15-Yard Penalty, Automatic Termination for Speaking Out: High School Football Coach Fired for Criticizing School Curriculum
Photo Source: Daniel X. O'Neil, Football Field, Flickr (Apr. 21, 2011) (CC BY 2.0).
By: Nicolas Burnosky* Posted: 04/07/2021
It is fundamental that no person may be deprived of “life, liberty, or property, without due process of law.” Retaliation against government employees for exercising constitutional rights constitutes a textbook example of a due process violation. The First Circuit laid out a three-part test to determine whether the First Amendment protects government employees’ speech. Courts will find that adverse governmental employment action violated employee’s free speech rights if:
(1) [H]e spoke as a citizen on a matter of public concern, (2) . . . his interest in commenting on these matters outweighed the defendant’s interest in the efficient performance of its public service, and (3) . . . the protected expression was a substantial or motivating factor in the adverse employment action.
Speech touches on matters of public concern “when it 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.’”
Alleged Free Speech Retaliation Against High School Coach
In late January, David Flynn, a special education teacher at Braintree High School in Massachusetts, was fired from his position as head coach for Dedham High School’s football team because of his “significant, repeatedly expressed, philosophical differences with the direction, goals, and values of the school district.” Flynn contacted Dedham administrators regarding concerns he had with his daughter’s geography and ancient history class, which Flynn alleged was being taught subjectively, without a syllabus, and with no connection to Massachusetts standards for history classes. Specifically, Flynn alleged the course covered “issues of race, gender, stereotypes, prejudices, discrimination, and politics” and that his daughter’s teacher expressed support for Black Lives Matter during class. Flynn sent an email to, and met with, the superintendent expressing his concerns and, not feeling the superintendent properly addressed those concerns, sent a disapproving email to three Dedham School Committee members and forwarded it to twenty concerned parents. Flynn then removed his two children from Dedham shortly afterwards.
However, this was not the end of the story; while Flynn still believed the football season would have been starting February 2021, he met with the superintendent, principal, and athletic director and acknowledged he had forwarded the disapproving email to other parents. Before Flynn arrived home, the school had issued a letter explaining it was not keeping Flynn on board as head coach. Consequently, Coach Flynn filed suit in federal court alleging Massachusetts acted “under color of Massachusetts law” and “deprived Plaintiff of his rights under the First Amendment.” Flynn advanced a retaliation claim, alleging there was no other reason suggested or intimated that justified the school’s decision to fire him except for speaking on a matter of public concern. No further action has taken place in court, but it appears, under applicable law, Flynn’s claim will succeed.
Matter of Public Concern
The district court will likely find Coach Flynn’s speech touches on a matter of public concern. Flynn’s speech is similar to that of any other parent of a Dedham Public Schools student. Flynn is not only head coach for the high school football team, but he is also the father of two children enrolled and attending Dedham Schools at the time of his initial communications with the superintendent. Furthermore, Flynn’s concerns were shared by other concerned Dedham Public School parents. Indeed, Flynn’s emails and meeting with the superintendent appear to be “only tangentially and insubstantially involved in the subject matter of the public communication.” Nothing in the record suggests Flynn would not have been concerned with or discovered discrepancies between educational standards and the geography and history course’s actual content had he not been head coach of the football team. Furthermore, even if the superintendent’s meeting was only by virtue of Flynn’s employment and information acquired as a result of that employment, “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties.” Therefore, the court will likely find that Flynn’s speech touched on a matter of public concern.
The court will then balance Flynn’s interests and value of his speech against government’s interests in efficiency. On the one hand, the school would most likely assert both the “philosophical differences” stated in the public letter as well as concerns that having the head football coach speak out against the superintendent and administration would disrupt school affairs. However, it is not clear how Flynn’s private communications with the superintendent and even the forwarding of the email to twenty parents sharing similar concerns disrupts the school environment. Rather, the only reasons provided to Flynn and to the public in the superintendent’s statement pertained to philosophical differences and not to any disruptive effect Flynn’s emails and communications to the superintendent had on the school community. However, in cases where courts found the asserted governmental interests outweighed the employee-speech’s value, the facts were entirely inapposite to those here.
On the other hand, Flynn asserted strong interests as a parent concerned with “the instruction his daughter was receiving.” Many scholars suggest curriculum is an immensely important foundation for building strong future citizens and ensuring social justice. Importantly, in Pickering v. Board of Education, the Supreme Court upheld a teacher’s criticism of the school board’s allocation of funds and rejected contrary arguments that the criticism damaged personal loyalties between coworkers and undermined discipline of subordinates. Accordingly, Pickering held, as the court will likely hold here, that the administration’s interest in limiting employees’ contributions to “public debate is not significantly greater than its interest in limiting a similar contribution by an member of the general public.”
