Natalie Munroe v. Central Bucks School District , 805 F.3d 454 ( 2015 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 14-3509
_____________
NATALIE MUNROE,
Appellant
v.
CENTRAL BUCKS SCHOOL DISTRICT;
N. ROBERT LAWS, Superintendent of Schools Central
Bucks School District; ABRAM LUCABAUGH,
Principal Central Bucks High School East
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-12-cv-03546)
District Judge: Honorable Cynthia M. Rufe
_______________
Argued June 8, 2015
BEFORE: AMBRO and COWEN, Circuit Judges
RESTANI*, Judge
(Filed: September 4, 2015)
Stanley B. Cheiken, Esq. (Argued)
Suite 400
101 Greenwood Avenue
Jenkintown, PA 19046
Counsel for Appellant
Kimberly A. Boyer-Cohen, Esq. (Argued)
Marshall, Dennehey, Warner, Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
Counsel for Appellee
Sean A. Fields, Esq.
Pennsylvania School Boards Association
400 Bent Creek Boulevard
P.O. Box 2042
Mechanicsburg, PA 17055
Counsel for Amicus Appellee Pennsylvania School
Board Association
2
_______________
* Honorable Jane A. Restani, Judge for the United States
Court of International Trade, sitting by designation.
______________
OPINION OF THE COURT
______________
COWEN, Circuit Judge.
Plaintiff Natalie Munroe filed this First Amendment
retaliation action against Defendants Central Bucks School
District (“School District”), School District Superintendent N.
Robert Laws, and Central Bucks East High School (“CB
East”) Principal Abram Lucabaugh. The School District fired
Munroe, an English teacher at CB East, after her blog—in
which she made a number of derogatory comments about her
own students—was discovered. She appeals from the order
of the United States District Court for the Eastern District of
Pennsylvania granting the Defendants’ summary judgment
motion. We agree with the District Court that, pursuant to the
Pickering balancing test, Munroe’s speech did not rise to the
level of constitutionally protected expression. Accordingly,
we will affirm.
I.
3
In 2006, Munroe was hired by the School District and
assigned to teach English at CB East in Doylestown,
Pennsylvania. Her performance evaluations indicated that
she was generally considered to be an effective and
competent teacher. For example, an October 2006 review
praised her abilities and work habits. In June 2008,
Lucabaugh wrote a letter of recommendation in support of
Munroe’s application for admission to a graduate program.
He described Munroe as a “woman of utmost integrity,
character, and intelligence,” “a consummate educator with a
sparkling future,” and “a woman whom I respect both
personally and professionally.” (A175.) The School District
granted Munroe tenure in March 2010.
In August 2009, Munroe began a blog entitled Where
are we going, and why are we in this handbasket? Blogging
under the name “Natalie M,” she did not expressly identify
either where she worked or lived, the name of the school
where she taught, or the names of her students. According to
Munroe, her blog was meant to be viewed by friends that she
had asked to subscribe. She did not intend for it to be read by
the public at large. For most of the blog’s history, there were
no more than nine subscribed readers, including Munroe
herself and her husband. However, no password was required
to access the blog.
Munroe wrote a total of eighty-four blog posts
between August 2009 and November 2010, “most of which
had nothing to do with her school or work.” (Appellant’s
Brief at 6 (citing A208-A254, A412-A452).) Intended as a
vehicle to keep in touch with friends, Munroe mostly
4
addressed personal matters like her food and film preferences,
her children, and her regular yoga classes. On a number of
occasions, she wrote about her co-workers, the School
District administration, her students, and their parents.
In what the District Court called “one memorable
passage,” Munroe v. Cent. Bucks Sch. Dist., 34 F. Supp. 3d
532, 538 (E.D. Pa. 2014), Munroe explained that she was
entering grades, discussed the grading process, and, finally,
offered some comments she would like to see added to the so-
called “canned” comment list used to fill out students’ report
cards. At the top of this January 20, 2010 blog post, 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.” (A245). Munroe then stated the following:
I’m being a renegade right now, living on the
edge and, um, blogging AT work.
However, as I’m blogging about work stuff, I
give myself a free pass of conscience.
I’m in the process of entering grades, and also
need to enter comments for the grades. I used
to take a lot of time with this procedure,
choosing just the right comment(s) for my
students. If I put a negative one, I’d also put a
positive one to temper it. (When I was in
5
school, I hated when I got the same 2 or 3
comments from my teachers. It felt so
insincere.)
(For the record, my computer froze and had to
be shut down at work; when I rebooted, I didn’t
bother signing back on to finish this as other
things to do came up. At present, then, I’m not
being a renegade at all, as I’m writing this at my
kitchen table.)
Anyway, as I was saying, when I was first
teaching, I put a lot of time and effort into the
comments because I felt it was a great way to
communicate the students’ efforts. Then it got
to be a complete pain in the ass, just one more
thing standing between me and being done the
report cards, and suddenly I realized why I’d
always gotten the same comments from my
teachers: they didn’t want to do them any more
than I do. (I refuse to believe the alternative
reason that I’ll explore momentarily.)
Also, as the kids get worse and worse, I find
that the canned comments don’t accurately
express my true sentiments about them. So now
I pretty much choose “Cooperative in Class” for
every kid (or, in some instances, will speak in
other codes. For instance, if they talk a lot, I’ll
put “is easily distracted” or “talks persistently”;
if it’s a kid that has no personality, I’ll put
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“ability to work independently”). For some
kids, though my scornful feelings reach such
fever pitch that I have a hard time even putting
“cooperative in class” and have, sadly, had
some kids for which none of the comments fit.
(Again, this was NOT me. It couldn’t have
been. I was a delight!!)
Thus, for this blog, I will list 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. Here they are, in no
particular order:
 Concerned your kid is automaton, as she just
sits there emotionless for an entire 90 minutes,
staring into the abyss, never volunteering to
speak or do anything.
 Seems smarter than she actually is.
 Has a massive chip on her shoulder.
 Too smart for her own good and refuses to play
the school ‘game’ such that she’ll never live up
to her true potential here.
 Has no business being in Honors.
 A complete and utter jerk in all ways. Although
academically ok, your child has no other
redeeming qualities.
 Lazy.
 Shy isn’t cute in 11th grade; it’s annoying.
Must learn to advocate for himself instead of
having Mommy do it.
7
 One of the few students I can abide this
semester!
 Two words come to mind: brown AND nose.
 Dunderhead.
 Complainer.
 Gimme an A.I.R.H.E.A.D. What’s that spell?
Your kid!
 There is such a thing as too loud in oral
presentations. We shouldn’t need earplugs.
 Att-i-tude!
 Nowhere near as good as her sibling. Are you
sure they’re related?
 I won’t even remember her name next semester
if I see her in the hall.
 Asked too many questions and took too long to
ask them. The bell means it’s time to leave!
 Has no business being in Academic.
 Rat-like.
 Lazy asshole.
 Just as bad as his sibling. Don’t you know how
to raise kids?
 Sneaking, complaining, jerkoff.
 Frightfully dim.
 Dresses like a street walker.
 Whiny, simpering grade-grubber with an
unrealistically high perception of own ability
level.
 One of the most annoying students I’ve had the
displeasure of being locked in a room with for
an extended time.
8
 Rude, belligerent, argumentative fuck.
 Tactless.
 Weirdest kid I’ve ever met.
 Am concerned that your kid is going to come in
one day and open fire on the school. (Wish I
was kidding.)
 I didn’t realize one person could have this many
problems.
 Your daughter is royalty. (The Queen of
Drama)
 Liar and cheater.
 Unable to think for himself.
 I hear the trash company is hiring . . .
 Utterly loathsome in all imaginable ways.
 I called out sick a couple of days just to avoid
your son.
 There’s no other way to say this: I hate your
kid.
These comments, I think, would serve me well
when filling out the cards. Only, I don’t think
parents want to hear these truths.
Thus the old adage ... if you don’t have
anything nice to say ...
... say “cooperative in class.”
(A245-A246.)
9
On April 3, 2010, Munroe blogged about all of the
“Things From This Day That Bothered Me.” These “Things”
were almost all work-related:
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
10
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.
(A213.) In this same blog post, Munroe listed “Artists Who
Annoy the Crap Outta Me and Who I Must Turn Off as Soon
as I Hear the Opening Bars to Their Songs, But Who Are
Regarded as ‘Talent’ by Some People” (i.e., Alicia Keys,
Beyonce and Destiny’s Child, and Miley Cyrus) as well as
“Things I Liked About This Day.” (Id.) None of the “Things
I Liked About This Day” were related to her job or her
students. Rather, these “Things” focused mostly on her
daughter.
Discussing recent disciplinary issues and other
problems (for instance, she had to deal with a student and his
mother complaining about a test score), Munroe asked on
October 27, 2009:
Kids! I don’t know what’s wrong with these
kids today! Kids! Who can understand
anything they say? They are disobedient,
disrespectful oafs. Noisy, crazy, sloppy, lazy
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LOAFERS (and while we’re on the subject)
Kids! You can talk and talk till your face is
blue. Kids! But they still do just what they
want to do. Why can’t they be like we were?
(Perfect in every way!!!) What’s the matter
with kids today????? My students are out of
control. They are rude, disengaged, lazy
whiners. They curse, discuss drugs, talk back,
argue for grades, complain about everything,
fancy themselves entitled to whatever they
desire, and are just generally annoying. . . .
(A440.)1
In another blog post dated January 11, 2010, Munroe
explained why she believed that “this new-aged soft-on-
crime/bribery and overindulgence is probably the reason that
kids are so horrible today.” (A249.) According to Munroe,
“teenagers are complete asses” who have no respect for
adults, for authority, or for teachers. (Id.) “Parents won’t
allow anyone but themselves to discipline their kids, but
THEY don’t do any disciplining either.” (Id.) Teenagers
then talk back in school and “think it’s appropriate to try to
go into my desk to retrieve a hackey-sack that was
confiscated during use in class.” (Id.) Comparing how
parents treat their children today with how she was raised,
Munroe complained that parents were “breeding a disgusting
brood of insolent, unappreciative, selfish brats.” (A250.)
1
According to her deposition testimony, Munroe was
quoting a song from Bye Bye Birdie.
12
Noting that “it’s paper grading time again,” Munroe observed
in an April 17, 2010 blog post that “these times are getting
worse and worse.” (A416.) “The first semester of this school
year, when I had a parade of whiny, entitled kids run to the
guidance department to tell on me for giving them the low
grades they earned on their shoddy papers, sort of scarred me.
