SEVENTH CIRCUIT REFINES SCOPE OF FREE SPEECH RIGHTS OF PUBLIC EMPLOYEES
In Hedgepeth v. Britton (7th Cir., August 26, 2025) the United States Court of Appeals for the 7th Circuit upheld the termination of a high school teacher who posted inflammatory content on her personal social media accounts. The case demonstrates that while public employees do retain a wide degree of latitude regarding social media postings, there can be circumstances where they “cross the line” and place their employment in jeopardy.
The employee in question had been suspended by the school for “disruptive behavior” that she had engaged in at school on two previous occasions, and was subject to a remediation plan at the time of the incident. She nonetheless responded to news regarding the George Floyd protests in 2020 with inflammatory remarks on social media, which were viewed by previous students and which quickly caused an uproar at the school. Her comments included, among others, that “the civil war has begun” and a suggestion that septic tank trucks should be used to pour sewage on protesters.
The Court addressed the plaintiff’s concern regarding the potential for a "heckler's veto". Generally speaking, the mere fact that speech riles-up an energized portion of the general public is not a legitimate basis to discipline a public school employee. However, as the Court points out, the persons riled-up here were students and parents, and their concern related to a teacher. There are a number of Appellate Court cases that say this "hecklers veto" argument does not apply under such circumstances because teachers need to have a working relationship with students and their parents.
The District argued that, based on the balancing test typically applied in such cases, the disruption to the teacher's ability to perform her duties was of such a magnitude that it outweighed the fact that the employee was speaking as a private citizen on a matter of public concern. The Illinois State Board of Education, the Federal District Court, and the Seventh Circuit all looked at the facts and unanimously agreed: under these circumstances, the teacher wasn't entitled to a fourth opportunity to disrupt her relationship with parents and students.
We note that this case is fact-specific. If this teacher hadn't said these things in this exact context (for instance, if she had only been suspended once, a few years earlier, and hadn't been suspended the preceding year and placed on a remediation plan), the result could have been completely different. If the school wasn't able to make a massive and un-rebutted case of classroom disruption, the result could have been completely different.
It remains the case that teachers can rarely be fired for posting outrage-inducing comments on social media. However, the patience of Courts has its limits, as demonstrated by this case.
Our office will continue to monitor developments in First Amendment jurisprudence that impacts school districts. Those with questions regarding the impact of this Federal case are encouraged to contact their district’s attorney.
Posted 10-2-25
AVOID TRAPS FOR THE UNWARY WHEN IMPLEMENTING THE NEW COVID-19 PAID ADMINISTRATIVE LEAVE ACT
On April 5, 2022 Public Act 102-0697, colloquially referred to as the COVID-19 Paid Administrative Leave Act (hereinafter, the “Act”), became effective and placed a number of new Administrative burdens upon School Districts. While the essential requirements of the Act are widely known, School Districts should take care to avoid traps for the unwary which might otherwise cause considerable Administrative headaches.
First, the deadline for an employee to become “fully vaccinated” within five (5) weeks of April 5, 2022 applies only to the granting of retroactive leave prior to April 5, 2022 to which the employee is entitled. This deadline does not apply to paid Administrative Leave that is sought for paid Administrative Leave covering any period of time after April 5, 2022. Employees may access paid Administrative Leave for periods of time after April 5, 2022 so long as the employee is fully vaccinated at the time of the request for such leave, regardless of whether or not such full vaccination status was achieved before or after April 5, 2022.
Second, while the “Paid Administrative Leave” provisions of the Act allow School Boards to establish documentation requirements for the granting of such leave, School Boards much nonetheless take affirmative action, and not presume that such authority has been previously delegated to the District’s Administration.
Third, the Act’s provisions regarding the granting of retroactive sick leave does not define what documentation the School District may require for this purpose. While we suggest that School Boards can consider the same documentation for retroactive sick leave as they require for retroactive paid Administrative Leave, School Districts should remain mindful of the School Code’s continuing limitation upon requiring doctor’s notes for absences of three (3) days or less.