Flynn’s Petition and Speech Was a Substantial or Contributing Factor of His Termination
The court must then determine whether Flynn’s exercise of his constitutional rights was a “substantial or contributing factor” of his termination. Flynn’s reputation at Dedham High School, the turning around of the school’s football team, and his long and successful career as football coach in many other schools tends to suggest Flynn was a valued and respected member of the school community. Further, Flynn alleges he knows of no other reason than his meeting with and email about the superintendent that contributed to his termination, and the superintendent has not provided reasons aside from a disagreement over values. In fact, Flynn believed as early as five days before his termination that there were no reasons to be concerned about his employment status when the athletic director provided him with a copy of the upcoming season’s schedule. Additionally, the fact that the superintendent presented Flynn with a copy of his email during their meeting and sent a letter to the school community following the meeting also supports the claim that, but for Flynn’s email expressing disapproval with the curriculum, the superintendent would not have fired him. Unlike in other cases, there was no pretext suggested when the school specifically cited “philosophical differences” as the reason for Flynn’s termination. Therefore, because the court would likely find Flynn’s exercising of his First Amendment rights by sending the email was a “substantial or motivating factor” of his termination, Flynn will likely prevail in this lawsuit.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.
 U.S. Const. amend. XIV, § 1, cl. 2 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law.”).
 See Rankin v. McPherson, 483 U.S. 378, 383 (1987) (“It is clearly established that a State may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972))); Connick v. Myers, 461 U.S. 138, 142 (1983) (holding state may not condition employment in manner infringing employee’s free speech rights); Perry, 408 U.S. at 597 (holding employees may not be denied employment for exercising free speech rights, but are not entirely to all “valuable governmental benefit[s]”); Pickering v. Bd. of Educ., 391 U.S. 563, 574 (1968) (“[A]bsent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”).
 See Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011) (laying out three-part test to determine whether government impermissibly retaliated against employee’s free speech rights); Michael L. Wells, Section 1983, the First Amendment, and Public Employee Speech: Shaping the Right to Fit the Remedy (and Vice Versa), 35 Ga. L. Rev. 939, 952 (2001) (citing Connick, 461 U.S. at 146, 150) (describing three-part Pickering-Connick test); see also 3 Unjust Dismissal § 11.01 (“Determining when a public employee’s speech deserves constitutional protection entails making a ‘balance between the interests of the [public employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’” (quoting Pickering, 391 U.S. at 568)).
 See Pompino v. Town of Ashland, 2016 U.S. Dist. LEXIS 14366, at *10 (citing Decotiis, 635 F.3d at 29) (stating First Circuit’s test).
 Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citation omitted)) (describing broad definition of what constitutes matter of public concern); see also Wells, supra note 3, at 953 (citation omitted) (implying matter of public concern to be much speech outside of “personal grievance or as part of performing the job itself”). But see Erika Eisenoff, Note, Hear No Evil, See No Evil… Speak No Evil? A Re-Examination of Public Employee Free Speech Rights, 9 First Amend. L. Rev. 643, 649 (2011) (holding public employee who speaks pursuant to official duties is not speaking as public citizen on matter of public importance (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Compare Connick, 461 U.S. at 148 (finding “questions pertaining to confidence and trust that [petitioner’s] co-workers possess in various supervisors, the level of office morale, and the need for a grievance committee” as private concern as employee), with id. at 149 (holding question regarding “pressure to work in political campaigns on behalf of office supported candidates” touches on matter of public concern).
 Joe Difazio, Braintree Teacher Won’t Return as Dedham Football Coach Over Differences in Values with District, Patriot Ledger (Jan. 26, 2021, 4:35 PM), https://www.patriotledger.com/story/news/2021/01/26/braintree-teacher-wont-return-dedhams-football-coach/4257968001/ (quoting school’s reasons for firing Flynn as head coach).
 See Joe Difazio, Fired Dedham Football Coach, Braintree Teacher Suing Dedham Administrators Over ‘Retaliation’, Patriot Ledger (Feb. 23, 2021, 3:41 PM), https://www.patriotledger.com/story/news/2021/02/23/fired-dedham-football-coach-suing-administrators-claiming-retaliation/4560504001/ (stating Flynn’s suit claiming retaliation for exercising free speech rights); see also 42 U.S.C. § 1983 (“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, immunities, or privileges secured by the Constitution and laws, shall be liable to the party injured in an action at law, in equity, or other proper proceeding for redress.”); Compl. ¶¶ 17-23, 34, 37-51, Flynn v. Forrest, 1:21-cv-10256 (D. Mass. Feb. 16, 2021) (alleging retaliation for protected speech and petitioning in civil rights claim against administrators).
