Court Considers Claim of Montgomery County (Md.) Teachers Transferred for Pro-Palestinian Speech Following Oct. 7, 2023
From Judge Lydia Kay Griggsby (D. Md.) yesterday in El-Haggan v. Bd. of Ed.:
Plaintiffs are public school teachers employed by the [Montgomery County (Md.) Public Schools]. Following the events of October 7, 2023, the Plaintiffs individually expressed their opposition to Israel’s response to the terrorist attacks and to the subsequent war in Gaza.
This led to their being transferred to other schools (and, as to two of them, being placed on paid administrative leave). They sued, claiming that, among other things, this constituted unconstitutional retaliation for the exercise of their First Amendment rights. The Court has held that such retaliation violates the First Amendment if
- the speech is on a matter of public concern, Connick v. Myers (1983), and
- the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos (2006), and
- the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968)—in practice, this means that employees can be punished for their speech if coworkers or members of the public express enough hostility to the speech, but are generally protected if there isn’t much such hostility.
The court rejected Plaintiff El-Haggan’s claim to the extent it was “based upon [her] wearing of pro-Palestinian pins, buttons and clothing in the classroom”:
Plaintiff El-Haggan was not speaking as a private citizen when she wore pro-Palestinian pins, buttons and other clothing in her classroom. The amended complaint makes clear that Plaintiff El-Haggan engaged in this speech within her classroom, by wearing homemade pins, buttons and outfits containing the slogan, “Free Palestine.” The amended complaint also shows that Plaintiff El-Haggan engaged in this speech by distributing “Free Palestine” buttons to other teachers at her school. Given these facts, the Court agrees with the Defendants that Plaintiff El-Haggan’s speech was curricular in nature, because, her students and their parents were likely to regard such speech in the classroom as approved and supported by the school.
Notably, the amended complaint makes clear that Plaintiff El-Haggan’s speech, while unrelated to mathematics, was, nonetheless, designed to impart knowledge to the students about the war in Gaz
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