A recent lawsuit out of Ohio brings a local flare to what has otherwise become a relatively common story. We’ve all heard of teachers being disciplined or dismissed for posting something thoughtless online that led to community uproar. But did you ever think it would happen with a post about … milk?
My Twitter followers may have seen my retweet of the NSBA Legal Clips story about this case last week. The lawsuit was filed by the ACLU in Ohio, involves a former teacher, Keith Allison, who alleges he was fired by Green Local School District (GLSD) because of a message he posted on Facebook on his own time and off of school grounds. The post was made in the Summer of 2014, and urged readers to choose plant-based milk over cow’s milk. The post showed a picture of a young calf in a small crate and said:
The cruelty of separation, loneliness, and infant slaughter lingers inside each glass of cow’s milk. Your voice can help change the system. You don’t have to support this. Plant-based milks are everywhere and are delicious.
Turns out that the community GLSD serves is heavily populated with dairy farmers. Allison’s post even said “This place is five miles from my house.” Allison’s supervisor allegedly called him in after the school year began and said that teachers like himself needed to take care not to offend the agricultural community. His pay was cut, and then at the end of the year his contract was not renewed. Although he was later hired for a different position, Allison says the new position was not as good as the old, and that he feels now he must censor his speech to avoid further retaliation by GLSD.
Those who read the blog know that a public school district that disciplines or terminates an employee for off-campus, online speech has to contend with the First Amendment. Teachers and other school employees do not shed their free speech rights simply by being hired by a public school. To survive a First Amendment challenge, a school district will need to show one of the following three things:
- That the employee was speaking as a public employee, not a private citizen;
- That the employee was speaking on a matter of purely private concern, not public concern; or
- That the employer’s interest in an efficient, disruption-free workplace environment outweighs the employee’s right to speak freely on the issue.
Here, there is really no question that Allison, who was speaking on his own time and not in any manner that was compelled by his position, was speaking as a private citizen. Similarly, animal rights and the other fundamentals of veganism are matters of concern to the public, not just petty gripes or other concerns relevant only to the speaker. So this case will likely hinge on whether GLSD is able to show that its interest in an efficient, disruption-free workplace outweighs the Allison’s right to speak freely about veganism.
The unique nature of the locality, which contains a large number of dairy farmers, might weigh in the school district’s favor on that issue. But remember that typically a “heckler’s veto”—mere disagreement by the community with a speaker’s viewpoint—is not enough. If the school district can show that community members responded to Allison’s speech in a manner that disrupted the school district, though, that might help tip the scales in favor of their decision. Maybe there was some concern by community members who lived near Allison’s home that they were being singled out or threatened by that comment about the crate being “five miles” from Allison’s home? As with all of these cases, the analysis will be very fact-specific, and we will have to wait and see how the First Amendment analysis plays out. But this case is an important reminder of how local issues can come into play when dealing with online speech by teachers. If you want to find out more, you can read a copy of the complaint and an article about the case here at Cleveland.com.
Jackie Wernz is a Partner with the law firm of Franczek Radelet, P.C. and helps clients stay on top of education law matters by serving as an author of the firm’s Education Law Insights blog, and by “tweeting” for the firm on Twitter at @EdLawInsights.