 Compl. ¶¶ 20-21 (claiming course covered unrelated material and alleging teacher used official position to express support for political movement).
 See id. at ¶¶ 22-28 (expressing disapproval of superintendent’s response and claiming “[t]he Superintendent was not willing to compromise”); see also Difazio, supra note 7 (noting Flynn sent email to committee members and concerned parents).
 See Compl. ¶ 29 (stating Flynn removed children from Dedham believing “the issue was behind them”).
 See id. at ¶ 32 (alleging superintendent had printed and presented Flynn’s email following first meeting with superintendent and asked whether Flynn sent it to parents as well).
 See id. at ¶ 34 (“We are also writing today and are sorry to inform you that Dave Flynn will not be reappointed as the Head Coach of Dedham High School football. We met with Mr. Flynn today because he has expressed significant philosophical differences with the direction, goals, and values of the school district. Due to these differences, we felt it best to seek different leadership for the program at this time.”).
 Id. at ¶¶ 40, 42, 48, 50 (alleging school acted under color of state law to deprive Flynn of constitutional rights and petitioning administration was “substantial or motivating factor” in firing decision).
 See id. at ¶¶ 37-51 (claiming Flynn exercised free speech and petition rights as parent, not head coach of football program).
 For further discussion of how Flynn’s claim is likely to succeed, see infra notes 17-39 and accompanying text.
 For further discussion of how Flynn’s speech likely constitutes as touching on matter of public concern, see infra notes 17-23 and accompanying text.
 See Compl. ¶ 40 (claiming Flynn was speaking “as a parent and a citizen raising a matter of public concern, not as the [Dedham High School] head football coach raising matters about the DHS football program”).
 See Compl. ¶¶ 10-11, 29 (“Plaintiff has two children who, at all relevant times, were enrolled in Dedham Public Schools.”)
 See Compl. ¶¶ 24, 29 (noting at least twenty other parents shared similar concerns as Flynn); see also Pickering v. Bd. of Educ., 391 U.S. 563, 572 (1968) (finding petitioner no more or less qualified “than any other taxpayer” to comment on issue); Decotiis v. Whittemore, 635 F.3d 22, 33-34 (1st Cir. 2011) (finding petitioner’s speech was not employee speech because it did not bear official employer approval and was “sufficiently analogous to the speech of other citizens in the community troubled by the . . . policy”).
 Pickering, 391 U.S. at 574 (stating petitioner’s teaching position was not intrinsically tied to content of petitioner’s speech); see also Compl. ¶¶ 24, 39, 46 (noting Flynn’s concerns as parent of school child that were shared by other parents); Howard L. Zwickel, In Support of an Implied State Constitutional Free Speech Tort in Public Employment Retaliation Cases, 78 Alb. L. Rev. 33, 45-46 (2015) (stating public employment free speech retaliation claims involved protected speech “not directly related to the employee’s usual job duties” and not speech related to personnel matters).
 See Compl. ¶¶ 23-24, 26 (noting communications to other parents, citing concerns shared by other parents on contents of “World Geography and Ancient History I” course, and expressing concern with content of daughter’s instruction).
 John E. Rumel, Public Employee Speech: Answering the Unanswered and Related Questions in Lane v. Franks, 34 Hofstra Lab. & Emp. L.J. 243, 257 (2017) (quoting Lane v. Franks, 573 U.S. 228, 240 (2014)) (noting Garcetti Court did not transform citizen speech to employee speech merely because employee’s speech “concern[ed]” information acquired through employment); see also Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 26 (1st Cir. 2010) (describing two-part analysis to determine whether employee’s speech was protected by looking at “employee’s official duties” and whether speech was “made pursuant to those responsibilities”); Compl. ¶¶ 10, 17-29 (describing Flynn and wife’s actions not as coach, but as parents of Dedham students).
 See Baron v. Suffolk Cty. Sheriff’s Dep’t, 402 F.3d 225, 233 (1st Cir. 2005) (“Where a public employee speaks out on a topic which is clearly a legitimate matter of inherent concern to the electorate, the court may eschew further inquiry into the employee’s motives as revealed by the ‘form and context’ of the expression.” (quoting O’Connor v. Steeves, 994 F.2d 905, 913-14 (1st Cir. 1993))); see also Bates v. McKay, 321 F. Supp. 2d 173, 180 (D. Mass. 2004) (distinguishing speech on matters of public importance from those “related directly to the plaintiff’s personal interests, and was of minimal public importance”) (citation omitted)). For further discussion of broad definition of “matter of public importance,” see supra note 5 and accompanying text.
