Justices pass on review of teacher’s free speech claim

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BOSTON — One of the last acts in the latest U.S. Supreme Court term was the justices’ decision not to hear the case of a former Hanover, Massachusetts, public school teacher who claimed her First Amendment rights were violated when she was fired over politically charged social media posts that predated her hiring.

The court denied the petition for a writ of certiorari in MacRae v. Mattos on June 30.

Petitioner Kari MacRae sued the Hanover Public Schools and two administrators in December 2021 after she was terminated over certain memes posted on her personal TikTok account that came to light following her hiring. The satirical social media posts expressed opposition to illegal immigration, and the beliefs that a person’s sex cannot be changed and that society should be racially colorblind.

The defendants prevailed in both U.S. District Court and the 1st U.S. Circuit Court of Appeals. In obtaining summary judgment in the lower court and affirmance by the 1st Circuit, the defendants argued that, under the well-established Pickering-Garcetti framework, MacRae’s pre-employment social media posts created significant potential for disruption to her school’s teaching and learning environment.

In her petition for cert, MacRae contended that her case raised the important question of whether the Pickering balancing test applies to “unrelated, preemployment speech on matters of public concern.”

The court denied cert without explanation. Justice Clarence Thomas issued a statement, agreeing with the denial based on his conclusion that the question presented by the petitioner was too narrow.

But Thomas signaled that he was looking forward to the court revisiting the Pickering-Garcetti balancing test in future cases.

“In an appropriate case, I would make clear that public employers cannot use Pickering-Garcetti balancing generally or unsupported claims of disruption in particular to target employees who express disfavored political views,” Thomas wrote.

Boston attorney Leonard H. Kesten represents the school district defendants in the case. Kesten says that he had been “concerned” the Supreme Court would take the case.

“We’re grateful that the children of the school district will not have to be exposed to this type of language,” says the Brody, Hardoon, Perkins & Kesten lawyer.

Kesten acknowledges that issues such as what should be done about illegal immigration and whether transgender athletes who were born male should be able to compete in women’s sports are currently topics of heated debate in the country.

But he says a line needs to be drawn in the schools.

“If you are a child in the school system who’s just trying to get by, and your teacher is publicly expressing these views, that shouldn’t be allowed to interfere with the learning,” Kesten says. “The First Amendment does protect political satire. However, one needs to evaluate the effect on the kids, which is why we have the Garcetti doctrine.”

The plaintiff is represented by Michael Bekesha, a lawyer at Judicial Watch in Washington, D.C.

Bekesha emphasizes that his client was fired for her pre-employment speech.

“This was nothing she brought into the classroom,” Bekesha says. “It was entirely about speech that was outside the classroom and that she had no intention of talking about in the classroom because she did not think it would be appropriate. We think teachers or any government employee should have the right to engage in this kind of political satire outside of their employment.”

Ronald E. Cahill, a partner at Barnes & Thornburg in Boston, represents the Equal Protection Project. The free speech advocacy organization filed an amicus brief in support of MacRae’s petition for cert.

“Pickering was decided in the 1960s when the internet wasn’t a thing and certainly there weren’t memes that lived forever,” Cahill says. “Actually, it would have been important to take up that issue [of pre-employment speech] for the reasons stated by the petitioner.”

According to Cahill, MacRae is similar in many ways to another case of “viewpoint bias” decided in the 6th Circuit last year, Noble v. Cincinnati & Hamilton County Public Library. In that case, the court reversed summary judgment in favor of the government employer on retaliation claims brought by a security guard terminated for sharing a meme critical of Black Lives Matter protests.

“There is no lesser standard for political speech — even if you can call it ‘derogatory,’” Cahill says. “The standard is pretty high. You actually have to prove a disruption of the government services. Looking at all the evidence [in MacRae], you can’t say that.”

The Supreme Court’s framework for addressing claims of First Amendment retaliation brought by public employees is derived from its 1968 decision in Pickering v. Board of Education of Township High School Dist. 205 and the 2006 decision in Garcetti v. Ceballos.

Under the First Amendment, public employers are permitted to regulate their employees’ private speech about “matters of public concern,” but only to the extent necessary to operate efficiently and effectively.

In deciding whether an employee’s private speech about matters of public concern is protected, the Pickering-Garcetti framework calls for a balancing of the employee’s free speech interest against the government employer’s interest in avoiding workplace disruption.

The school district in MacRae hired the plaintiff to teach math at Hanover High School in late August 2021. The school at the same time received a complaint from a citizen about six memes the plaintiff posted on her TikTok account earlier in the year.

The memes had been unearthed by local newspapers in conjunction with coverage of the plaintiff’s May 2021 bid for election to the school board in Bourne, where she was a resident. During her campaign, the plaintiff had been outspoken in her opposition to the teaching of critical race theory.

One of the six TikTok memes included a photo of Dr. Rachel Levine, the then-U.S. assistant secretary for health and a transgender woman, accompanied by text that read: “‘I’m an expert on mental health and food disorders.’ … says the obese man who thinks he’s a woman.”

In suing the school district and school officials under §1983, the plaintiff alleged the defendants retaliated against her for exercising her First Amendment rights.”

U.S. District Court Judge Denise J. Casper granted the defendants’ motion for summary judgment in September 2023, writing “the Court finds that Defendants have adduced ample evidence of the potential for disruption to student learning and to the District’s mission which adequately justified MacRae’s termination.”

A 1st Circuit panel echoed those sentiments in affirming the lower court in 2024.