Finally, while the Act establishes no firm deadlines for School Districts to determine which employees are entitled to retroactive leave, Schools are well advised to addressing such possible reimbursement at their earliest opportunity in accordance with TRS and IMRF reporting guidelines rather than allow the issue to linger and potentially complicate future employment separation arrangements.
Posted 5-12-22
SUPREME COURT PROTECTS HIGH SCHOOL TEACHER'S PERSONAL PRAYER AFTER FOOTBALL GAME
On June 27, 2022 United States Supreme Court ruled in the case of Kennedy v. Bremerton School District (hereinafter, the “ruling”) that a high school football coach who knelt at midfield after three football games in order to offer a quiet personal prayer should not have been the subject of disciplinary action by his employing public school district. The school district argued that his behavior conveyed the message that the school district tacitly and impermissibly endorsed his religious views. The Court disagreed, ruling that the school district’s disciplinary actions violated the employee’s right to free speech and free exercise of religion under the First Amendment of the United States Constitution.
The ruling makes clear that public employees retain a right to engage in private religious practices during the school day to the extent that they are not leading or encouraging student religious practices and are otherwise complying with neutral and/or generally applicable school policies. The factual circumstances upon which this ruling is based, however, leaves open many questions.
For instance, in reaching its ruling the Court stressed that no students of the coach’s school district participated in the post-game prayers on the fifty (50) yard line in question. The Court stressed that there was no competent evidence that any of the coach’s players felt tacitly coerced to participate in any such prayers. Further, the Court noted that the coach had informed the school’s administration that he would be willing to wait until after the students had cleared the field before engaging in his “quiet” post-game prayer.
Would the Court have reached a different result under different factual circumstances? Perhaps. If the coach had been leading his student-players in loud prayer after these games it appears likely that the Court would have supported the school district in disciplining the coach for such behavior. However, the Court has not clearly indicated how it would treat more mixed factual circumstances.
Going forward school districts will, based upon this ruling, want to be mindful of respecting the religious expressions of its employees to the extent that they do not directly interfere with their employment duties. At the same time school districts will want to continue safeguarding against creating any reasonable impression among its local community that it is endorsing a religious viewpoint.
Posted 6-28-22
APPELLATE COURT REJECTS APPEAL BASED ON HEALTH CARE RIGHT OF CONSCIENCE ACT
On April 13, 2022 the 4th District Appellate Court of Illinois rejected an appeal of a Circuit Court decision wherein the Circuit Court refused to grant to public employees a Temporary Restraining Order (TRO) that would bar public employers from enforcing a workplace policy requiring all employees either to be vaccinated against COVID-19 or, alternatively, to undergo regular testing for COVID-19 (hereinafter, the “vaccination requirement”). The decision may have significant implications for Illinois school districts.
The Appellants argued that the vaccination requirement violated their consciences and that the Health Care Right of Conscience Act (745 ILCS 70/1 et. seq., hereinafter the “Conscience Act”) prohibits “discrimination” against the unvaccinated employees regarding matters of conscience. The Appellate Court disagreed, reasoning that the language of the Conscience Act is ambiguous as to its applicability to the vaccination requirement. The Appellate Court held that a recent statutory revision to the Conscience Act (Public Act 102-667), which clarifies that the Conscience Act does not apply to district-level vaccination requirements (among other mitigations) and which states that this legislative clarification “… is a declaration of existing law…”, could be used by the Circuit Court as an “…interpretive aid…” in reaching its decision to deny granting the TRO based on the Conscience Act.
This Appellate Court decision, while subject to a possible appeal to the Illinois Supreme Court, casts significant doubt on the ability of public employees and others to use the Conscience Act as a basis for objecting to the use of district-level Covid-19 mitigation efforts by public bodies. It should be noted, however, other Court challenges to such authority, based upon other legal theories including but not limited to the Governor’s mandates, continue to work their way through the Illinois Court system. Thus, Illinois public employers should continue to carefully monitor such developing legal authority.
Posted 4-14-22