highest First Amendment protection, based on the “sliding scale” applied to the speech involved, and therefore CVSD was not required to show as much potential disruption to prevail but was still required to provide evidence that predicted disruptions were reasonable.
The Ninth Circuit panel found, based on CVSD’s internal survey and the nature of Thompson’s administrative position as school assistant principal, that Thompson’s use of disability-related slurs and violent language (woodshed comment) were likely to disrupt CVSD operations, and that Thompson did not uphold his commitment to equity and inclusion and his “derogatory and violent language could substantially disrupt the orderly operation of the school.” Ultimately, the Ninth Circuit panel held that “[b]ecause we give Thompson’s speech little weight under the Pickering balancing test, we hold that CVSD’s interest in creating a safe and inclusive school environment outweighs the public interest commentary contained in Thompson’s speech.”
Why the School District’s Response Mattered
CVSD’s restrained decision to demote rather than terminate Thompson was likely a significant factor in the case outcome. The courts may have viewed termination as too extreme a response, whereas demotion which retained Thompson’s employment but at a different, lower-compensated position was more palatable and defensible and reduced the risk of the discipline being considered retaliatory based on Thompson’s speech. Thompson’s apparently false statements about the post being the result of his Facebook account being “hacked” likely did not help his cause.
Thompson may still appeal the Ninth Circuit panel’s decision and seek a full Ninth Circuit hearing, and may still appeal to the United States Supreme Court. The reduced weight that this Ninth Circuit panel gave to Thompson’s politically oriented Facebook post may be a factor in whether the full Ninth Circuit or United States Supreme Court takes the case.
Key Takeaways for Education Institutions and Employers
- Carefully written letters of discipline, demotion, and termination remain important to supporting employment decisions and defending the decisions in any later unfair labor practice or lawsuit claims.
- Following proper procedures, including “notice and opportunity” or pre-termination meetings, remains important in order to avoid procedural violation claims and ensuring outcomes from evidence-based investigation results remain supported.
- Use of paid administrative leave, depending on the terms, can by itself be considered an adverse employment action. While the Ninth Circuit did not expressly consider this issue, it cited past cases holding that mere placement on administrative leave can constitute adverse employment action. For this reason, use of paid administrative leave should be as brief as possible, limited in scope, and targeted to the situation. Employers may consider a modified leave, such as allowing an employee to work from home or providing a limited job scope during an investigation, but should balance the possible disruption this may cause in the workplace and document the decision.
- Swiftly investigating an issue, including use of a qualified third-party investigator when appropriate, can greatly aid in proper handling of complaints and allegations. Promptly investigating and addressing matters may also help avoid claims of discrimination or retaliation based in part on delayed investigation.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
