PENNSYLVANIA — The Pennsylvania school district that fired a teacher who criticized and insulted her students on her personal blog did not violate her First Amendment rights, a federal appeals court ruled Sept. 4 in a 2-1 decision.
The U.S. Court of Appeals for the Third Circuit ruled that high school English teacher Natalie Munroe’s blog posts, which contained profane rants calling students “lazy,” “frightfully dim” and “rat-like,” constituted matters of public concern according to the Pickering test, a legal balancing test of free speech rights for public employees based on Pickering v. Board of Education (1968).
But the school district’s interests trumped those of Munroe, whose inflammatory comments created disruption, said Judge Robert Cowen in the majority opinion.
“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,” Cowen said.
Kimberly Boyer-Cohen, an attorney who represented the school district, said in an interview Wednesday that she was pleased with the ruling.
Munroe’s blog, which she started in 2009, was publicly available online but intended for Munroe’s family and friends, according to court documents. Although much of the blog contained innocuous material such as recipes and movie reviews, the posts containing derogatory remarks came to light in 2011 and began to be circulated by students.
In one post that featured prominently in the court ruling, Munroe lamented the “canned” comments available for teachers to evaluate students on their report cards, adding her own list of negative comments she wished she could write, such as “seems smarter than she actually is,” “lazy asshole” and “one of the most annoying students I’ve had the displeasure of being locked in a room with for an extended time.”
The blog posts caused a frenzy among many parents, who asked that their children be placed in other classes.
“To say it was a disruption to the learning environment is an understatement,” said principal Abram Lucabaugh in court documents.
The school district claimed that it ultimately fired Munroe not for the blog posts, but for unsatisfactory performance evaluations, which dissenting Judge Thomas Ambro characterized as a contrived pretext for her dismissal.
“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,” Ambro said in his dissent. “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.”
Ambro also argued that Munroe’s interviews with news media could have played a role in her firing.
He pointed out that after Munroe appeared on Fox News defending her comments, school district official John Gamble told colleagues in an email that 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,” Ambro said, referring to this correspondence as “‘smoking-gun’ emails.”
The ruling affirmed a lower court’s judgment against Munroe last year, which concluded that “[Munroe’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.”
Steven Rovner, an attorney for Munroe, told Reuters on Friday that Munroe may request that the entire Third Circuit review her case.
“We believe the courts are not right on this issue, and we’re still fighting for Natalie and her constitutional rights,” he said in the interview. Neither Rovner nor Stan Cheiken, another attorney representing Munroe, responded to the Student Press Law Center’s requests for comment as of Thursday.
The Student Press Law Center Executive Director Frank LoMonte said the case was a straightforward application of First Amendment precedent.
“As far as the First Amendment analysis goes, the majority was just doing exactly what the Supreme Court has told them to do,” he said. “As a legal matter, leaving this teacher’s career interests aside, this is not a bad decision for the First Amendment at all.”
The outpouring of parent concerns — which culminated in many parents “opting out” their children from Munroe’s class — shows a tangible harm, which distinguishes this case from others where the harm is more difficult to prove, LoMonte said.
He said that although the case was thin in terms of its First Amendment applicability, he was concerned by the possibility raised in the dissent that Munroe’s media interviews could have led to her firing.
“If the straw that broke the camel’s back was [Munroe’s] remarks to the news media, then I’m more concerned because we certainly don’t want public employees to be gun-shy about giving candid interviews to the news media about matters of public controversy,” he said. “All in all, I don’t think she had an especially strong First Amendment case because the speech really did directly bear on the public’s ability to trust her judgment as a schoolteacher.”
LoMonte also praised the Third Circuit’s track record with First Amendment cases, like with two 2011 rulings where the court held that schools may not lightly extend their reach into students’ activities outside of school hours. And in 2001, Justice Samuel Alito, who is now on the Supreme Court, wrote the majority opinion in Saxe v. State College Area School District, which held that a broad high school anti-harassment policy prohibited too much speech and violated the First Amendment.
This case comes as courts across the country have grappled with what right schools have to police students’ off-campus online speech.
In August, a federal judge ruled that a former high school student who was suspended for a two-word sarcastic tweet can proceed with his lawsuit against the school district. In his ruling, the judge said generally, off-campus statements are protected under the First Amendment unless they are true threats or could reasonably reach the school environment and are “so egregious” that they would cause a substantial disruption at school.
But different courts have varied in their opinion on where that line is drawn. The U.S. Court of Appeals for the Fifth Circuit recently ruled in favor of a Mississippi school district in a First Amendment case where a former high school student was punished for posting online a profanity-filled rap video about two school coaches.
One justice who wrote a dissent to the ruling called for the Supreme Court to address the issue of off-campus online speech and to what extent it is protected.
Contact SPLC staff writer Tara Jeffries by email or at 202-974-6317.