From Tempel v. School Dist. of Waukesha, decided Sept. 29 by Magistrate Judge Nancy Joseph (E.D. Wis.):
Tempel was employed by the District as a dual-language first grade teacher at Heyer from fall 2018 until her termination on July 12, 2023…. In 2021, several new members were elected to the District’s Board of Education, causing what many members of the Waukesha community perceived as a more conservative perspective shift.
In July 2021, the District suspended diversity, equity, and inclusion training for staff and suspended the work of the District’s Equity Leadership Team…. In August 2021, pursuant to the Controversial Issues Polices, the Board enacted a policy to ban “controversial” signs in the classroom … [including] signage related to Black Lives Matter, Blue Lives Matter, Thin Blue Line, Anti-racist classroom, and other materials. The Policy also banned all flags, including Pride flags. The District’s decision regarding signage garnered attention from the community, parents, students, teachers, staff, and news outlets. [Further details omitted. -EV] …
Every year, Heyer first grade students participate in a spring concert…. [One of the initially planned songs,] “Rainbowland” by Miley Cyrus and Dolly Parton … [was allegedly rejected by Principal] Schneider … [in favor of] “Rainbow Connection” by Kermit the Frog …. On March 21, 2023, at 6:39 p.m., Tempel posted the following tweet on her public Twitter account:
After this initial tweet, Tempel tweeted multiple times and conducted interviews with the news media about “Rainbowland” …. Subsequent to Tempel’s tweets, the District asserts that it received numerous voicemails and emails containing “vulgar and threatening remarks” … [including]:
1.”Hey, I heard your school district doesn’t like gay people. Fuck you, you fucking retards! Kill yourselves!”
2.”Religious based cultural ignorance-how stupid this is. You are small mindless assholes. Consider changing this or face the consequences,”
- “You are a fucking cunt for working for that pig. Rot in hell!”
[More details omitted. -EV]
The court concluded that Tempel could permissibly be fired under the so-called Pickering balancing test, which allows public employers to fire their employees when the employees’ speech sufficiently undermines workplace efficiency:
Under Pickering, the employer bears the burden of showing that its interest in workplace efficiency outweighs the employee’s right to speak….
As to potential security risks and disruption, the record indicates that soon after Tempel tweeted, both Heyer’s office and the District’s main office received upwards to twenty calls per day regarding the “Rainbowland” decision, many of which consisted of the caller subjecting the recipient to yelling and insults. During spring break, Schneider received multiple emails from staff and parents expressing concern about school safety. Thus, on the weekend prior to Heyer’s return from spring break, Schneider emailed all Heyer staff to reassure them that safety and security is their main priority and informing them that police would be outside the building during arrival and dismissal and as needed throughout the day. And indeed, following spring break, police officers were stationed at both Heyer and the District’s office for several days.
Chaparro testified that Heyer typically receives approximately 40 calls per day. However, in the wake of Tempel’s tweets, she received an additional 15 to 20 calls. And these additional calls were not easy calls to take—people were calling to “voice their opinions” at her and did so in an abusive manner. Ettinger testified similarly, stating she was called “every name in the book” such as a “homophobe” during her daily 25 to 30 “Rainbowland” related calls. Further, even if the police officers were stationed outside of the school “out of an abundance of caution,” that does not make their presence any less disconcerting to the staff and students.
As to disharmony amongst Heyer staff, Schneider testified that upon return to school after spring break, he observed an increased level of discord between his staff members that was “significantly different” from anything the school had experienced before. He testified to receiving one to two staff complaints per day regarding a colleague’s behavior, prompting him to organize a “student services meeting” to address the “significant amount of concern among staff.” Schneider further testified observing distractions and “strong feelings” amongst staff that impacted their preparation time for class.
Tempel argues that her speech did not cause disharmony amongst Heyer’s staff and to the extent there was disharmony, it pre-dated her tweets. While Schneider acknowledged that his staff has not always gotten along perfectly in the past, he testified that Heyer had never before experienced the level of staff discord he observed in the wake of Tempel’s tweets. Again, the discord was so significant that Schneider testified he organized a “student services meeting” that, for the first time, was held to allow staff to voice their concerns and feelings as staff members as opposed to what the meetings were usually held for—to address student needs.
The record contains multiple emails from staff members sent to Schneider and Sebert during spring break expressing concern for school safety and the negative attention Tempel’s tweets could bring to the school. Thus, even if any single staff member did not express concerns, the record supports the existence of discord and distraction amongst staff members in the wake of Tempel’s tweets.
Thus, while Tempel contests the severity of the disruption, the Seventh Circuit has found that school officers can act “to nip reasonable predictions of looming disruption in the bud,” so long as those predictions are reasonable. And in this case, given the evidence of staff discord, it was not unreasonable for the District to act before the disruption potentially worsened.
Additionally, Tempel’s method of speech further weighs in favor of the District. While speech made outside of the workplace may be less disruptive to the efficient functioning of the employer, as the Seventh Circuit noted, speech made on social media can carry a “clear risk of amplification” and therefore disruption.
While Tempel tweeted from a personal account outside of school hours and off school grounds, she identified herself as a first grade teacher and named her school and her District in the course of her tweets…. [W]hen a member of the public asked, “are you a teacher in Waukesha” and “what school was supposed to sing [Rainbowland]?,” Temple responded by stating “Heyer Elementary.” When asked how many students were in her class, Tempel responded “24,” but that the school had about 65 first graders in total.
This predictably attracted widespread attention and criticism of the school. And her identification as a teacher at that school only increased the statements’ attention. It is undisputed that Tempel’s tweet garnered national media coverage, with Tempel participating in interviews with both local and national media discussing the “Rainbowland” decision. The court has “repeatedly recognized that public school teachers occupy a unique position of trust”; thus, employers have “more leeway in restricting the speech of a public-facing employee like a classroom teacher who must maintain public trust and respect to be effective.” …
The undisputed facts show that Tempel’s tweets resulted in substantial disruption to the school and District. Thus, weighing the factors relevant to Pickering balancing, I find that the District’s interest in workplace efficiency outweighs Tempel’s First Amendment interest in expression.
Another reminder, I think, of how the government as employer has, rightly or wrongly, a great deal of power to punish employees for their speech. Generally speaking, the government can’t prosecute or civilly fine a citizen because their speech causes public upset—either upset directed at the speaker, or upset directed at the people the speaker is criticizing. But cases such as this (applying the Supreme Court’s Pickering precedent) show that, if enough people are upset by a government employee’s speech to the point that they complain enough to the employer to be “disruptive,” the employee can indeed be fired.
Christina A. Katt, Hunter Michael Cone, and Joel S. Aziere (Buelow Vetter Buikema Olson & Vliet LLC) represent defendant.
