Detschelt v. Norwin School District 23-cv-1402 (W.D. Pa. Dec. 20, 2024). The District Court for the Western District of Pennsylvania dismisses complaint filed by school director which alleged that statement issued by the school district and superintendent to the community in response to his social media posts constituted unconstitutional retaliation in violation of the First Amendment.
BACKGROUND
On October 25, 2022, Deschelt, a duly elected member of the Norwin Board of Education (the “School Board” or the “Board”), posted an image of a satirical Halloween costume package (the “Meme”) on the Norwin Area Talk Facebook page, that contained and displayed the phrase “[Expletive deleted] Retard” in reference to a person depicted with a “Medical Mask” and “Virtue Cape” who has had “3 [presumably Covid] Boosters” and has a “Sense of Superiority.”
Shortly after posting the meme, Deschelt removed it, stating, in part: “Sorry if anyone was offended by my costume meme . . . . I’ve removed it due to some people reaching out feeling strongly against it.” On another Facebook group, Deschelt wrote, in part: “…but I still stand by the humor of the overall meme and hope it makes the libs ‘Reeeeeeeeee.’”
On October 28, 2022, District Superintendent Taylor informed the Board that he had drafted a statement and, later that day, sent the statement to the District’s 7,713 stakeholders. The statement provided, in part:
The District was made aware of social media posts shared on Facebook by a member of the Norwin Board of Education, Mr. Alex Detschelt, containing the “R-word” and later edited to include the “Reee” phrase. The District recognizes that many found his posts to be insensitive and offensive not only to our families of students with special needs but to members of our school community.
On October 28, 2022, the District also issued a press release that was substantially identical to the statement.
Deschelt sued the District and Superintendent Taylor, alleging that they devised, issued, and publicly released the District’s statement and press release in retaliation for Detschelt posting the Meme and subsequent comments. Detschelt further alleged that the District’s statement and press release were issued for the sole purpose and effect of chilling and deterring Detschelt “from engaging in pure speech and expressive conduct” protected by the First Amendment, “activity such as criticizing the administrative regime of the School District or privately posting potentially offensive memes on private Facebook pages that are nonetheless with in the ambit of speech covered by the First Amendment.”
DISCUSSION
To plead a claim of retaliation for the exercise of First Amendment rights, a plaintiff must adequately allege the following three elements: “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally protected conduct and the retaliatory action.”
Initially, the court agreed with Detschelt that he engaged in constitutionally protected conduct when he posted the meme and meme-related comments – matters of public concern – as a private citizen because his posts referred critically to Covid-related measures and “liberals” shortly before an election.
As for the second element, because the alleged retaliatory conduct by the District was its own official speech (i.e., the statement and press release), the court first had to determine whether such official speech can be legally retaliatory. The court concluded that the press release and statement were not retaliatory.
“Official speech will only constitute a retaliatory act if it is of a ‘particularly virulent character.’” Under this test, the court, considering the allegedly retaliatory speech at issue, asks “‘whether there was a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.’” The court concluded that the statement and press release did not meet the virulent character test because they explained that the District was made aware that Detschelt had posted the meme that “many found . . . to be insensitive and offensive” and conveyed that the District “does not condone nor support the use of these terms in any capacity” and that Detschelt’s postings “represent his personal views and do not represent, nor reflect, the views of the Norwin School District, the District Administration, or the Norwin Board of Education.” In other words, the court dismissed the complaint because the statement and press release in no way communicated “a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.
PRACTICAL ADVICE
Detschelt demonstrates that while school board members have First Amendment rights, school districts and school boards also have First Amendment rights. In other words, school employees and other board members have the right to rebut and refute the comments made by a fellow board member. When those rights conflict with one another, speech must be of a particularly virulent character to violate the First Amendment. When issues like this arise, schools should work with their solicitors to ensure any statements do not cross the threshold from protected rebuttal speech to retaliatory speech.
