During its October 2023 term, which ends Oct. 6, 2024, the United States Supreme Court issued decisions relating to the social media activity of board of education members and the degree of harm that employees must plead and prove in certain personnel matters. It is imperative for all board of education members and boards of education to understand the specific facts and circumstances involved in these matters and, in consultation with board counsel, to decide the extent to which these cases will affect their conduct and decision-making moving forward.
State Action and Social Media Following oral argument on Oct. 31, 2023, the court issued two decisions on March 15, 2024, concerning separate, but related, matters regarding the issue of “state action” and social media accounts.
Lindke v. Freed Prior to 2008, and while he was a college student, James Freed created a private Facebook account. When Freed approached Facebook’s 5,000 “friends” limit, he converted his profile to a public page, thus allowing anyone to see and comment on his posts. Freed chose “public figure” for his page’s category, and “James Freed” for its title. In 2014, Freed was appointed to the position of city manager for Port Huron, Michigan and, thereafter, updated his Facebook page to reflect his appointment; chose a photo of himself in a suit with a city lapel pin as his profile picture; and in the “about” section, added his title, a link to the city’s website and the city’s general email address. Both before and after his appointment to the position of city manager, Freed operated his Facebook page himself; “posted prolifically (and primarily) about his personal life,” including about his child; posted pictures of his dog; and, importantly, posted information related to his job. On occasion, Freed even solicited feedback from the public about activities related to his employment. When Freed’s readers commented on his social media posts, he “often” replied to the comments and answered questions from residents.
During and after the COVID-19 pandemic, Freed continued to post on social media about both his family, and his job. Kevin Lindke, dissatisfied with how the city was navigating the pandemic, visited Freed’s Facebook page and regularly shared his discontent. After Freed posted a photograph of himself and the mayor picking up food from a local restaurant, Lindke commented, “while ‘residents were suffering,’ the city’s leaders were eating at an expensive restaurant ‘instead of out talking to the community.’” Although Freed initially deleted Lindke’s comment, he eventually blocked him from his public Facebook page.
Lindke filed a lawsuit against Freed pursuant to 42 U.S.C. §1983 (Section 1983). A Section 1983 claim can be asserted against any “person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives another of a federal constitutional or statutory right. In order to be viable, the act must be attributable to the state, and not to a private person.
The District Court ruled in favor of Freed’s motion for summary judgment and, on appeal, the Sixth Circuit affirmed. Focusing on whether Freed was acting in his private or official capacity when posting on his social media account, the Sixth Circuit “held that an official’s activity is state action if the ‘text of state law requires an officeholder to maintain a social-media account,’ the official ‘use[s] . . . state resources’ or ‘government staff’ to run the account, or the ‘accoun[t] belong[s] to an office, rather than an individual officeholder.’” Applying this framework, the Sixth Circuit found that Freed’s activity was not “fairly attributable” to the state.
Because the Sixth Circuit’s “approach to state action in the social media context” differed from that applied in the Second and Ninth Circuits, the court granted certiorari in this case and in a companion case from the Ninth Circuit, O’Connor-Ratcliff et al. v. Garnier et ux.
Emphasizing “substance, not labels,” the court held that a public official’s social-media activity constitutes state action pursuant to Section 1983 only if the public official (1) “possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” Although “appearance and function” are important, they are only relevant in the second prong of the analysis, and “cannot make up for lack of State authority” in the first prong.
The actual authority necessary to establish the first prong can emanate from “statute, ordinance, regulation, custom, or usage,” with the former three (statute, ordinance, or regulation) referring “to written law through which a State can authorize an official to speak on its behalf.” On the other hand, “custom” and “usage” include “‘persistent practices of state officials that are ‘so permanently and well settled’ that they carry ‘the force of law.’” For example, if “prior city managers … purported to speak on [the city’s] behalf and [were] recognized to have that authority for so long,” then the city manager’s power has become “permanent and well settled.”
