On May 29, 2025, a federal judge out of the United States District Court for the Western District of Pennsylvania dismissed a Norwin School Board member’s lawsuit filed against the Norwin School District (“District”)and its former superintendent alleging First Amendment violations.
Background in the Case
On October 25, 2022, the school board member posted a satirical meme on the Norwin Area Talk Facebook page. The school board member removed the meme after receiving criticism for its insensitive and offensive content, but later wrote in another Facebook group that he stood by the humor represented in the meme.
On October 28, 2022, the District and the former Superintendent individually responded by issuing public statements condemning the school board member’s post and the language contained in the meme as offensive. Both statements clarified that the school board member’s posts did not reflect the District’s views.
In November of 2022, the District’s school board passed a motion to censure the school board member for his social media posts that contained and depicted offensive language. At this meeting, the majority of the school board voted in favor of censuring the school board member and asking him to apologize for his conduct.
As a result, the school board member brought legal action against the District and former superintendent, alleging both the District’s and former superintendent’s statements and the school board’s censure were retaliatory in nature and in violation of this First Amendment rights. The lawsuit also claimed that the statements and the censure were not only expressions of disagreement, but were intended to deter him and others from exercising constitutionally protected speech.
The Opinion
Judge W. Scott dismissed the school board member’s lawsuit for failing to state a legally viable cause of action.
Relying on the Third Circuit decision Ruttle v. Brady, the Court explained that to plead a First Amendment retaliation claim, a plaintiff must allege the following three elements (1) they engaged in constitutionally protected speech, (2) the defendant engaged in retaliatory action “sufficient to deter a person of ordinary firmness from exercising his constitutional rights,” and (3) a causal connection between the protected speech and the retaliatory action.
Under this analysis, the Court found that although the school board member engaged in constitutionally protected speech, he failed to plead facts showing that the District’s and former Superintendent’s actions were retaliatory.
Specifically, the Court held that the statements made in opposition of the school board member’s Facebook posts were not retaliatory.
Relying on the Western District’s decision in Caristo v. Blairsville-Saltsburg School District, the Court emphasized that official speech is only a retaliatory act if it is of a “particularly virulent character,” meaning that the speech must contain “a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.” The Court noted, however, that under the Third Circuit’s opinion in Conard v. Pennsylvania State Police, the “virulent character” test only applies if the case involves a matter of public concern, which, per the United States’ Supreme Court’s decision in Snyder v. Phelps, “can be fairly considered as relating to any matter of political, social, or other concern to the community… or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.”
Here, the Court noted that school board member’s post – either viewed broadly as criticism of COVID policies or narrowly as a single word hurtful to members of the community – criticized the District and were undisputedly a matter of public concern. However, the Court found that the statements did not meet the “virulent character” threshold, as the District and former superintendent were merely distancing themselves from the school board member’s post for public clarification and not punishment.
With respect to the school board’s censure, the Court relied on the United States’ Supreme Court’s decision in Houston Community College System v. Wilson, holding that a censure without real consequences such as loss of pay or loss of duties does not constitute as adverse retaliatory action for the purposes of a First Amendment claim. In Houston Community College System v. Wilson, the Supreme Court noted that elected officials are often subject to criticism and that censure resolution are a normal part of governance. Here, the Court concluded that the school board formal censure did not meet this standard outlined in Houston Community College System v. Wilson, and reinforced in Ruttle v. Brady, and thus, did not constitute as an adverse action.
While the Court dismissed the school board member’s lawsuit, it did so without prejudice, meaning he has another opportunity to amend his complaint.
Bottom Line For Schools
This decision reinforces a Districts’ ability to issue official statements distancing themselves from the personal statements of board members, as well as a school boards’ ability to censure one of its members. Thus, schools district and school boards may have the opportunity to publicly disapprove or distance themselves from a statement made by a fellow employee or school board member depending on the circumstances surrounding the statement.
However, Districts must ensure that any such statement does not contain “a threat, coercion, or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.” Additionally, any censure of a school board member must not include exclusion, expulsion, or a similar form of punishment.
