Suspended teacher deprived of rights?
First Amendment scholars weigh in on instructor who attended ‘Stop the Steal’ rally
Raub Middle School teacher Jason Moorehead’s social media posts from the Jan. 6 rally for former President Donald Trump in Washington, D.C., began circulating in Allentown on the afternoon when the world watched in horror as protesters stormed the U.S. Capitol.
The reaction fell on both sides, some saying it was his First Amendment right to attend a rally, others saying being a teacher usurped that right. The uproar was enough for Allentown School District to suspend him with pay while it investigated his involvement in the day’s events.
“Being a teacher means he is a role model and because of his profession, his personal life is public,” wrote one Facebook user. “We as a community cannot accept nor tolerate this negative behavior.”
“What is he doing wrong?” another asked. “He took a few photos showing he was there. Thousands of people are there, and only a few are doing the rioting and destruction. Not everyone there is a rioter.”
Moorehead says he was never closer than a mile away from the Capitol building that day and didn’t realize the violence that occurred until after he had left.
Moorehead says he’s a victim of cancel culture and that his reputation has been destroyed by what he says is a false statement that he was involved in the violent protest. He maintains his trip to Washington to hear the former president speak was nothing more and denied involvement in the siege.
His attorney said in a Jan. 23 telephone interview, Moorehead’s participation in the Trump rally challenging the
presidential election results that preceded the attempted insurrection is protected by the First Amendment.
“The First Amendment allows people to personally and privately engage in disagreements with their government,” said Francis Malofiy.
The freedoms ensconced in the First Amendment are among the most celebrated in the U.S. Constitution. It gives people in the United States the right to speak their minds, worship, gather and support the political candidates of their choice without fear of being silenced or punished by the government.
But those freedoms are not absolute, and over the years, the U.S. Supreme Court has established that government bodies such as school districts may fire employees for what they say if it gets in the way of the agency’s mission.
“The Supreme Court is really looking at not just what the speech is, but the impact. Does it make it more difficult for the school district to operate?” said Hobie Webster, a Pittsburgh employment lawyer who represents school districts.
Perry Zirkel, a retired Lehigh University professor and expert in education law, said a school district would be unable to justify terminating a teacher on the basis of endorsing a political candidate, even one as controversial as Trump, who is facing impeachment for a second time for inciting his followers to storm the Capitol.
“That to me is too close to what the First Amendment is about in terms of protecting the democracy by protecting political speech,” Zirkel said. “If it turns out that while he was down there he was one of these guys running around without a shirt on putting his feet up on people’s desks, we would have a very different case.”
Moorehead, a social studies teacher at Raub for 17 years, posted pictures of himself at Trump’s “Stop the Steal” rally blocks from the White House grounds.
In one, he stood before a sea of Trump banners wearing a “Make America Great Again” hat and carrying a Revolutionary War flag. “Doing my civic duty,” he commented. In another, he stood in front of a hot dog cart waiting for lunch “during (what CNN will hopefully call) a ‘mostly peaceful protest’ while at the Capital.”
Later, he reposted someone else’s tweet saying “Don’t worry everyone, the capitol is insured,” adding “This,” to show his approval. The single word “This,” has become shorthand for expressing agreement with a quoted statement in many internet forums.
Asked what he was trying to convey with the posts, Moorehead said during a CNN interview on Jan. 23 that he was not mocking Black Lives Matter or antifa.
“I was trying to highlight what I believe is the double standard that often exists in the media when they’re looking at two different events from two different political groups,” he said.
That the initial statement from Allentown Superintendent Thomas Parker placed the “staff member” directly “at the United States Capitol Building,” and that the district has not corrected this association, amounts to grounds for a defamation lawsuit, Malofiy argued.
District spokeswoman Melissa Reese referred questions to district solicitor John Freund III, who said the district is still conducting a full investigation of the teacher’s involvement and is unable to comment on details of the investigation, in the interest of “proceeding in a professional and proper manner with all regards for the teacher’s rights.”
The district “will not make any premature statements about any conclusions reached until the investigation is complete, and cannot allow the media attention available to the teacher to usurp the district’s process,” he said via email.
Not naming Moorehead explicitly, Freund said the teacher’s temporary reassignment is being treated the same as any other teacher whose conduct has been called into question. Until the district completes the investigation and makes a decision on his status, the teacher is still receiving pay and benefits.
Participation in the demonstrations on Jan. 6 has brought professional consequences for some, mostly limited to those who stormed the Capitol building. The FBI has arrested more than 100 associated with the siege so far, and many companies have taken to Twitter to confirm the firing of their involved employees.