I consider myself very fair with my grading.” (Id.)
There were also blog posts that addressed the concepts
of honor and academic integrity as well as Munroe’s concerns
about student work habits and her negative attitude towards
her job and her students. Munroe blogged (in a March 13,
2010 post) about her frustrating attempt to teach her students
how to write a “Literary Analysis Paper” (describing, for
instance, how, when she met with students to talk about their
thesis statements, “I found that many of them didn’t bother
even attempting to revise their statements, instead coming to
the ‘conference’ expecting me to tell them exactly what the
problem was and how to fix it (and, all the better, to write it
for them if I was willing . . . ),” and how “one boy” said that
he would ask his mother to look at the paper over the
weekend). (A222.) Munroe lamented that “I teach and teach
and teach, but no learning seems to happen.” (A223.) “I
work my ass off to help them achieve success, but the only
one learning how to write a better paper is me. Like I said,
I’m tired of the dance. I just want to sit this one out.” (Id.)
On January 23, 2010, she likewise claimed that, with each
passing day, “I’m coming to, more and more, realize that I
need all the blessings I can get” because “[t]hese kids are the
devil’s spawn.” (A237.) She then discussed in some detail
the importance of honor, how she addressed this concept in
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class (and the often hostile reaction on the part of some
students), and, among other things, the fact that “TWO days
after my lofty speeches, and a single day after they all signed
the [honesty] pledge and pledge wall . . . someone [described
as “‘that girl in the back in pink’”] had consciously made a
cheat sheet and brought it in and intended to cheat.”2 (A240.)
The School District administration first learned of
Munroe’s blog in February 2011 when a reporter from The
Intelligencer (a local newspaper) began to ask questions about
the blog. Specifically, the reporter e-mailed Laws on
February 8, 2011, asking if he was “aware of this blog, which
the students apparently have been circulating on facebook and
through other social media.” (A258.) On February 9, 2011,
Lucabaugh met with Munroe, confronted her with printed
copies of her blog posts, and placed her on immediate paid
suspension. At this point in time, the School District had no
regulation specifically prohibiting a teacher from blogging on
his or her own time (although it appears that a policy was
subsequently adopted by the School District).
In his deposition testimony, Lucabaugh described the
fevered reactions on the part of students and their parents to
Munroe’s blog posts: “Kids were furious. They were livid.
The calls that were coming in from parents, the e-mails that
were coming in, kids had copies of it and they were
distributing it in the halls.” (A397.) The principal
2
Munroe also referred to a co-worker named “Bill” as
“a douche.” (A210.) She similarly claimed that the School
District administration harassed a colleague until he resigned
because it believed he was an ineffective teacher.
14
characterized CB East as “like a ticking time bomb” and
asserted that the environment “was so incendiary” that the
administration “thought we’re going to have a riot or a sit-in
or worse.” (A398.) “To say it was a disruption to the
learning environment is an understatement.” (Id.) According
to Lucabaugh, Munroe was escorted from the building for her
own safety.
In what he described as an unprecedented situation,
Lucabaugh began receiving e-mails from parents indicating
that they did not want Munroe to teach their children. He
continued to receive more and more e-mails throughout the
summer, peaking in June and July of 2011. He asked his
superiors: “‘What do I do with this?’ ‘Because I have to
schedule the building and we have to get ready for class and I
can’t not put them in class. So what do I do with this’. I said
– first of all, I have – now I’m talking over seventy-five,
eighty people, ninety people, one hundred people, a hundred
and—and it was growing.” (A399.) It appears undisputed
that the School District ultimately received over 200 “opt-
out” requests from parents. While he recognized that it was
the school board that had to decide how to handle these
requests, Lucabaugh indicated that Munroe would probably
not “have a chance” to teach in a “toxic environment” if “I
already know that twenty-five students and their parents don’t
want their child in her class and they’re in her class.” (A400.)
Accordingly, the decision was made to hire another teacher
and have her “shadow” Munroe, i.e., teach the same exact
schedule. Munroe claims that, “[i]n August 2011, Defendants
[in retaliation for Munroe’s expression] informed residents of
the School District that they would honor all requests of
15
students to ‘opt out’ of Munroe’s classes.” (Appellant’s Brief
at 10 (citing A105-A111).) According to Munroe, the School
District “said it [allowed the opt-outs] in case students were
uncomfortable returning to the classroom of a teacher who
would say such things about them on her private blog.”
(A108.) She did not believe the School District’s justification
because it was unprecedented to allow students to opt out of a
class. The real reason was because “they didn’t want me to
have any students to teach.” (A111.) However, Munroe
acknowledged that the whole situation was probably
unprecedented.
The story was picked up by a widely-read internet
news site, The Huffington Post, in a posting entitled “Natalie
Munroe, Central Bucks Teacher, Suspended for Dissing
Students On Blog.” (A260.) Lucabaugh made a statement to
the media. Munroe herself appeared on ABC, CBS, NBC,
CNN, Fox News, and other television stations. She also gave
interviews to several print news sources, including the
Associated Press, Reuters, Time Magazine, and the
Philadelphia Inquirer.
According to The Huffington Post, “Laws says the
posts should result in termination but the district is still
investigating.” (Id.) In two e-mails, Laws expressed a desire
to terminate Munroe’s employment. In his February 11, 2011
e-mail, he indicated that one of the School District’s
16
“constitutional lawyers” was researching the matter.3 (A262.)
On February 17, 2011, he noted that, “[f]or the legal team, we
still need to confirm a plan for termination.” (A266.) In a
third e-mail dated February 24, 2011, Laws asked if Munroe’s
teaching certificate could be revoked, which “would, in
effect, be a potentially less costly approach and, in effect, net
the same result as a termination.” (A268.)
In any event, Munroe went out on maternity leave,
which had already been scheduled before the blog was
discovered. Her leave ran from March 1, 2011 until the end
of the 2010-2011 school year. On June 15, 2011, Lucabaugh
completed Munroe’s evaluation, concluding that her
performance for the preceding academic term was
unsatisfactory. The evaluation purportedly relied on a
number of different grounds for this negative rating, including
ineffective instructional delivery practices and inappropriate
use of a “nanny cam” during teaching hours. However, it also
observed that, in her blog posts, Munroe demonstrated
“inappropriate or disrespectful interactions between teacher
and students” and a “lack of knowledge of the Professional
Code of Conduct.” (A271-A272.) In particular, it was noted
that Munroe failed to use acceptable and professional
3
Noting that Munroe was scheduled to appear on a
Fox News show (“Justice with Judge Jeanine”), Laws
expressed surprise that people were supporting Munroe: “I
feel like I am in the twilight zone. I can’t believe people
support this woman and her right to ‘say anything.’” (A262.)
In a subsequent e-mail, a school board member stated that
“[a]fter seeing her on the Fox news show I am confident we
are doing the right thing.” (A264.)
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language and that her comments did not reflect sensitivity to
the fundamental human rights of dignity, privacy, and respect.
As a result, students and parents “expressed shock and
outrage that their teacher would write about them in such
derogatory terms and that their identity was not protected by
the details provided in her blog which was placed on the
internet to be accessed by anyone.” (Id.) “Students and
parents stated verbally and in writing that they would not
return to this teacher’s class because of what she had written
in her blog,” and students indicated that they lacked
confidence in this teacher on account of “the breach in the
student-teacher relationship.” (Id.) In the summer of 2011,
Laws submitted an “Educator Misconduct Complaint” to the
Office of Chief Counsel of the Pennsylvania Department of
Education, alleging that Munroe engaged in “[c]onduct
inappropriate for an Educator.” (A277.) The complaint was
dismissed on the grounds of legal insufficiency. In addition,
the School District denied Munroe’s request for a transfer to
another school.
Munroe returned to work in August 2011. The School
District held a media briefing to announce her return. In a
prepared statement, Lucabaugh explained that, “[w]hile her
actions have created an unfortunate and incredibly difficult
situation, Mrs. Munroe maintains employee rights, and that is
the sole reason for her return.” (A285.) According to the
principal of CB East:
Whether or not Mrs. Munroe had the legal right
to express her views with such vitriol is not the
heart of this issue. No one here is contending
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that she can’t say these things ... legally. And
for that reason, she has a legal right to return.
What is at the heart of this issue, however, is the
large-scale disruption her comments created,
and the ensuing damage they have caused the
young men and women to whom she was
alluding. Natalie Munroe’s actions placed the
outstanding work that occurs in our school in
question, placed my leadership in question,
placed our students’ merit in the crosshairs of
national scrutiny, breached trust with the
community, and compromised her professional
integrity. Her comments were unprofessional,
disrespectful, and disturbing, particularly
coming from the heart of an educator.
Moreover, and most importantly, they were
crass and CRUEL.
The obvious question left unanswered as the
school year ended was whether or not Mrs.
Munroe would be returning to teach in the fall.
I should point out here that her maternity leave
ends this month, and regardless of the moral
and ethical issues surrounding her actions, Mrs.
Munroe maintains employment rights.
....
19
Despite the fact that Mrs. Munroe retains legal
employment rights, I would hope none of us
lose sight of the real issue.
The real issue is that while something may be
legally right, it may not be ethically or morally
right. There are consequences that occur when
a person chooses to exercise her rights and say
outrageous, disrespectful, vulgar and cruel
things about other people ... especially when it’s
a teacher saying terrible things about the young
men and women who are in her classroom.
As a public school, we are charged with
meeting the needs of every student who enters
our doors, rich or poor, gifted or learning
disabled, troubled or triumphant, and guiding
them to their full potential so they receive the
most precious gift an education can provide:
opportunity for choice in life.
What pains me the most in all of this is how the
statements made by Mrs. Munroe have placed
our students in the line of fire, and caused a
nation to question their collective merit.
(A286-A288.)
Munroe received negative performance evaluations
over the course of the 2011-2012 school year (which, unlike
the evaluation she received at the end of the previous school
20
year, did not expressly reference her blog and its effects), and
she was required to complete detailed lesson plans (which she
claimed were deliberately engineered to be too complicated to
finish accurately). On June 1, 2012, the School District
notified Munroe of its intention to terminate her employment
based on charges of failure to meet requirements set forth in
performance improvement plans, incompetency,
unsatisfactory classroom management, unsatisfactory delivery
of instruction, and unsatisfactory lesson planning. On June
26, 2012, the School District formally terminated her
employment.
Munroe filed this action under 42 U.S.C. § 1983,
alleging that Defendants violated her First Amendment rights.