In his lawsuit, Lindke argued that because Freed’s Facebook page “looked” and “functioned” like “an outlet for city updates and citizen concerns,” his social media activity was state action. However, the court stated that unless Freed was “‘possessed of state authority’ to post city updates and register citizen concerns,” his conduct could not be attributable to the state. Furthermore, and in order to be actionable, “[t]he alleged censorship must be connected to speech on a matter within Freed’s bailiwick” or, stated differently, must be part of the job that he was entrusted to perform. To illustrate this point, the court noted that if Freed posted about health code violations in local restaurants and then deleted certain negative comments, but oversight of public health was “not within the portfolio of the city manager,” then neither the post nor the deletions would be attributable to Freed’s state authority because none existed.
Turning to the second prong, not only must a state official have state authority, but they must also purport to exercise that authority. In this way, “[I]f the public employee does not use his speech in furtherance of his official responsibilities, [then] he is speaking in his own voice.” In this part of the analysis, the court emphasized that context is important. According to the court, if Freed’s Facebook account had a label denoting its personal status, or had a disclaimer, “he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Because Freed’s account was neither designated as personal nor official, and instead was a “mixed use” or “ambiguous page,” the court reasoned that “content and function are the most important considerations” in the analysis of each post.
In the end, the court did not resolve the merits of the claim, and instead remanded the matter, so that the facts and circumstances could be analyzed consistent with the two-pronged test identified by the court as that to be applied when analyzing whether social media activity by a public official constitutes state action.
Before concluding its opinion, the court included “one last point” worthy of reiteration. For those public officials who maintain “mixed-use” social media accounts, namely those where both personal and official posts are made, a public official “exposes himself to greater potential liability” if he “blocks” someone from the page and, therefore, precludes them from making comments about an official post. As a result, keeping “personal posts in a clearly designated personal account,” or separate and apart from official posts, helps to alleviate any “greater” liability.
O’Connor-Ratcliff et al. v. Garnier et ux. Michelle O’Connor-Ratcliff and T.J. Zane (the trustees) created public Facebook pages to promote their campaigns for election to the Poway Unified School District Board of Trustees in San Diego, California. Although both trustees separately maintained personal Facebook pages, they used their public pages “for campaigning and issues” related to the school district. Following a successful bid for election, the trustees continued to use their public Facebook pages to post district-related content including, without limitation, “board meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates.” In addition, the trustees used their public Facebook pages to solicit feedback from, and to communicate with, district constituents. Both Facebook pages described the trustees as “Government Official[s].”
Christopher and Kimberly Garnier (the Garniers), parents of students in the district, “often criticized” the board, and posted “lengthy and repetitive comments” on the trustees’ social media accounts. After the trustees initially deleted the Garniers’ comments, and then blocked them from their respective pages, the Garniers sued the trustees under Section 1983 and sought damages as well as declaratory and injunctive relief for the violation of their First Amendment rights.
The District Court denied the trustees’ motion for summary judgment, and allowed the matter to proceed on the merits, reasoning that the trustees had acted “under color of” state law when they blocked the Garniers from their social media pages.
On appeal, and finding that “there was a ‘close nexus between the Trustees’ use of their social media pages and their official positions,” the Ninth Circuit held that Section 1983’s state-action requirement was satisfied. Prior to this matter, Ninth Circuit precedent indicated that “an off-duty state employee acts under color of law if she (1) ‘purports to or pretends to act under color of law’; (2) her ‘pretense of acting in the performance of [her] duties had the purpose and effect of influencing the behavior of others’; and (3) the ‘harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental status or to the performance of [her] duties.’” Based largely on the “appearance and content” of the trustees’ social media pages, and applying its own precedent, the Ninth Circuit found that the trustees had engaged in state action.
As noted above, the court granted certiorari in this case and in a Sixth Circuit case, Lindke v. Freed, to “resolve a Circuit split about how to identify state action in the context of public officials using social media.” In the end, and because the Ninth Circuit in this case, like the Sixth Circuit in Lindke v. Freed, did not apply the appropriate two-pronged test, the court vacated the judgment below, and remanded for further proceedings consistent with the decision.
Brief Conclusion Although neither the Sixth nor the Ninth Circuit have issued new decisions following the court’s promulgation of the proper two prong test to be applied, boards of education should proactively consult with their board attorneys on how to draft or amend existing policies or regulations concerning social media usage by board of education members, with an emphasis on the authority and/or power of any individual board member to speak on behalf of the board of education or in any kind of official capacity.