In a few cases, protesters have lost jobs even if they did not take part in the violent rioting.
A Chicago real estate firm fired one of its agents after she posted a selfie to social media and made reference to “storming the capitol,” but the agent, Libby Andrews, told the Chicago Tribune that she had been unaware anything illegal was happening and never entered the building.
Former Pennsylvania state representative Rick Saccone also referenced “storming the capitol” in a social media post that day, but told the Tribune-Review he didn’t mean it literally and only went to Washington to peacefully protest and express grievances “about the way the election was handled.” He resigned from his position at Saint Vincent College that week, saying he “didn’t want all this terrible media kerfuffle to tarnish the school.”
While the First Amendment does not protect private-sector employees from being fired for what they say, government workers have legal recourse if they believe they have been wrongly terminated, Zirkel said.
Over the past half-century, the Supreme Court has issued four major decisions defining the limits of public employee’s First Amendment rights.
In 1964, Illinois school teacher Marvin Pickering wrote a letter to his local newspaper critical of the administration’s spending on instruction and athletics. The school board fired Pickering, saying that his letter was rife with inaccuracies and its publication was detrimental to the school district. He appealed under the First and 14th Amendments and was reinstated when the Supreme Court ruled the inaccuracies in the letter were not malicious and did not interfere with the district’s operations.
In 1977, the court ruled that the First and 14th Amendments do not provide blanket protection in the case of a teacher who had argued with co-workers and cursed at students. The court said public employees may be fired for speech that is not public in nature.
The court further narrowed protection in 1983 in the case of a New Orleans assistant district attorney who circulated a questionnaire to co-workers asking their opinions on transfers, morale and supervisors in the office. The court ruled that the questionnaire disrupted the office and dealt with office politics and not matters of public concern.
A 2006 ruling in another case involving a prosecutor established that public employees are not protected when they speak in their official capacities.
Thus, Zirkel said, courts use a three-part test to determine if a public employee is protected by the First Amendment: Was the expression part of the employee’s duties, or was it as a private citizen? Was the employee speaking about an issue of public concern? And did the speech affect the operation of the government agency?
Last year, the Pennsylvania Supreme Court added the question of whether an employee’s speech impairs the ability of an agency to perform its duties by damaging the public’s trust.
Rachel Carr was fired from her job as a driver for PennDOT after she posted in a local Facebook group about her frustration with school bus drivers in the area after one pulled out in front of her truck. “I don’t give a flying shit about those babies and I will gladly smash into a school bus,” Carr wrote.
Carr argued that she had posted her rant as a private citizen, not as a PennDOT employee and that the safety of school bus drivers was a matter of public concern. The court said that the importance of an employee’s statements on an issue of public importance must be balanced against any harm they cause the agency. Because Carr’s rant was of limited public importance but harmed the public’s trust in PennDOT’s ability to safely serve the public, her speech was not protected, the court ruled.
Careless words have cost at least one teacher her job locally.
A Bucks County teacher who called her students “utterly loathsome” and “frightfully dim” in her online blog lost her appeal to the First Amendment after her district fired her.
In 2015, a federal appeals court ruled that former Central Bucks High School East teacher Natalie Monroe’s comments caused enough of a disruption in the classroom and her ability to perform her job — because numerous parents told the district they didn’t want her to teach their children — that it outweighed her First Amendment claim.
Venturing into highly polarized politics of racial justice also cost a middle school teacher in Georgia her job after she wrote a racist social media post about a Black Lives Matter demonstration during a local Halloween parade. The Georgia appeals court reasoned that her “post interfered with the operation of the middle school where she taught.”
Allen town’s school board policy on freedom of speech outside of school echoes the precedent laid out in the courts, balancing those First Amendment freedoms with “the interests of this district.” School board President Nancy Wilt said the board would not comment on personnel matters as it waits for the investigation to conclude.
Teachers’ union President Mark Leibold did not respond to multiple messages seeking comment. Spokesman Chris Lilienthal of the Pennsylvania State Education Association, of which the Allentown Education Association is a member, declined to comment.
The district’s determination will come down to the delicate balance between an employee’s First Amendment rights and the school’s judgment about what it considers acceptable behavior. Friday morning, Freund said the investigation is not yet complete.
“The district is mindful that teachers do not lose their [constitutional] rights because they are teachers,” wrote Freund, the solicitor. “It is also mindful that as teachers, they must exercise discretion in how they exercise those rights so as to preserve their credibility as educators of young people.”