“Specifically, Munroe claims that the school administration
harassed and eventually terminated her after discovering a
private blog in which Munroe has expressed criticism of the
school, her co-workers, and her students.” Munroe, 34 F.
Supp. 3d at 533. The parties completed discovery, and
Defendants moved for summary judgment. In a July 25, 2014
order, the District Court granted their motion and entered
summary judgment in favor of Defendants and against
Munroe.
In its opinion, the District Court ultimately concluded
that Defendants did not violate Munroe’s constitutional right
to free expression. “Because this Court has determined as a
matter of law that Plaintiff’s comments do not merit
protection under the balancing test established by [Pickering
v. Board of Education, 391 U.S. 563 (1968)],” it believed it
was unnecessary to reach the question of whether this speech
21
directly caused her termination. Munroe, 34 F. Supp. 3d at
540-41. While it recognized that freedom of speech
constitutes an indispensable condition of nearly every other
right or liberty, see Palko v. Connecticut, 302 U.S. 319, 327
(1937) (characterizing freedom of thought and speech as “the
matrix, the indispensable condition, of nearly every other
form of freedom”), overruled on other grounds, Benton v.
Maryland, 395 U.S. 784 (1969), the District Court pointed out
that education “is one of the most heavily protected interests
in modern American jurisprudence,” Munroe, 34 F. Supp. 3d
at 541 (citing Brown v. Bd. of Educ., 347 U.S. 483, 493
(1954)). “In this case, Plaintiff’s speech, in both effect and
tone, was sufficiently disruptive so as to diminish any
legitimate interest in its expression, and thus her expression
was not protected.” Id.
II.
“[A] State may not discharge an employee on a basis
that infringes that employee’s constitutionally protected
22
interest in freedom of speech.”4 Rankin v. McPherson, 483
U.S. 378, 383 (1987). Free and unhindered debate on matters
of public importance constitutes a core value of the First
Amendment. See, e.g., Pickering, 391 U.S. at 573.
Accordingly, public employees do not surrender all of their
First Amendment rights merely because of their employment
status. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 417
(2006).
Nevertheless, “the State has interests as an employer in
regulating the speech of its employees that differ significantly
from those it possesses in connection with regulation of the
speech of the citizenry in general.” Pickering, 391 U.S. at
568. In short, “the government as employer” possesses “far
4
The District Court possessed subject matter
jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291 and exercise
plenary review over a district court order granting a motion
for summary judgment, see, e.g., Monaco v. Am. Gen.
Assurance Co., 359 F.3d 296, 299 (3d Cir. 2004). Summary
judgment is appropriate where “there is no genuine dispute as
to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). The facts must be
viewed in the light most favorable to the non-moving party.
See, e.g., Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265,
267 (3d Cir. 2005).
We note that the Pennsylvania School Boards
Association (“PSBA”) has filed an amicus brief in support of
Defendants.
23
broader powers than does the government as sovereign.”
Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality
opinion). “When a citizen enters government service, the
citizen by necessity must accept certain limitations on his or
her freedom.” Garcetti, 547 U.S. at 418. Government
employers, like their private counterparts, still “need a
significant degree of control over their employees’ words and
actions; without it, there would be little chance for the
efficient provision of public services.” Id.. As we explained
in Miller v. Clinton County, 544 F.3d 542 (3d Cir. 2008),
“public employers are still employers, and they therefore have
the same concern for efficiency and the need to review and
evaluate employees as any other employer in order to ensure
that the actions of employees do not interfere with the
performance of public functions,” id. at 547; see also, e.g.,
Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 987
(3d Cir. 2014) (“At the same time, the Supreme Court also
aptly recognizes the government’s countervailing interest—as
an employer—in maintaining control over their employees’
words and actions for the proper performance of the
workplace.”). A public employer accordingly may impose
speech restrictions that are necessary for efficient and
effective operations. See, e.g., Dougherty, 772 F.3d at 987
(“Thus, ‘[s]o long as employees are speaking as citizens
about matters of public concern, they must face only those
speech restrictions that are necessary for their employers to
operate efficiently and effectively. [Garcetti, 547 U.S. at
419].”).
“To establish a First Amendment retaliation claim, a
public employee must show that (1) his speech is protected by
the First Amendment and (2) the speech was a substantial or
24
motivating factor in the alleged retaliatory action, which, if
both are proved, shifts the burden to the employer to prove
that (3) the same action would have been taken even if the
speech had not occurred.” Id. at 986. In order for his or her
speech to rise to the level of constitutionally protected
expression, the employee must speak as a citizen (and not as
an employee), “the speech must involve a matter of public
concern,” and “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.” Id. at 987 (quoting Gorum v.
Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)). The Pickering
balancing test requires the courts to “‘balance . . . the interests
of the [employee], as a citizen, in commenting upon matters
of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees.’” Id. at 991 (quoting
Pickering, 391 U.S. at 568). We must also consider, on the
employee’s side, the interest of the public in the speech at
issue. Id. The question of whether or not speech is protected
by the First Amendment constitutes a question of law. See,
e.g., Miller, 544 F.3d at 548; Hill v. Borough of Kutztown,
455 F.3d 225, 241 (3d Cir. 2006).
Defendants ask this Court to affirm the District Court’s
order on four different grounds: (1) Munroe’s speech, in light
of its content, form, and context, did not implicate a matter of
public concern; (2) her speech was likely to cause—and, in
fact, did cause—disruption “to the rendering of educational
services by the District,” and the Pickering balancing test
accordingly “weighed in favor of Defendants and would not
25
have prevented them from taking adverse action against
Plaintiff based upon her speech” (Appellees’ Brief at 22); (3)
Munroe’s speech did not constitute a substantial factor in the
various negative performance evaluations she received or in
her eventual termination; and (4) the School District would
have pursued the same course of action even in the absence
of any protected activity. We assume that Munroe’s speech
satisfied the “public concern” requirement. However, we
conclude that her speech was likely to cause—and, in fact,
did cause—disruption and that, under the circumstances, the
School District’s interest outweighed Munroe’s interest, as
well as the interest of the public, in her speech. Because her
speech was not constitutionally protected, we (like the
District Court) need not, and do not, reach Defendants’
causation arguments.
A. The “Public Concern” Requirement
The Supreme Court has explained that speech
implicates a matter of public concern when “it can ‘be fairly
considered as relating to any matter of political, social or
other concern to the community,’ [Connick v. Myers, 461
U.S. 138, 146 (1983)], or when ‘it is a subject of legitimate
news interest; that is, a subject of general interest and of value
and concern to the public,’ [City of San Diego v. Roe, 543
U.S. 77, 83-84 (2004) (per curiam)].” Snyder v. Phelps, 562
U.S. 443, 453 (2011). Defendants acknowledge that,
“[b]ecause of the nature of their employment, speech by
public employees is deemed to be speech about public
concern when it relates to their employment” so long as it is
not speech upon matters of purely personal interest.
26
(Appellees’ Brief at 30.) Accordingly, speech that relates
solely to mundane employment grievances does not implicate
a matter of public concern. See, e.g., Sanguigni v. Pittsburgh
Bd. of Pub. Educ., 968 F.2d 393, 399 (3d Cir. 1992). In
determining whether the speech at issue satisfies this element,
courts should take into account the employee’s motivation as
well as whether it is important to our system of self-
government that the expression take place. See, e.g., Azzaro
v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (en
banc); Versage v. Twp. of Clinton, 984 F.2d 1359, 1364-65
(3d Cir. 1993). “The arguably ‘inappropriate or controversial
character of a statement is irrelevant to the question whether
it deals with a matter of public concern.’” Snyder, 562 U.S.
at 453 (quoting Rankin, 483 U.S. at 387).
“Whether an employee’s speech addresses a matter of
public concern must be determined by the content, form, and
context of a given statement, as revealed by the whole
record.” Connick, 461 U.S. at 147-48. In Miller, we
considered whether a letter written by an adult probation
officer to the president judge of the county court of common
pleas rose to the level of constitutionally protected speech.
Miller, 544 F.3d at 546-51. We acknowledged that Miller’s
statements that the county probation office was being run
ineffectively and that her supervisors called probation clients
“scum” clearly referred to matters of public concern. Id. at
549. However, the Court then explained that her statements
must be viewed in the context of the letter as a whole. Id. at
550. “We can not ‘cherry pick’ something that may impact
the public while ignoring the manner and context in which
that statement was made or that public concern expressed.
27
Our inquiry must also consider the form and circumstance of
the speech in question.” Id. The letter focused on Miller’s
private grievances as an employee, and the statements about
the office’s ineffective operations and the supervisor’s
comments were collateral to the thrust of her complaint. Id.
She clearly stated her reason for writing, i.e., that she would
no longer work under the stressful conditions she had to face
since an individual named Foresman became her supervisor.
Id. “That declaration provides the context for all that
follows.” Id. In short, “Miller was upset with Foresman’s
supervision of her, and could no longer tolerate being
supervised by her,” and, given this context, “the brief
references to an issue of public concern” could not be read as
anything other than “a multi-faceted personal ‘gripe’ not
unlike that voiced in [a questionnaire addressed by the
Supreme Court in [Connick v. Myers, 461 U.S. 138
(1983)].”5 Id. The personal context of the letter, in addition
5
In Connick, an assistant district attorney, who
opposed the district attorney’s plan to transfer her to another
district, distributed a questionnaire to her co-workers
regarding this transfer policy, their level of trust in
supervisors, office morale, the establishment of a grievance
committee, and whether they were pressured into working on
political campaigns. See Miller, 544 F.3d at 548-49
(summarizing Connick). As we explained in Miller, the
Supreme Court, “after viewing the statement [about pressure
to work on political campaigns] in context and considering
the circumstances in which she circulated [the
questionnaire],” concluded that this “one expression of public
concern did not outweigh the District Attorney’s interest in
28
to the tangential relationship between the issues of public
concern and the letter’s overall thrust, “so minimizes any
public concern in the subject of her expression as to tip the
First Amendment balance in favor of her employer.” Id. at
551. We further noted that the letter harshly criticized
Miller’s supervisors, seemingly offered President Judge
Saxton an ultimatum, and was disrespectful to the president
judge himself. Id.
In the end, we stated that Miller, by “launching into an
attack on management and her supervisors,” managed to
“brush ever so gently” against a matter of public concern. Id.
However, “that seemingly serendipitous encounter does not
convert her personal grievance into protected speech.” Id.