 See Curran v. Cousins, 509 F.3d 36, 47 (1st Cir. 2007) (quoting Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)) (stating next part of inquiry requires determining whether government had “adequate justification” for firing employee).
 See id. at 50 (“The statements here directly went to impairing discipline by superiors, disrupting harmony and creating friction in working relationships, undermining confidence in the administration, invoking oppositional personal loyalties, and interfering with the regular operation of the enterprise.” (citing Rankin v. McPherson, 483 U.S. 378, 388 (1987))).
 See Compl. ¶ 49 (“Plaintiff’s interest in speaking out, as a parent and as a citizen, about the instruction his daughter was receiving outweighs any interest Dedham Public Schools may have had in promoting the efficiency of the educational and other services it provides. Had Plaintiff remained as DHS’s head football coach, his protected speech would not have had any effect on his performance as coach, the upcoming football season, the DHS football program, or the operation of Dedham Public Schools.”).
 See id. at ¶ 35 (claiming Flynn knows of no other reason he was fired except expressing concern and dissatisfaction by exercising free speech rights through the email he sent to committee members and small group of parents); see also Sera Congi, Dedham Students Protest High School Football Coach Change, WCVB (last updated Jan. 21, 2021), https://www.wcvb.com/article/dedham-students-protest-football-coach-change/35283001 (noting it was unclear “specifically what prompted the move” except for superintendent’s statement citing “significant, repeatedly expressed, philosophical differences with the direction, goals, and values of the school district”).
 See Curran, 509 F.3d at 47-48 (stating employee made “threatening and menacing” comments while suspended as well as posting “highly inappropriate and violent comments regarding Adolf Hitler and the Nazis” and equating sheriff to Hitler); id. at 49 (“Speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balance.” (citing Jordan v. Carter, 428 F.3d 67, 74 (1st Cir. 2005)) (citation omitted)).
 Compl. ¶¶ 41, 49 (claiming Flynn’s interests as concerned parent outweigh school’s interests in promoting efficiency).
 See Juan Carlos Tedesca et. al, The Curriculum Debate: Why It Is Important Today, 44 Prospects 527-46 (2014) (arguing “educators should first rethink the role of the school curriculum and ensure a wider policy dialogue around curriculum design and development”).
 See Pickering v. Bd. of Educ., 391 U.S. 562, 569-70 (1968) (“Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.”).
 Id. at 573 (finding balance of competing interest tipped in petitioner’s favor due, in part, to contention that employer would have no right to silence same speech by non-employee). For further discussion of how Flynn’s concerns were shared by non-Dedham employees, see supra notes 18-20 and accompanying text.
 See Curran, 509 F.3d at 45 (“That third question is concerned with causation, with whether the plaintiff can show that the protected expression was a substantial or motivating factor in the adverse employment decision.”).
 See Compl. ¶¶ 11-16 (noting Flynn’s successful football season as student and several more as head coach of other teams, and describing Flynn as “well-liked and highly respected among parents and students”); see also Congi, supra note 27 (noting Dedham students protested following Flynn’s termination); Samantha Mercado, Dedham Football Coach Flynn Sues District Following Removal, Patch (Feb. 22, 2021), https://patch.com/massachusetts/dedham/dedham-football-coach-flynn-sues-district-following-removal (stating several current and former players under Flynn holding rallies following termination).
 See Compl. ¶¶ 34-35 (suggesting only reason for Flynn’s termination was his email).
 See id. at ¶ 31 (claiming Flynn was still listed as football head coach on school’s website at time of complaint).
 See Compl. ¶¶ 32-34 (detailing timeline and subject matter of meeting and subsequent termination); see also Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 24 (1st Cir. 2010) (stating substantial or motivating factor requires enough evidence to support claim that plaintiff’s “protected activity or status was an impetus for, or moved the employer towards the [employment] decision” (quoting Costa-Urena v. Segarra, 590 F.3d 18, 25 (1st Cir. 2009))).
 Cf. Mercado-Berrios, 611 F.3d at 24-25 (rejecting claim firing decision predicated on aggressive attitude towards taxi and limousine drivers was pretext for disagreement with political views). Here, however, the school did not offer other reasons to give rise to claim of pretext, but instead stated outright its reason for firing Flynn. See Compl. ¶ 34 (quoting superintendent’s letter to football players and their families); see also Congi, supra note 27 (citing only “philosophical differences” rationale); Difazio, supra note 7 (“The letter did not state what the differences were and administrators did not clarify them when asked at the time by The Patriot Ledger, saying it was a personnel matter.”); Mercado, supra note 34 (“David Flynn was not reappointed as Dedham High School football coach after the district cited differences in values.”).
 For further discussion of how court will likely find email was “substantial or contributing factor,” see supra notes 33-38 and accompanying text.