October 2015 FBA Labor and Employment Law Third Circuit Update – Supplement
Stephen E. Trimboli, Esq.
Trimboli & Prusinowski, L.L.C.
Schoolteacher who posted comments on her personal blog expressing hostility and disgust against her own students did not engage in speech protected by the First Amendment under the Pickering test and was therefore properly terminated.
Munroe v. Central Bucks School District, et al., _ F.3d _ (3d Cir. 2015), 2015 WL 5167011, C.A. 3, (Penna.), September 4, 2015, available at www2.ca3.uscourts.gov/opinarch/143509p.pdf
Natalie Munroe was an English teacher in a public high school in Doylestown, Pennsylvania, who achieved national notoriety for being fired for publishing a personal online blog in which she repeatedly posted extremely derogatory comments about her own students. She filed a First Amendment retaliation action under 42 U.S.C. Sec. 1983 against her former school district, the district superintendent, and the high school principal in the United States District Court for the District of Pennsylvania. The District Court granted summary judgment to the defendants, finding that Munroe’s comments did not constitute protected speech under Pickering v. Board of Education, 391 U.S. 563 (1968). On Munroe’s appeal, the Third Circuit affirmed by a 2-1 decision.
Munroe posted eighty-four internet blog posts on a publically-accessible personal webpage between August 2009 and November 2010. Most of her posts were unrelated to her work or the school, and were allegedly intended for her friends. Only nine people had subscribed to her webpage, including her husband and herself. But the website was not password-protected and could be accessed by anyone. And on a number of occasions, Munroe posted blog entries about her co-workers, school administration, her students, and their parents. And here is where matters became problematic.
The Third Circuit slip opinion devotes nine pages to a sampling of the hostile comments toward Munroe’s students and their parents that she posted on her blog. By way of example, on January 20, 2010:
there was a depiction of a school bus with a “Short Bus” sign and the following heading: “I DON’T CARE IF YOU LICK THE WINDOWS, TAKE THE SPECIAL BUS OR OCCASSIONALLY PEE ON YOURSELF … YOU HANG IN THERE SUNSHINE, YOU’RE FRIGGIN SPECIAL.”
Munroe proceeded to describe herself as being at work and in the process of entering grades and comments for her students. She claimed that “as the kids got worse and worse, I find that the canned comments {on the report card form} don’t accurately express my true sentiments about them.” She then listed “the comments I’d like to see added to the canned comment list, as an accurate reflection of what we really want to say to these parents,” which included, by way of example: “Has no business being in academic,” “Rat-like,” “Lazy asshole,” “Just as bad as his siblings. Don’t you know how to raise kids?” “Sneaking, complaining, jerkoff,” “Your daughter is royalty (The Queen of Drama),” “Rude, belligerent, argumentative f**k,” “Liar and cheater,” and, “There’s no other way to say this: I hate your kid.”
As another example, on April 3, 2010, Munroe posted the following under the heading, “Things From This Day That Bothered Me:”
1. The fact that it was 85 degrees in my classroom because the district insists on controlling the temperature from central admin and won’t turn on the AC until May 15th, even though people are sweltering NOW.
2. The fact that I called home about an obnoxious kid in class last week before break and his mom said they told him to “knock it off” (the obnoxious behavior), yet the FIRST thing he said to me when he saw me today was, “Yeah, Ms. M. I give you credit for tryin’ to ruin my weekend. But the boys rallied up and had a banger anyway!” Clearly, the talk with his mom was quite effective.
3. The fact that several students in 3rd block did a lame job on their easy assignment today.
4. The fact that the jerk who was out 3 days around our last major assessment because his family took him on trip to Puerto Rico and then emailed me all of this nonsense about how he shouldn’t have to take the test on time because he was “excused” for those days, was out again today (the date of another assessment) because his family took him to the effing Master’s golf shit over Easter break. Can someone please tell me why Thursday–Wednesday wasn’t enough time off to do what had to be done such that he could come back today when he KNEW there was an assessment? ? ? It’s good that people value school so much—wait, no, they don’t.