According to Defendants, the District Court likewise
determined that Munroe’s speech failed to implicate a matter
of public concern. On the one hand, the District Court stated
that, “although the blog as a whole is dominated by personal
issues, within certain blog posts are occasional passages that
touch upon broad issues of academic integrity, the value of
honor, and students’ lack of effort.” Munroe, 34 F. Supp. 3d
at 537 (footnotes omitted). According to the District Court,
each topic represented a matter of political and social
concern, despite Munroe’s use of strong language. On the
other hand, the District Court proceeded to point out that
“context matters” and to quote from our ruling in Miller. Id.
the efficient operation of his office because the questionnaire
as a whole was of such limited value to the public.” Id. at
549 (citing Connick, 461 U.S. at 154).
29
It then observed that, on the few occasions where Munroe
addressed issues of public concern on her blog, she did so in
order to discuss personal matters. “Far from implicating
larger discussions of educational reform, pedagogical
methods, or specific school policies, Plaintiff mostly
complained about the failure of her students to live up to her
expectations, and focused on negative interactions between
herself and her students.” Id. at 537-38. The District Court
specifically focused on the January 20, 2010 blog post. In
this post, Munroe began by noting that she was blogging at
work and then explained that she was entering grades and
comments for the students’ report cards, which she used to
take very seriously. Instead of engaging in “any number of
important discussions (such as the value of the grading
system, her personal opinion on the effectiveness of assigning
grades, etc.) that might have touched upon issues of public
concern,” Munroe stated that her scorn for some students was
so extreme that she found it difficult even to indicate that they
cooperated in class and that, for some students, none of the
comments fit. Id. at 538.
We believe that the District Court ultimately disposed
of Munroe’s retaliation claim on the basis of the Pickering
balancing test. Accordingly, it went on to observe that, even
though she “may have occasionally written as a private
citizen on matters of public concern,” Munroe’s “opprobrious
tone” was likely to cause a strong reaction from anyone
connected with her high school. Id. After “balancing the
interests of the parties,” id., the District Court reached the
conclusion that “Plaintiff’s speech, in both effect and tone,
was sufficiently disruptive so as to diminish any legitimate
30
interest in its expression, and thus her expression was not
protected,” id. at 541; see also, e.g., id. at 540-41 (“Because
this Court has determined as a matter of law that Plaintiff’s
comments do not merit protection under the balancing test
established by Pickering, . . . .”). Under the circumstances,
the District Court’s discussion of the “public concern”
concept are best understood as part of its application of the
Pickering balancing test. In short, it appears that the District
Court, in balancing the respective interests, accorded minimal
weight to the interests of Munroe and the public in her speech
because “the blog’s ‘overall thrust’ devalues the discussion of
public issues.” Id. at 538 (quoting Miller, 544 F.3d at 550).
Of course, this Court may affirm on any ground
supported by the record. See, e.g., Fairview Twp. v. U.S.
EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985). Defendants
present a strong case for why Munroe’s speech failed to touch
on a matter of public concern. While Munroe contends that
her blog was “replete with references to her life’s experience
as an English teacher in an affluent, suburban Philadelphia
School District” (Appellant’s Brief at 23), she also
acknowledges that this blog was intended as a vehicle to keep
in touch with friends (and accordingly was never meant to be
viewed by the public at large) and that she discussed such
mundane topics as her favorite restaurants and family
vacations. She admits that most of the “84 blog entries”
published between August 9, 2009 and November 25, 2010
had “nothing to do with her school or work.” (Id. at 6 (citing
A208-A254, A412-A452).) According to Munroe, it is
illogical for us to review each and every one of her blog
posts. We clearly should take into account the fact that it was
31
not her blog posts on mundane topics like pie recipes and
movie reviews that “went viral” once the media discovered
her blog. Defendants themselves focused on Munroe’s
student-related blog posts (to the point of distributing
“[c]opies of Mrs. Munroe’s blog pertaining to students” at a
media briefing (A286)).6 However, it is also well established
that (as we explained in Miller) the courts “can not ‘cherry
pick’ something that may impact the public while ignoring
the manner and context in which that statement was made or
that public concern expressed.” Miller, 544 F.3d at 550.
Defendants (rather persuasively) contend that “a plain reading
of Plaintiff’s blog readily reveals that she was actually using
it to vent personal grievances or express her visceral reaction
to her daily experiences.” (Appellees’ Brief at 32.) For
instance, her April 3, 2010 blog post featured a list of “Things
From This Day That Bothered Me,” which were almost all
work-related. (A213.) However, this list appeared in the
middle of a post that included lists of “Artists Who Annoy the
Crap Outta Me and Who I Must Turn Off as Soon as I Hear
the Opening Bars to Their Songs, But Who Are Regarded as
‘Talent’ by Some People” and “Things I Liked About This
Day” (none of which involved her work as a public school
teacher). (Id.) Even the January 20, 2010 blog post—in
which Munroe offered several comments she would like to
see added to the “canned” comment list used for students’
report cards—was phrased in rather personal terms. She
noted, for example, that the grading process was “a complete
6
At oral argument, counsel for Munroe suggested that
only one blog post actually “went viral,” the January 20, 2010
post setting forth her suggested report card comments.
32
pain in the ass” and that her “scornful feelings” about certain
students “reach such fever pitch” that it was difficult for her
to put down “‘cooperative in class.’” (A245.) In the end,
Munroe’s various comments about her students arguably were
no different than, inter alia, her restaurant critique.
Nevertheless, we reluctantly assume for the purposes
of this opinion that Munroe’s speech satisfied the “public
concern” requirement.
As the District Court recognized, there were, at the
very least, occasional blog posts that touched on broader
issues like academic integrity, honor, and the importance of
hard work. In particular, Munroe explained in some detail
how she attempted to address the concept of honor in class
and the often hostile reaction on the part of her students to her
efforts (with one student possibly creating a cheat sheet only
“TWO days after my lofty speeches, and a single day after
they all signed the pledge and pledge wall” (A240)). In the
critical January 20, 2010 blog post, she addressed some
problems she saw with the grading process, specifically
highlighting her past efforts to choose the right combination
of positive and negative comments for the report cards and
indicating that the “canned comments” did not accurately
reflect her assessment of students’ performance. (A245.)
The list of suggested comments then were a rather clumsy
attempt to use humor to highlight her points. Although the
District Court criticized Munroe for failing to bolster her
“personal invective” with “larger discussions of educational
reform, pedagogical methods, or specific school policies,”
Munroe, 34 F. Supp. 3d at 537-38, it also recognized that the
33
inappropriate or controversial nature of a statement is
irrelevant to the “public concern” inquiry, see, e.g., Snyder,
562 U.S. at 453. 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. Munroe’s inclusion of her list of proposed report
card comments in a post critiquing the school district’s
grading process likewise indicated that this blog post
ultimately involved more than a purely personal gripe against
her students or the administration. In contrast, Miller’s letter
set forth what was essentially a personal gripe against
management and her supervisors. See Miller, 544 F.3d at
550-51.
Munroe’s blog posts also became the subject of
extensive media coverage, and Munroe gave several
interviews to national news organizations wherein she
“defended her blog entries, refused to apologize for her
opinions, and attempted to focus attention on the ‘Education
Debate.’” (Appellant’s Brief at 8 (citing A114-A115).) We
note that Munroe acknowledged that these interviews were
driven largely by her desire to defend herself and her actions,
and we also are troubled by the fact that the record and
briefing contains essentially no evidence regarding the
content of these interviews besides Munroe’s general
34
characterization of them.7 In any event, the extensive media
coverage of her blog and the statements she made to the
media generally indicated that Munroe met the “public
concern” element.8 See Snyder, 562 U.S. at 543 (stating that
7
Like Munroe herself, neither Defendants nor the
District Court have devoted much attention to the subsequent
media coverage. In a footnote, the District Court stated that it
focused on the blog posts because the record was clear that
Defendants’ actions were based on the posts, and it indicated
that its analysis would not change upon consideration of the
interviews. The dissent relies heavily on Munroe’s
statements to the media in arguing that the case should be
remanded. We note, however, that the evidence cited by the
dissent is limited to arguments and characterizations sprinkled
in the briefs. We have no doubt that Munroe gave interviews
to the media, but the record is devoid of any actual evidence
as to the content of those interviews, rendering it impossible
to assess her interest in the actual speech and the effect such
speech might have had on the School District. The evidence
cited by the dissent regarding the content or tone of her media
interviews rests primarily on a news article that is not part of
the record.
8
We also question whether the media and the public
were (as Munroe claims) really interested in her thoughts
about the so-called “education debate.” We wonder whether
they were interested instead in the fact that a teacher would
post derogatory comments about her students on her blog and
whether public school teachers can (and should) make such
comments.
35
speech implicates matter of public concern when it is subject
of legitimate news interest).
As part of their discussion of the Pickering balancing
test, Defendants rely on the Second Circuit’s opinion in
Melzer v. Board of Education, 336 F.3d 185 (2d Cir. 2003),
and the ruling by the Seventh Circuit in Craig v. Rich
Township High School District 227, 736 F.3d 1110 (7th Cir.
2013), cert. denied, 134 S. Ct. 2300 (2014). Both circuit
courts ultimately rejected retaliation claims—filed by
educators who alleged that they were terminated for
exercising their First Amendment rights—pursuant to
Pickering. Craig, 736 F.3d at 1118-21; Melzer, 336 F.3d at
197-200. Nevertheless, the Second Circuit also assumed that
a teacher’s First Amendment activity satisfied the “public
concern” element, Melzer, 336 F.3d at 196, and the Seventh
Circuit expressly determined that a guidance counselor’s
speech implicated a matter of public concern, Craig, 736 F.3d
at 1116-18.
In Melzer, a Bronx High School of Science teacher
claimed that his constitutional rights to freedom of
association and speech were violated when the board of
education terminated his teaching position “in retaliation for
his membership in the North American Man/Boy Love
Association (NAMBLA or Association).” Melzer, 336 F.3d
at 188-89. The Second Circuit assumed arguendo that “his
activity centers on a matter of public concern, and is thus
protected.” Id. at 196. The Melzer court indicated that, “even
if we were somehow to parse Melzer’s activity into the public
concern test, most of it would likely pass.” Id. In short,
36
NABMLA’s stated goal is to effect change in public attitudes
and laws regarding the age of consent, and advocacy in
support of such a goal “is certainly a matter of public
concern, regardless of the underlying subject matter.” Id.
