In Rachel L. Carr v. PennDOT and Pa. State Civil Commission, the Pennsylvania Supreme Court recently overturned a Commonwealth Court’s decision that held a probationary PennDOT employee’s First Amendment rights to free speech were violated when PennDOT fired her for a post on Facebook about school bus drivers.
In cases surrounding the termination or discipline of a public employee for their speech-related conduct, the United States Supreme Court has provided a two-part analysis to determine if the employee’s speech is constitutionally protected.
The first part asks whether the speech involves a matter of public concern. Speech is of public concern if its content or context address a matter of political, social, or other area of interest to the community. The second part asks whether the speech has a potential to adversely affect the government employer’s operation, requiring a balancing test of the employee’s free speech with the employer’s interest in preventing impaired performance, morale, and workplace relationships.
To demonstrate that an employee’s speech impairs an employee’s operation in this manner, employers do not need to prove the employee’s speech actually caused this harm, but only that an adverse effect could be reasonably anticipated.
In resolving the second part, the PA Supreme Court identified a list of factors to consider: 1) whether, because of the speech, the government agency is prevented form efficiently carrying out it responsibilities, 2) Whether the speech impairs the employee’s ability to carry out his own responsibilities, 3) Whether the speech interferes with essential and close working relationships, and 4) The manner, time and place in which the speech occurs.
Rachel Carr was employed as a seasonal/non-permanent employee at the Department of Transportation as “Clerk 1” In March 2016, she was promoted to “Technician 1”, in which she was on a 180-day probationary period upon her promotion.
While off-duty in May 2016, Carr posted a Facebook rant and several responses through her personal account about her frustration about local school bus drivers she encountered on the road, in which she stated she would “gladly smash into a school bus.” These messages and complaints were forwarded to her employer’s Facebook page, asking the Department of Transportation to take responsive action. These complaints were forwarded to the human resource office, and a pre-disciplinary conference was scheduled.
Carr was placed on suspension and subsequently terminated due to this “inappropriate” behavior. Carr filed suit and alleged her employer violated Section 905.1 of the Civil Service Act by terminating her employment for the exercise of her right to free speech.
The decision to terminate Carr was upheld by the State Civil Service Commission, but the Commonwealth Court reversed. On May 19, 2020, Pennsylvania’s Supreme Court overturned the Commonwealth decision, holding that PennDOT properly terminated Carr because her speech had the potential to adversely affect the Department of Transportation’s mission and operations. The court noted that Carr’s messages in a Facebook group whose member were not primarily residents of the area where she lived lessened the public importance of her remarks. Carr’s Facebook profile acknowledged her employment at PennDOT, and the court held that her statements showing a clear disregard for children’s safety and voluntarily smashing into a school bus undermined PennDOT’s mission of providing safe public roadways.
PennDOT’s interests in the safety of the public outweighs Carr’s interests in commenting on safety of a particular bus driver. The court reckoned, even if Carr never had any intentions to drive her vehicle into a school bus, he words alone could erode the public’s trust in PennDOT’s mission.
Bottom Line for Schools
In determining whether the First Amendment rights of a government employee were violated as a result of discipline to their speech-related conduct, a court will consider the public importance of the speech, the nature of the injury to the agency, and factors that may mitigate or aggravate the injury to the agency.
As a practice pointer for administrators and school boards, it is significant to note the significant difference in standards applied to employees and students in the context of freedom of speech and retaliation from schools and administrations. A recent Third Circuit case, B.L. v Mahanoy Area Sch Dist, recognized that schools have substantially limited authority to discipline students for their social media posts outside of the school context. Carr v. PennDOT demonstrates that employees may not enjoy the same standard as students would regarding off-campus social media posts, especially if it hinders the schools’ mission and operations of fostering a safe and effective learning environment.
It is clear that as the First Amendment interest and public importance in the speech rises, so does the difficulty of justifying an employer’s decision to react and discipline an employee’s speech. While an individual must accept certain limitation on their freedoms when entering into public and governmental service, public/state employers must still be able to prove that the speech-related conduct they are looking to regular is of public interest and will likely have a negative result.
If you have a question, please contact your legal counsel or one of the Education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.