5. The new chick who seems to be on or near my elliptical all the damn time.
These are just a sampling of the many similar derogatory comments cited by the Third Circuit in its opinion.
Apparently, students learned of Munroe’s blog and began circulating her comments on Facebook and other social media. From there, news of Munroe’s blog spread to parents, the local newspaper, the school district, and ultimately to the national media. The school district confronted Munroe with printed copies of her blog and suspended her with pay on February 9, 2011, midway through the 2010-2011 school year and less than one month before she began a previously-scheduled maternity leave. During the spring and summer of 2011, the school district received over 200 emails from parents asking that Munroe not be assigned to teach their children. Although the district retained Munroe for the 2011-2012 school year, (and hired an additional teacher to shadow Munroe throughout the year), she was finally terminated on June 26, 2012.
In order for speech to receive First Amendment protection, a public employee must speak as a citizen as opposed to as an employee, the speech must involve a matter of public concern, and the government employer must lack an adequate justification for treating the employee differently than the general public based on its needs as an employer under the balancing test established by the United States Supreme Court in Pickering. Under the Pickering balancing test, a court balances the interests of the employee, as a citizen, in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
The Third Circuit majority “reluctantly” assumed “for the purposes of this opinion that Munroe’s speech satisfied the ‘public concern’ requirement.” Occasional blog posts touched on issues of academic integrity, honor and hard work. That her statements were inappropriate or controversial was irrelevant to the “public concern” inquiry. “After all, humor, satire, and even ‘personal invective’ could be used in order to make or embellish a point about a matter of political, social or other concern to the community, such as a school district’s grading policies and practices.” The extensive media coverage of her blog, and the statements she made to the media about her blog entries – in which she refused to apologize for their content and attempted to focus attention instead on what she termed the “Education Debate” – also supported the finding that Munroe met the “public comment” requirement.
However, the majority determined that the Pickering balancing test fell in the defendants’ favor. The interests of the employee and the public at large is balanced against the government’s legitimate and countervailing interest, as an employer, in promoting workplace efficiency and avoiding workplace disruption. The government employer need not show the actual existence of disruption, but merely that disruption is likely to occur because of the speech. Factors to consider include whether the speech impairs discipline or employee harmony, has a detrimental impact on close working relationships requiring personal loyalty and confidence, impedes the performance of the speaker’s duties, or interferes with the enterprise’s regular operations.
Applying this standard, the majority reasoned first that Munroe’s speech was entitled only to minimal weight. Munroe did not claim to have exposed any fraud, corruption or illegal government conduct. On the other hand, Munroe’s speech was so disruptive in its effect and tone that any legitimate interest in its expression was diminished. While an inappropriate tone of expression is irrelevant to the “public concern” inquiry, it plays a critical role in “ascertaining the existence and likelihood of disruption…Likewise, invective directed against the very persons that the governmental agency is meant to serve could be expected to have serious consequences for the performance of the speaker’s duties and the agency’s regular operations.” The majority cited at length the specific, deeply offensive language Munroe had used to describe her students, noted her media appearances in which she defended her comments and refused to apologize for them, and also cited the negative reaction to her comments from students and their parents. Nor did the district’s decision to employ her for one last school year before terminating her “estop” the district from firing her because of her blog entries. “{T}he First Amendment does not require a school district to continue to employ a teacher who expresses the kind of hostility and disgust against her students that Munroe did on her blog and then publicly defends such comments to the media—which results in serious negative reactions on the part of both students and parents, the submission of numerous parental ‘opt-out’ requests, and the hiring of an additional teacher.”
The dissenting judge argued that the district’s failure to terminate Munroe when her blog posts first came to light, and its subsequent decision to employ her for the 2011-2012 school year, undermined any claim of “disruption” and caused the Pickering balance to fall in Munroe’s favor. The dissenting judge would have remanded the matter for trial on the issue of retaliatory discharge.