The plaintiff in Craig “self-published a short book of
adult relationship advice entitled ‘It’s Her Fault.’” Craig, 736
F.3d at 1113. “And when we say ‘adult,’ we mean it in every
sense of the word—in his book, Craig repeatedly discusses
sexually provocative themes and uses sexually explicit
terminology.” Id. The Seventh Circuit agreed with Craig that
his work dealt with a subject of general interest to the public
(and that the district court erred by concluding otherwise). Id.
at 1115-18. While the district court was correct that some
parts of “It’s Her Fault” (like Craig’s description of his own
sexual exploits) would not relate to a matter of public interest
if viewed in isolation, it was wrong to conclude “that just
because the book happened to touch[ ] on a matter of public
interest (relationships between men and women) does not
mean that it addresses a matter of public concern.’” Id. at
1117. According to the Craig court, “[t]hat is precisely what
public concern means—speech directed to the public need
only address a ‘matter[ ] in which the public might be
interested’ in order to be eligible for First Amendment
protection.” Id. “Viewed as a whole, ‘It’s Her Fault’
addresses adult relationship dynamics, a subject that interests
a significant segment of the public. The proliferation of
advice columns dealing with precisely this topic is a
testament to its newsworthiness.” Id..
37
Although we assume that Munroe’s speech implicated
a matter of public concern, this does not mean that her speech
constituted speech protected by the First Amendment. We
conclude (like the Second and Seventh Circuits) that, even if
Munroe’s speech was a matter of public concern, it was not
constitutionally protected because the Pickering balancing
test weighed in favor of Defendants.
B. Pickering Balancing Test
“On the employee’s side of the scale, we must
consider the interests of both [Munroe] and the public in the
speech at issue.” Dougherty, 772 F.3d at 991. On the other
side of the Pickering balancing test, the Court must address
“the government’s legitimate and countervailing interest, as
an employer, in ‘promoting workplace efficiency and
avoiding workplace disruption.’” Id. (quoting McGreevy v.
Stroup, 413 F.3d 359, 363 (3d Cir. 2005)). The government
need not show the existence of actual disruption if it
establishes that disruption is likely to occur because of the
speech. See, e.g., id. at 992 & n.7. While the inquiry varies
given the nature of the speech at issue, courts typically
consider 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. See, e.g., id. at 991.
“The balancing we must undertake is a fact-intensive inquiry
that requires consideration of the entire record, and must yield
different results depending on the relative strengths of the
issue of public concern and the employer’s interest.” Miller,
38
544 F.3d at 548. In short, the inquiry “involves a sliding
scale,” in which “the amount of disruption a public employer
has to tolerate is directly proportional to the importance of the
disputed speech to the public.” Id. at 549 n.2; see also, e.g.,
Dougherty, 772 F.3d at 991 (“The more tightly the First
Amendment embraces the employee’s speech, the more
vigorous a showing of disruption must be made by the
employer.”).
We begin with Munroe’s alleged interest and the
alleged interest of the public in her blog posts and subsequent
statements to the media. According to Munroe, the District
Court was so preoccupied with her personal complaints (and
the manner in which she chose to express herself) that it
accorded little if any weight to these interests. Munroe
contends that “the public was highly interested in a public
school teacher’s thoughts about the education debate,” and
her “blog, likely because of the strong language used by her,
percolated a national conversation about the performance and
expectations of students in an affluent, suburban public high
school.” (Appellant’s Brief at 26.) Given our reluctance to
assume that the speech at issue here implicated a matter of
public concern in the first place, we determine that the
interests of Munroe and the public in this speech were entitled
to (at best) only minimal weight under the Pickering
balancing test.
In Dougherty v. School District of Philadelphia, 772
F.3d 979 (3d Cir. 2014), this Court recently applied the
Pickering balancing test in favor of an individual who was
fired from his position as “the Deputy Chief Business Officer
39
for Operations and Acting Chief of Operations for the Office
of the Deputy Superintendent within the School District of
Philadelphia” after he publicly disclosed the alleged
misconduct of the school district superintendent in steering a
contract, id. at 982-83. According to Munroe, the
Philadelphia School District attempted to devalue the
constitutional merit of a teacher’s expression on the grounds
that his statements were focused on personal concerns about
his employment—an attempt this Court rejected. She claims
that the District Court similarly erred here in devaluing her
speech. However, she actually quotes from the section of the
Dougherty opinion addressing the distinct question of
whether Dougherty was speaking as a citizen. Id. at 987-90.
While it is undisputed that Munroe was speaking here as a
private citizen, it was, in turn, uncontested that Dougherty’s
speech involved a matter of public concern. Id. at 987.
Furthermore, Dougherty was not a teacher; he instead served
as a business and operations manager for a school district
responsible for, among other things, developing capital
projects and soliciting bids for these projects. Id. at 982-83.
The issue addressed in Dougherty and the facts presented
therefore are readily distinguishable.
We further explained that “‘[s]peech involving
government impropriety occupies the highest rung of First
Amendment protection.’” Id. at 991 (quoting Swineford v.
Snyder Cnty., 15 F.3d 1258, 1274 (3d Cir. 1994)). Noting
that Dougherty’s report to The Philadelphia Inquirer exposing
the superintendent’s alleged misconduct constituted an
archetypical example of this sort of expression, the Court
observed that the defendants had to satisfy a truly heavy
40
burden “[a]gainst the public’s significant interest in
Dougherty’s act of whistleblowing” (a burden that they did
not meet). Id.; see also, e.g., id. at 987 n.5 (“As we have long
recognized, ‘[d]isclosing corruption, fraud, and illegality in a
government agency is a matter of significant public
concern.’” (quoting Feldman v. Phila. Hous. Auth., 43 F.3d
823, 829 (3d Cir. 1994))). Munroe does not claim that she
exposed any corruption, fraud, or other forms of illegal
conduct on the part of Defendants (or anyone else). If
anything, her blog more closely resembled “It’s Her Fault”—
the work of adult relationship advice at issue in Craig—as
opposed to the acts of whistleblowing considered in
Dougherty. While it determined that this book touched on a
matter of public concern, the Seventh Circuit went on to
explain (as part of its Pickering analysis) that a guidance
counselor’s “view of relationships is not the sort of topic of
expression that Defendants would require a compelling
reason to restrict.” Craig, 736 F.3d at 1120.
Given our assessment of the interests of Munroe and
the public in her speech, Defendants were not required to
make an especially vigorous showing of actual or potential
disruption in this case. However, even if we were to assume
arguendo that her speech “possesses the highest value,”
Melzer, 336 F.3d at 198, we would still conclude that
Defendants met their burden. Simply put, “Plaintiff’s speech,
in both effect and tone, was sufficiently disruptive so as to
diminish any legitimate interest in its expression, and thus her
expression was not protected.” Munroe, 34 F. Supp. 3d at
541.
41
Munroe attacks the District Court for focusing on the
opprobrious tone of her blog posts and suggesting that her
expression would be afforded greater protection if she
engaged in a more lofty discussion of educational issues.
Claiming that “[i]t is essential to remember that ‘. . . the very
core of the First Amendment is that the government cannot
regulate speech ‘because of its message, its ideas, its subject
matter, or its content,’” she contends that the District Court’s
content-based approach “has no place in the Pickering test.”
(Appellant’s Brief at 24 (quoting Startzell v. City of Phila.,
533 F.3d 183, 192 (3d Cir. 2008)).) However, the opinion
she cites did not involve a retaliation claim against a public
employer. See Startzell, 533 F.3d at 188 (“The parties to the
events surrounding the October 2004 OutFest [a street
festival] have differing, indeed contrary, views of the
protection that the First Amendment affords to organizers of
events that generate counter-protests and the rights of those
counter-protestors.”). It is well established that a government
has broader powers to regulate speech when it acts as an
employer than when it acts as a sovereign. See, e.g., Waters,
511 U.S. at 671 (plurality opinion); Pickering, 391 U.S. at
568. Accordingly, in order for his or her speech to be
protected by the First Amendment, the employee must speak
as a citizen, the speech must implicate a matter of public
concern, and, of particular significance here, “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.” Dougherty,
772 F.3d at 987. While the inappropriate tone of the speech
may be irrelevant to the “public concern” inquiry, see, e.g.,
Snyder, 562 U.S. at 453, such considerations could play a
42
critical role in ascertaining the existence and likelihood of
disruption. After all, it would seem more likely that an
employee’s comments about his or her supervisors and co-
workers would impair discipline or employee harmony if they
are phrased in less “elevated”—and more “opprobrious”—
terms. 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
First Amendment, for instance, does not require a public
employer “to sit idly by” while its police officers and
firefighters make racial insults against “those they are hired to
serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183
(2d Cir. 2006); see also, e.g., Pickering, 391 U.S. at 569-70
(“The statements are in no way directed towards any person
with whom appellant would normally be in contact in the
course of his daily work as a teacher.”); Craig, 736 F.3d at
1119 (“An employer may have more leeway in restricting the
speech of an employee whose position requires contact with
the public.”).
Similarly, we believe it was appropriate for the District
Court to consider whether Munroe’s speech “would erode the
necessary trust and respect between Munroe and her
students.” Munroe, 34 F. Supp. 3d at 539. Munroe views
such considerations as nothing more than “code” for
punishing unpopular speech, and she contends that they
would allow a school district to fire a teacher on the grounds
of political affiliation, religion, or grading policies, thereby
making a mockery out of the First Amendment itself. (Id. at
27.) She even goes so far as to claim that “[h]igh school
43
students are not required to trust or respect their teachers.”
(Id. at 27-28.) In Pickering itself, the Supreme Court
indicated that it was appropriate to consider whether a
teacher’s expression “either impeded the teacher’s proper
performance of his daily duties in the classroom” or
“interfered with the regular operation of the schools
generally.”9 Pickering, 391 U.S. at 572-73 (footnote
omitted). As the District Court noted, the job of a public
school educator implicates a rather special set of
circumstances and responsibilities. “Plaintiff worked in a
school, where students ‘are impressionable and their
attendance is involuntary.’” Munroe, 34 F. Supp. 3d at 539
(quoting Edwards v. Aguillard, 482 U.S. 578, 584 (1987)).
One generally expects that a teacher would: (1) refrain from
expressing outright hostility and disgust against them on her
blog (at least where the blog itself was not protected by a
password and evidently could be (and, in this case, was)
discovered by the media and members of the school
community); (2) when confronted with her derogatory
9
The Pickering Court determined that a letter a teacher
sent to a local newspaper criticizing the school board’s
handling of bond issue proposals and its subsequent
allocation of financial resources and charging the
superintendent with attempting to prevent teachers from
opposing or criticizing the proposed bond issue constituted
protected speech because, even if he made some erroneous
statements, it could neither be shown nor presumed that his
letter impeded the performance of his daily classroom duties
or interfered with the regular operation of the school.
