In Thompson v. CVSD No 365, published December 29, 2025, the 9th Circuit Court of Appeals affirmed summary judgment for the defendant school district and administrators. The plaintiff was a middle school assistant principal. He posted a comment on Facebook, shared with his Facebook “friends” only, about the Democratic National Convention that used epithets, slurs, and violent language. While scrolling through Facebook, a district employee saw the post on her newsfeed. The post was screenshot and shared between district employees and administrators, and eventually brought to the principal’s attention. The then-assistant superintendent called the plaintiff about the post. The plaintiff confirmed he made the post, and emphasized it was made on his own time and on his own personal device. He stated it was a political post on his private Facebook account, and was sent only to friends and relative who shared his political beliefs. The assistant superintendent informed the plaintiff he was on paid administrative leave effective immediately. He was not allowed on the school campus. The plaintiff immediately deleted his Facebook post. The next day, the district retained an attorney to conduct an independent investigation intothe post. The employees she interviewed who saw the post expressed concern about the post because they deemed the language hateful, offensive, and potentially harmful to students, families, and community members. The attorney interviewed district administrators, who provided information that the post was part of a pattern of behavior, including using derogatory language for special education students and comparing Black students to what he called “normal” students. The assistant superintendent interviewed a sample of board members, district administrators and teachers, and parents of current district students to determine the potential impact of the post. The interviewees were shocked and concerned about the statements. The school board held a meeting to provide the plaintiff with an opportunity to address the allegations concerning the post and the derogatory comments he had made at school. At the meeting, the plaintiff initially stated his Facebook page was hacked and that a hacker made the post. The district retained a forensic investigator who found no evidence of hacking, and noted the plaintiff’s incomplete compliance with the investigation. The assistant superintendent concluded the plaintiff was not being truthful. The district held another meeting with the plaintiff to answer the allegations of lack of coooperation with the investigation and dishonesty. The district tranferred the plaintiff to a subordinate position. After a hearing, the district upheld the transfer. The plaintiff sued the district and individual administrators under 42 U.S.C. section 1983 for retaliation in violation of the 1st Amendment. The parties filed cross-motions for summary judgment. The district court granted the district summary judgment on the ground that its interests outweighed the plaintiff’s 1st Amendment interests, and that the district would have transferred the plaintiff absent his Facebook post. It granted the individual defendants summary judgment based on qualified immunity.
The 9th Circuit applied the two-step Pickering framework to the 1st Amendment retaliation claim. Under that framework, the district court properly found that the plaintiff made a prima facie claim of retaliation for private speech he made on a matter of public concern. The use of slurs and violent language did not take his political post outside the realm of public concern. The court assumed that a reasonable jury could conclude that placing the plaintiff on paid administrative leave could constitute an adverse employment action. The record supports that the post was a substantial or motivating factor in placing the plaintiff on administrative leave. The court nonetheless affirmed the district court’s grant of summary judgment in the district’s favor, because the district met its burden under the second step of the framework. It was justified in placing the plaintiff on paid administrative leave because of its reasonable prediction of disruption. The record supports that the district showed its interest in ensuring its administrators foster a safe and inclusive educational environment outweigh the plaintiff’s 1st Amendment interests. The 1st Amendment protection afforded to a government employee’s speech may be lessened where the speech is derogatory in nature. Although the post touched broadly on a matter of public concern, the use of disability-related slurs and violent language is not speech entitled to the highest constitutional protection. The court therefore gave the plaintiff’s interest in his post little weight under the second step of the Pickering test. The district therefore did not have to show as much disruption from the speech to prevail than it would if the speech were entitled to the “apex” of 1st Amendment protection. The district’s predictions of disruption had to be supported by an evidentiary foundation and be more than speculative. The district reasonably predicted that a Facebook post by a school administrator in a public-facing role that used disability-related slurs and violent language was likely to disrupt district operations. The plaintiff did not uphold the district’s formal commitment to equity and inclusion. The interviews conducted confirmed the district’s prediction that the post was reasonably likely to disrupt school operations. The district’s interest in creating a safe and inclusive school environment outweighs the public interest commentary contained in the plaintiff’s speech. Because it concluded that the plaintiff’s 1st Amendment rights were not violated, the court affirmed the finding of qualified immunity in favor of the individual school officials.
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