Involuntary Transfers On April 17, 2024, the court issued a labor and employment decision clarifying the level or degree of harm that an employee must plead and prove to establish that an involuntary transfer was discriminatory, and violative of Title VII of the Civil Rights Act of 1964 (Title VII). Title VII makes it unlawful for an employer to otherwise “ … discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” Although the employee in Muldrow v. City of St. Louis was not a teaching staff member, there are significant implications for all employers, including boards of education, when considering whether to initiate an involuntary transfer.
The relevant facts from Muldrow v. City of St. Louis are as follows. From 2008 through 2017, Sgt. Jatonya Clayborn Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. In this position, she was responsible for, among other things: investigating public corruption and human trafficking cases; overseeing the Gang Unit; and serving as head of the Gun Crimes Unit. Because of her position, she was also deputized as a task force officer with the Federal Bureau of Investigation, and this allowed her to have “an unmarked take-home vehicle.”
In 2017, the new Intelligence division commander (who referred to Muldrow as “Mrs.” rather than the customary “Sergeant”) asked to transfer her, so he could replace her with a male police officer who was a “better fit” for the “very dangerous work.” Over Muldrow’s objection, the department approved the request and reassigned Muldrow to a uniformed job elsewhere in the department. While Muldrow’s rank and pay remained the same, her responsibilities, perks and schedule did not. For example, after the transfer, Muldrow no longer worked with high-ranking officials on department priorities, and instead supervised the day-to-day activities of neighborhood patrol officers; because she no longer served in the Intelligence Division, she lost her FBI status, and the take-home car that came with it; and instead of a traditional Monday through Friday workweek, she was placed on a rotating schedule that often involved weekend shifts.
Muldrow filed a Title VII suit challenging the transfer, and asserted that her employer, in ousting her from the Intelligence Division, discriminated against her based on her sex with respect to the terms and conditions of her employment. In connection with the litigation, Muldrow described the transfer as being transferred from a “premier” position into a less “prestigious and more administrative” uniformed role.
Following the filing of her complaint, the District Court, relying on Eighth Circuit precedent, granted the employer’s motion for summary judgment, finding that Muldrow “needed to show that her transfer effected a ‘significant’ change in working conditions producing ‘material employment disadvantage.’” Because Muldrow did not suffer a change in salary or rank, and the other alterations to her work responsibilities were not “significant,” the District Court reasoned that she could not satisfy the “heightened injury standard.”
On appeal, the Court of Appeals for the Eighth Circuit affirmed, and agreed that Muldrow had to, but could not, show that her involuntary transfer caused a “materially significant disadvantage.” In so ruling, the Eighth Circuit emphasized that the involuntary transfer “did not result in a diminution to her title, salary, or benefits,” and instead only resulted in “minor changes” to her working conditions.
The court granted certiorari “to resolve a circuit split on whether an employee challenging a transfer pursuant to Title VII must meet a heightened threshold of harm – be it dubbed significant, serious, or something similar.” In order to establish a Title VII discrimination claim for an involuntary transfer, the court held an employee must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant or satisfy a significance test. Per the court, Muldrow only needs to show that the involuntary transfer “left her worse off, but need not have left her significantly so.” Therefore, the court remanded the matter for further proceedings.
With the above in mind, Muldrow v. City of St. Louis arguably makes it “easier” for employees, including teaching staff members, to prove a Title VII discrimination claim following an involuntary transfer. Even if a teaching staff member’s title, salary and benefits are not impacted by an involuntary transfer, if they can plead and prove that they suffered any harm with respect to an identifiable term or condition of employment, a discrimination claim may be meritorious. What will constitute “any harm” will be developed through case law, but query whether, based on the facts at issue in Muldrow, the following would be enough: a longer commute (to a different school building in the district); longer or different working hours; an earlier start or later end to the school day; a different population of students; a smaller classroom; a large class size (number of students); less in-class support; fewer or shorter prep periods; and/or longer intervals of instruction.
When considering the involuntary transfer of a teaching staff member, district administrators and boards of education are encouraged to speak with their board attorney to ensure, based on Muldrow v. City of St. Louis, that the full extent of any potential “harms” to the employee are considered and analyzed. Vigilance and thoroughness with decision-making will help to deter the filing of litigation and if there is litigation, to defend against it to the fullest extent possible.
Kathryn A. Whalen is legal counsel/HR at NJSBA.