Pickering, 391 U.S. at 572-73.
44
comments, publicly defended what she had said; and (3) in
the process, singled out specific and identifiable students as
the targets of her ire. As the PSBA helpfully notes in its
amicus brief, the Pennsylvania Code of Professional Practice
and Conduct for Educators states, inter alia, that professional
educators are expected to value “the worth and dignity of
every person, student and colleague alike,” 22 Pa. Code §
235.3, and to exercise care in maintaining confidentiality, 22
Pa. Code § 235.4(b)(9).
“The position of public school teacher ‘requires a
degree of public trust not found in many other positions of
public employment.’” Munroe, 34 F. Supp. 3d at 539
(quoting Melzer, 336 F.3d at 198). A teacher generally acts
in loco parentis for his or her students. Melzer, 336 F.3d at
199; see also Craig, 736 F.3d at 1119 (“The fact that Craig
works closely with students at a public school as a counselor
confers upon him an inordinate amount of trust and
authority.” (citing Edwards, 482 U.S. at 584; Melzer, 336
F.3d at 198)). Like the Second Circuit, “[w]e acknowledge
the truism that community reaction cannot dictate whether an
employee’s constitutional rights are protected.” Melzer, 336
F.3d at 199. The First Amendment generally does not permit
the so-called “heckler’s veto,” i.e., “allowing the public, with
the government’s help, to shout down unpopular ideas that
stir anger.” Id.; see also Craig, 736 F.3d at 1121 (referring to
“heckler’s veto” in which unpopular speech is prohibited on
account of community’s possible reaction). However, there
is a special (perhaps even unique) relationship that exists
between a public school teacher (or other educators, like a
guidance counselor), on the one hand, and his or her students
45
and their parents, on the other hand. Simply put, neither
parents nor students could be considered as outsiders seeking
to “heckle” an educator into silence—“‘rather they are
participants in public education, without whose cooperation
public education as a practical matter cannot function.’”
Craig, 736 F.3d at 1121 (quoting Melzer, 336 F.3d at 199).
We accordingly agree with the Second and Seventh Circuits
that it is generally appropriate to consider the reactions of
students and parents to an educator’s speech under the
Pickering balancing test.10 Id. (“Given the nature of this case,
10
We further note that this case does not involve an
attempt to fire a teacher because of student and parent
reactions to his or her political affiliation or religion.
46
we think it appropriate to consider Defendants’ interests in
preserving a safe counseling environment at Rich Central as
Munroe suggests that the effects of her speech on the
trust and respect of her students should not be considered
because this Court’s ruling in Dougherty did not identify such
effects as a factor to be taken into account under the Pickering
balancing test. We have already noted that Dougherty was
not a teacher—he was a business and operations officer.
Dougherty, 772 F.3d at 982-83. We also observed in
Dougherty that “the test for disruption varies depending upon
the nature of the speech” and that the “factors a court
typically considers” include whether the speech impedes the
performance of the speaker’s duties or interferes with the
regular operations of the enterprise. Id. at 991; see also, e.g.,
Pickering, 391 U.S. at 572-73 (asking whether speech
impeded teacher’s proper performance of daily duties in
classroom or interfered with regular operation of the schools
generally). Furthermore, we agree with Munroe that her
relationship with Defendants was not the kind of relationship
that required personal loyalty or confidence. See, e.g.
Dougherty, 772 F.3d at 992 (“[B]ased on the District Court’s
reading of the record, the evidence does not compel the
conclusion that Dougherty’s relationship with Dr. Ackerman
[the superintendent] or Dr. Nunery [the deputy
superintendent] is ‘the kind of relationship[ ] for which it can
persuasively be claimed that personal loyalty and confidence
are necessary to [its] proper functioning.’” (quoting
Pickering, 391 U.S. at 570)). However, a defendant need not
establish the existence of such a relationship to prevail under
Pickering.
47
part of our analysis.”); Melzer, 336 F.3d at 199 (“Any
disruption created by parents can be fairly characterized as
internal disruption to the operation of the school, a factor
which may be accounted for in the balancing test and which
may outweigh a public employee’s rights.”).
We find that Munroe’s various expressions of hostility
and disgust against her students would disrupt her duties as a
high school teacher and the functioning of the School District.
Munroe, for her part, does not really deal with the specific
language she used in her blog posts. Instead, she tends to
describe her student-related comments in rather general
terms, e.g., she purportedly made comments about her
students’ unwillingness to work hard and cooperate in school,
the lack of student accountability, and the lack of support for
teachers on the part of both parents and administrators.
However, Munroe’s list of “proposed report card comments”
(Appellant’s Brief at 25) included statements like—“A
complete and utter jerk in all ways,” “Rat-like,” “Lazy
asshole,” “Sneaky, complaining, jerkoff,” “Dresses like a
street walker,” “Rude, belligerent, argumentative fuck,” “Am
concerned your kid is going to come in one day and open fire
on the school. (Wish I was kidding.),” “I hear the trash
company is hiring,” “Utterly loathsome in all imaginable
ways,” and “There’s no other way to say this: I hate your
kid” (A245-A246). Munroe went so far as to include a
depiction of a school bus at the top of the post—together with
a comment disparaging special needs students: “I Don’t Care
If You Lick The Windows, Take The Special Bus Or
Occasionally Pee On Yourself . . . You Hang In There
Sunshine, You’re Friggin Special.” (A245 (emphasis
48
omitted).) Even if intended as part of a comedic exercise,
such characterizations speak for themselves. Simply put, they
were despicable. Furthermore, Munroe, in multiple blog
posts, ranted against her own students. To give just a few
examples, she called them “the devil’s spawn” (A237),
“Noisy, crazy, sloppy, lazy LOAFERS” (A440), and “rude,
disengaged, lazy whiners” (id.). As the District Court then
explained, “[t]he discovery of the blog undermines Plaintiff’s
early assumptions that her small readership and relative
anonymity would protect her personal comments from
reaching their subjects, especially as the blog was not
password protected.” Munroe, 34 F. Supp. 3d at 538. In
addition, students would have been able to identify
themselves or their classmates in at least some of her
derogatory comments. Parents likewise could occasionally
identify both themselves and their children from her “vivid
and personal appraisal of [student] character.” Id. at 539. In
her blog post identifying the “Things From This Day That
Bothered Me,” Munroe singled out “the jerk who was out 3
days around our last assessment because his family took him
on trip to Puerto Rico” and who “was out again today (the
date of another assessment) because his family took him to
the effing Master’s golf shit over Easter break.” (A213.) She
also pointed, inter alia, to the fact that she called home about
an obnoxious student the week before the break and, even
though his mother “said they told him to ‘knock it off,’” the
first thing he did when he saw her was to mock her failed
effort to ruin his weekend. (Id.) Munroe claimed in another
blog post that a female student (described as the girl in the
back in pink) made a cheat sheet only two days after
Munroe’s speech about honor and integrity and one day after
49
the class signed an honor pledge. Even the “report card
comments” she wished to add to the “canned” comment list
were often phrased in suspiciously specific terms.
We also observe that Munroe “did not take a
conciliatory approach” in her subsequent media appearances.
Id. at 538. Instead, she purportedly defended her blog entries
and refused to apologize for the comments. Students and
parents were thereby presented with a teacher who expressed
hostility and disgust against her own students and who, when
publicly confronted with her comments, not only refused to
apologize—but even went so far as to defend her derogatory
statements in the local and national media.
It would be an understatement to say that Munroe’s
speech caused rather negative reactions on the part of both
students and their parents. Likewise, it is wrong to claim (as
Munroe does in her appellate brief) that “the School District
[at most] demonstrated that some township residents were
unhappy with Munroe’s comments.” (Appellant’s Brief at
28.) According to CB East’s principal, the students were
“furious” and “livid,” and the school was “like a ticking time
bomb.” (A397.) “To say it was a disruption to the learning
environment is an understatement.” (A398.) Lucabaugh then
began to receive e-mails from parents indicating that they did
not want Munroe to teach their children, and (as the District
Court noted) students were permitted to opt out of Munroe’s
class. The School District hired another person to “shadow”
Munroe. In other words, another educator was paid to teach
the same exact schedule as Munroe herself. While Munroe
views the Defendants’ decision to inform residents in August
50
2011 that they would honor all “opt-out” requests as an
unprecedented step meant to set her up for failure, she also
acknowledged in her deposition testimony that the whole
situation was probably unprecedented. In fact, it appears
uncontested that Lucabaugh continued to receive more and
more e-mails from concerned parents throughout the summer
and peaking in June and July of 2011. “[N]ow I’m talking
over seventy-five people, eighty people, ninety people, one
hundred people, a hundred and—and it was growing.”
(A399.) When a teacher’s derogatory comments about his or
her students cause numerous parents to tell the school district
that they “don’t want her as my child’s teacher” (id.), it is
appropriate to conclude that his or her speech “‘impedes the
performance of the speaker’s duties’” as a teacher.
Dougherty, 772 F.3d at 991 (quoting Rankin, 483 U.S. at
388). Such speech then “‘interferes with the regular
operation of the enterprise’” because the school district hired
another teacher to accommodate the sheer and unprecedented
number of parental “opt-outs” it received. Id. (quoting
Rankin, 483 U.S. at 388); see also Pickering, 391 U.S. at 572-
73 (considering whether teacher’s speech “either impeded the
teacher’s proper performance of his daily duties in the
classroom” or “interfered with the regular operation of the
schools generally” (footnote omitted)).
Munroe does point out that she was allowed to return
to work the following school year (after her paid suspension
and maternity leave ended) and that, after then teaching for a
full year, she was ultimately terminated—supposedly on
account of her poor performance. When she returned to
work, Lucabaugh informed the media that “[n]o one here is
51
contending that she can’t say these things ... legally” and that
“she has a legal right to return.” (A286.) According to
Munroe, Defendants thereby recognized that Munroe’s right
to free expression outweighed any disruption and accordingly
chose not to terminate her when she returned to work in
August 2011. She claims that “the School District cannot
now be heard to say that a threat of disruption to the operation
of its schools outweighed Munroe’s rights.” (Appellant’s
Brief at 31.) Munroe further contends that the District Court
evidently determined that disruption automatically barred her
claim, instead of treating such disruption as a factor to be
weighed as part of what this Court in Dougherty recognized
as a true balancing test.
While Defendants’ actions here were somewhat
unusual and further complicate an already difficult situation,
we do not agree that they are now somehow estopped or
barred from claiming that the actual and potential disruption
caused by Munroe’s speech outweighed her free speech
rights—or that such actions on their part otherwise meant that
there was no disruption (or that the Pickering balancing test
necessarily weighed in favor of Munroe). After all,
Defendants need not make out a particularly strong showing
of disruption in this case given the weakness of Munroe’s
interest, as well as the interest of the public, in her speech.
See, e.g., Miller, 544 F.3d at 549 n.2. In Dougherty, we
acknowledged that Dougherty’s speech caused actual
disruption to the school district, but we then highlighted the
absurdity of allowing corrupt officials to punish their
whistleblowing subordinates because the speech had a
somewhat disruptive effect. Dougherty, 772 F.3d at 992-93.
52
Munroe, unlike Dougherty, was not a whistleblower. The
District Court, in any event, appropriately took into account
the competing interests and then determined that the speech at
issue here was not protected because the disruption
diminished any legitimate interest in its expression.
Furthermore, the 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. It appears that Munroe could have been fired when
Defendants became aware of her blog posts (although the fact
that she was scheduled to begin her maternity leave may have
complicated the situation) or at least at the beginning of the
next school year. But Defendants should not be held liable
for violating the First Amendment simply because they
(rather generously) hired another teacher and permitted
Munroe to return to work or because of what was said at the
principal’s media briefing. As the District Court also noted,
Lucabaugh did not explain whether his assessment was
premised on the United States Constitution, state law, or the
terms of Munroe’s employment contract. In fact, C.B. East’s
principal made it clear that Munroe’s speech caused
disruption and harmed C.B. East’s students, explaining that
“[w]hat is at the heart of this issue, however, is the large-scale
disruption her comments created, and the ensuing damage
they have caused the young men and women to whom she
was alluding.” (A286.)
53
In Melzer, the Second Circuit assumed that Melzer’s
activities on behalf of NAMBLA possessed the highest value
under the First Amendment and placed a heavy burden on the
board of education to justify his dismissal. Melzer, 336 F.3d
at 198. However, it still concluded that, given the nature of
his position as a public school teacher, “the disruption they
cause is great enough to warrant the school’s action against
him.” Id. While some parents and students expressed
support for his free speech rights and there were certain minor
discrepancies with respect to the reported disruption, “[i]t is
nonetheless entirely reasonable for the Board to believe that
many parents and students had a strong negative reaction to
him, and that such a reaction caused the school to suffer
severe internal disruption.” Id. A psychological expert
testified that a teacher with Melzer’s beliefs would provoke
anxiety for the average student (e.g., he or she would be
unable to concentrate or would be uncomfortable asking for
help after class). Id. at 198-99. The Second Circuit pointed
out that, while “[h]e acts in loco parentis for a group of
students that includes adolescent boys,” he simultaneously
“advocates changes in the law to accommodate his desire to
have sexual relations with such children.” Id. at 199. “We
think it is perfectly reasonable to predict that parents will fear
his influence and predilections. Parents so concerned may
remove their children, thereby interrupting the children’s
education, impairing the school’s reputation, and impairing
educationally desirable interdependency and cooperation
among parents, teachers, and administrators.” Id. In fact,
several parents threatened to remove their children from the
school, and Melzer candidly admitted that it would be
54
difficult for him to decide whether to report an incident of
child molestation.11 Id. at 191, 199.
Similarly, we find it significant that the Seventh
Circuit determined that the defendants’ interests in remedying
the potential disruption caused by a guidance counselor’s
book of adult relationship advice outweighed his own speech
interest. Craig, 736 F.3d at 1119. As the Craig court
explained, “Defendants’ assessment of how Craig’s students,
and particularly his female students, would respond upon
reading or hearing about the hypersexualized content looms
large in our analysis.” Id. For instance, female students
could easily feel uncomfortable asking for his advice given
11
According to the Second Circuit, “the employee may
still carry the day [even if the government prevails in the
balancing test] if he can show that the employer’s motivation
for the discipline was retaliation for the speech itself, rather
than for any resulting disruption.’” Melzer, 336 F.3d at 193
(citing Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.
1996)). The Second Circuit found no proof that the board of
education’s decision to terminate Melzer was motivated by
his NAMBLA membership (which was known to the board
for a number of years). Id. at 199-200. Unlike Melzer,
Munroe has not raised this issue before either the District
Court or this Court. In fact, Munroe failed to address the
Melzer opinion in her District Court briefing, even though
Defendants addressed it in their own briefs. She likewise
fails to mention this opinion in her appellate briefing
(although it was cited by the District Court, and Defendants
rely on the Second Circuit’s ruling in their appellate brief).
55
“his professed inability to refrain from sexualizing females.”
Id. at 1120. Likewise, some students could be apprehensive
about speaking with Craig on account of his derogative view
of women. Id. He specifically claimed in his book—which,
after all, was entitled “It’s Her Fault”—that women do not
succeed in relationships because of their tendency to act
based only on their emotions and emphasized “the importance
of a woman’s sexual ‘submissiveness’ to her male partner.”
Id. The Seventh Circuit understandably asked whether a
female high school student would really speak with a
guidance counselor about future career options knowing he
believed women are not inclined to rational thought or go to
him to discuss relationship issues given his views about
sexual submissiveness.12 Id.
Obviously, Munroe does not support sexual relations
with minors, and she likewise did not publish a book
confessing to her inability to refrain from sexualizing her
students. However, she still expressed hostility and disgust
12
Defendants and the District Court have also cited to
a 1981 ruling by the Sixth Circuit. In Anderson v. Evans, 660
F.2d 153 (6th Cir. 1981), the panel majority concluded that
the defendants did not violate the First Amendment when
they terminated an elementary school teacher who made
racially charged remarks that, inter alia, had a detrimental
effect on the school and the community it served, id. at 159.
In short, “the interest of the school board in maintaining an
efficient and regularly functioning school system and in
employing effective teachers outweighed Mrs. Anderson’s
interest in making the remarks.” Id.
56
against her own students. “Is it unreasonable to think a [CB
East student] who learned that[, to give just one example,
Munroe referred to her students as ‘the devil’s spawn’
(A237)] may decide against” asking her advice? Id.
Likewise, how could students be expected to participate in a
class when a teacher indicated that she wished she could use
terms like “Rat-like” on their own report cards (even if her
list was intended as a humorous exercise)? (A245.)
Accordingly, we determine that, pursuant to the Pickering
balancing test, Munroe’s speech did not constitute speech
protected by the First Amendment.
III.
We will affirm the order of the District Court granting
Defendants’ motion for summary judgment.
57
Natalie Munroe v. Central Bucks School District, et al.
No. 14-3509
_________________________________________________
AMBRO, Circuit Judge, dissenting
My colleagues focus on Ms. Munroe’s claim that she
was retaliated against for authoring offensive blog posts.
This is an issue that is closer than they suggest. However, I
need not deal with it, as there is more to Munroe’s lawsuit
than blog posts to friends that became public. A critical
component is the allegation that the TV and print interviews
Munroe gave following her suspension by the School District
factored into its discharge decision 15 months later.
Unexplainably, the District Court declined to address this
argument, saying only in a footnote that, even if it had
considered the interviews, that wouldn’t have changed its
decision to enter summary judgment. See Munroe v. Cent.
Bucks Sch. Dist., 34 F. Supp. 3d 532, 538 n.65 (E.D. Pa.
2014). That is not very satisfying. If Munroe had a First
Amendment right to say her piece before a national audience,
and no doubt she did (even the School District acknowledged
this), then summary judgment is inappropriate to the extent
her TV appearances, coupled with her comments made to
print media, played a role in her dismissal and the School
District wouldn’t have taken the same action absent them.
See Miller v. Clinton Cnty., 544 F.3d 542, 548 (3d Cir. 2008).
Like the District Court, my colleagues duck this
argument. Their out, however, is that Munroe didn’t
“devote[] much attention to the subsequent media coverage,”
Maj. Op. 35 n.7, and provided “essentially no evidence
regarding the content of the[] interviews besides [her] general
characterization of them,” id. at 34–35. Because I do not
share that assessment and would reverse to allow a jury to
consider whether Munroe’s interviews with the media
1
contributed to the allegedly retaliatory dismissal, I
respectfully dissent.
The first order of business is to determine whether
Munroe adequately preserved the claim that she was
retaliated against for discussing her suspension with various
news organizations. Parting ways with the conclusion of my
colleagues, see Maj. Op. 35 n.7, I think the answer is a
resounding yes. Though Munroe may not have made the
claim the focus of her case, she certainly raised it at every
stage in the District Court and again on appeal. In her
complaint, she alleges that the School District punished her
for appearing on “CBS, ABC, NBC, CNN, Fox News” and
giving interviews to, among others, “Time Magazine,
Reuters, the Associated Press, [and] the Philadelphia
Inquirer,” and that all these appearances “were protected
under the First Amendment.” Am. Compl. ¶¶ 23–29.
Likewise, her response to the School District’s summary-
judgment motion argues that she “engaged in two types of
speech, each of which [is] protected under the First
Amendment[:] First, [she] blogged to her friends and family
about her experiences at CB East . . . . [;] [and] [s]econd,
[she] engaged the media in a very public debate about her
blog and the Education Debate discussed in [it].” Pl.’s Opp’n
Defs.’ Mot. Summ. J. 15–16. And the District Court
apparently thought enough of the argument to address it
(though only in a footnote), positing that “the analysis would
not change . . . upon consideration of the interviews [Munroe]
gave to the media.” Munroe, 34 F. Supp. 3d at 538 n.65.
Finally, on appeal in the section of her brief titled
“Statement of the Issue Presented for Review,” Munroe poses
the following question: “Did the District Court err in holding
that a public school teacher’s opinions about matters of public
concern, published in her blog and stated in interviews to
various media outlets, were unworthy of First
2
Amendment . . . protection under the Pickering v. Board of
Education [391 U.S. 563 (1968)] balancing test?” Munroe
Br. 1 (emphasis added). She also addresses the claim in the
section of her brief titled “Rulings Presented for Review,”
Munroe Br. 14, and develops her argument in later sections,
see id. at 26 (asserting that her media appearances implicated
a matter of public concern), id. at 28 (pointing out that “there
was no evidence offered to demonstrate that [her] blog
entries, or her interviews with the media, prevented her from
doing her job as a high school English teacher” (emphasis
added)). Even the School District deems Munroe’s argument
about the media interviews important enough to address. It
contends that the interviews shouldn’t receive First
Amendment protection and, in any event, “there is no genuine
issue of any material fact that Plaintiff would have been
terminated even in the absence of her blog and media tour.”
School Dist. Br. 51 (emphasis added). In this context,
Munroe has adequately raised, both before the District Court
and on appeal, whether her media interviews were a reason
for the retaliation she alleges. I thus move to the merits.
To succeed on her claim, Munroe must establish that
the interviews were “protected by the First Amendment
and . . . [were] a substantial or motivating factor” in the
allegedly retaliatory discharge. Dougherty v. Sch. Dist. of
Phila., 772 F.3d 979, 986 (3d Cir. 2014); see also Miller, 544
F.3d at 548. If she succeeds, the burden shifts back to the
School District to show it would have fired her regardless
whether she had told her story before a national audience.
The First Amendment question—which, per Pickering,
balances “the interest in freedom of expression against the
employer’s interests[—]is to be done by the judge, not the
jury.” Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 198
(7th Cir. 1996) (Posner, J). The causation issues, by contrast,
the jury decides. See Watters v. City of Phila., 55 F.3d 886,
892 n.3 (3d Cir. 1995).
3
The threshold issue in determining if Munroe’s speech
was protected by the First Amendment is whether her
interviews with the national media implicated a matter of
public concern. See Craig v. Rich Twp. High Sch. Dist. 227,
736 F.3d 1110, 1115 (7th Cir. 2013). If she can show this,
the School District’s interest in promoting an “effective and
efficient” learning environment is balanced against Munroe’s
interest in commenting on her suspension. Id. at 1118
(quoting Chaklos v. Stevens, 560 F.3d 705, 714 (7th Cir.
2009) (internal quotations marks omitted)). The outcome of
that test, called Pickering balancing, yields the answer to
whether the First Amendment protects Munroe’s TV
appearances and print interviews.
On the public-concern question, I see no difficulty (nor
apparently do my colleagues, see Maj. Op. 34–35) in
concluding that Munroe’s TV appearances involved a matter
of “legitimate news interest,” San Diego v. Roe, 543 U.S. 77,
84 (2004) (per curiam), or a matter “in which the public
might be interested,” Dishnow, 77 F.3d at 197. See also
Eberhardt v. O’Malley, 17 F.3d 1023, 1026 (7th Cir. 1994)
(Posner, J.) (“The First Amendment protects entertainment as
well as treatises on politics and public administration.”). The
relevant sequence of events is instructive.
After the public learned of Munroe’s blog, Central
Bucks High School East (“CB East”) Principal Abram
Lucabaugh moved swiftly to suspend her and issued a
televised statement explaining the School District’s decision
to do so. Caught off guard by the public announcement,
Munroe “felt . . . it was necessary to share [her] side of the
story.” Munroe Dep. Tr. 58:5–12. Luckily for her, the
suspension became a national news story, and when it did a
number of highly prominent news programs invited her to
discuss the situation on live TV. Among them were ABC’s
Good Morning America and Fox News’s Fox and Friends
4
and Justice with Jeanine. Time Magazine and The
Philadelphia Inquirer, among others, likewise wanted the
scoop. While Munroe maintains she focused on whether
“today’s youth is overindulged, underworked, and self-
entitled” and whether “their parents and schools have been
complicit in creating this result,” Pl.’s Reply Mem. Law Opp.
Defs.’ Mot. Summ. J. 3, the School District argues otherwise.
It contends that Munroe used the interviews to defend herself,
not to engage in a public debate. The likely answer is a
combination of both, but the key is that Munroe’s media tour
focused on an event that had already captured the public’s
attention: the suspension of a public school teacher for
criticizing her students on a publicly available blog. As one
prominent publication put it, Munroe found “herself in the
middle of a swirling online debate—not over what she did,
but over what she said about the sometimes harsh realities of
the 21st century classroom.” Kayla Webley, How One
Teacher’s Angry Blog Sparked a Viral Classroom Debate,
TIME (Feb. 18, 2011), http://content.time.com/time/printout/
0,8816,2052123,00.html. Munroe’s intimate familiarity with
the facts made her account all the more newsworthy. Viewed
in that light, Munroe’s failure to introduce in court a play-by-
play of her media appearances is of no consequence.
Having concluded that Munroe’s media tour
implicated a matter of public concern, I turn to the Pickering
balancing portion of the analysis. On that front, to repeat, a
court must “balance the employee’s interest in engaging in
her speech with the employer’s countervailing interests.”
Miller, 544 F.3d at 548. In the school context, those interests
include a teacher’s ability to fulfill her duties in the
classroom. See Melzer v. Bd. of Educ. Dist. of City of N.Y.,
336 F.3d 185, 198–99 (2d Cir. 2003). “[T]he amount of
disruption a public employer has to tolerate is directly
proportional to the importance of the disputed speech.”
Miller, 544 F.3d at 549 n.2.; see also Dishnow, 77 F.3d at 197
5
(noting that the public employer must show that it “had a
convincing reason to forbid the speech” in question). Though
the School District argues that its “interest in curtailing
speech that affected [CB East]’s operation [is] great,” School
Dist. Br. 40, it has pointed to nothing suggesting that
Munroe’s appearances in the national media (as distinct from
her blog) interfered with her ability to educate her students.
Nor has it argued that Munroe’s decision to tell her side of a
story that spawned a spirited public debate negatively
affected employee morale. My colleagues have no answer
and say only that the First Amendment doesn’t require a
school district to continue employing a teacher “who, when
publicly confronted with her comments, not only refused to
apologize—but even went so far as to defend her derogatory
statements in the local and national media.” Maj. Op. 50.
The most that can be said of these arguments is that
Munroe didn’t “take a conciliatory approach” when
interviewed and “fanned the flames of controversy.” Munroe,
34 F. Supp. 3d at 538. But, even if true, it says nothing about
whether this made the job of running CB East more difficult.
Furthermore, it is hard to take seriously the School District’s
disruption argument when it did virtually nothing to quell the
disorder that supposedly prevented CB East from satisfying
its educational mission. After Munroe’s blog became public
and the ensuing firestorm of publicity, the School District
could presumably have asserted that its educational
obligations outweighed Munroe’s free-speech rights and
discharged her. But it opted instead to suspend her, which
was of minimal import to Munroe, as this coincided with her
planned maternity leave. The School District had a second
opportunity to dismiss (or, at the very least, transfer) Munroe
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when, after her suspension was lifted,1 CB East students
opted out of her class en masse in August 2011. But again
the School District didn’t do so. The result, in my view, is
that the School District forfeited its right to match its
operational interests against Munroe’s free speech interests.
For these reasons, I see no path to conclude that the
Pickering balance weighs in the School District’s favor.
That takes me to the final two questions, both of which
deal with causation. First, were Munroe’s interviews a
motivating factor in the School District’s discharge decision?
See Watters, 55 F.3d at 892 (noting that, to succeed on a
retaliation claim, a “plaintiff must show that the protected
activity was a substantial or motivating factor in the alleged
retaliatory action”). If they were, has the School District
carried its burden to show that it would have reached the
same decision regardless of the interviews? See id.
Precedent counsels us to tread carefully when deciding issues
of causation on summary judgment—all the more so here.
That School District officials were upset about
Munroe’s media tour is made plain by two “smoking-gun”
emails. After seeing Munroe appear on Fox News, a School
District director, John Gamble, told his colleagues he was
“confident [the Board] [was] doing the right thing.” To
remove any doubt about what “doing the right thing” refers
to, we need only look at the bottom of Gamble’s email, which
makes clear it was sent in response to the “termination plan”
Superintendent N. Robert Laws had circulated. At the end of
that email, Laws too revealed how he felt about Munroe’s
1
Principal Lucabaugh announced that Munroe had a “legal
right” to blog about her students and a “right to return” to CB
East. He also indicated that a transfer “would be both
irresponsible and further disruptive.”
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media tour, see id. (“I will not be drug [sic] into the mud of
TV news entertainment . . . .”), and that “Fox news ha[d]
called [him] 6 times . . . to appear on the Justice with Jeannie
[sic] show,” id.
Against this background, I am persuaded that Munroe
has, at a minimum, created a jury question about whether her
media interviews factored into the discharge decision.
Nothing the School District has argued convinces me
otherwise, i.e., that the causal connection “question is so free
from doubt as to justify taking it from the jury.” Revels v.
Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (quoting Naucke
v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002)).
Despite its best attempt to shine a light on Munroe’s
purported poor performance as the reason for her firing, the
School District’s argument is unpersuasive if not
disingenuous. A brief reiteration of Munroe’s employment
history at CB East is in order.
After being hired to teach English in 2006, Munroe
was awarded tenure only four years later in March 2010, on
the recommendation of Principal Lucabaugh (who also wrote
of Munroe in June 2008 that “[s]he is a consummate educator
with a sparkling future”). During that time, her teaching
record was pristine—she received the highest mark available
(“satisfactory”) in eight consecutive performance evaluations.
But then, on June 15, 2011—only a few months after her blog
became known and she appeared on the media to defend her
position in response to Lucabaugh’s televised
announcement—Munroe received her first unsatisfactory
evaluation. Among the concerns noted was Munroe’s sudden
“inability to connect to . . . students and make them feel that
she cares about them” as well as the “overuse of vocabulary
assignments and vocabulary assessments” and “inappropriate
use of a ‘nanny cam’ during teaching hours.” Munroe’s
troubles carried over to the next semester when school
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officials began dropping into her classes unannounced. The
drop-ins, according to Munroe, became “calculated and
unrelenting,” which led to her bosses “nitpicking everything
[] [she] did.” Could anyone blame Munroe for believing they
“had an agenda”?
Seven unannounced observations later, Munroe
received her second unsatisfactory evaluation on January 20,
2012. Not unexpectedly, she received a third and final
unsatisfactory evaluation on June 1, which highlighted her
continued performance issues and failure to submit lesson
plans using the “Central Bucks School District designed
template”—the latter a requirement to which she was never
held until she began receiving unsatisfactory evaluations.
Termination inevitably followed in June 2012.
In short, I have no doubt the School District was well
aware that firing Munroe for her blog posts and media tour
would land it in constitutional hot water. More than enough
evidence suggests that firing her on performance grounds was
a pretext for its real reason—she had spoken out to friends on
a blog, it became public, School District officials were upset
and proposed her termination, they decided to wait, the once-
sterling evaluations of Munroe immediately became negative,
and she was fired. The bottom line: too many signs suggest
this was all a set-up that a jury needs to sort out. I thus
respectfully dissent.
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