WAUKESHA — A federal judge on Wednesday denied the School District of Waukesha’s request to dismiss the lawsuit filed by Melissa Tempel, the teacher fired after her tweet and comments following the district’s decision to remove the song "Rainbowland" from a Heyer Elementary spring concert, finding that she has sufficiently alleged that the firing violated her First Amendment rights.
Tempel was placed on leave last spring and then fired in July, despite no prior disciplinary record, after comments she made online and in interviews related to the district’s decision to strike "Rainbowland," a song by Miley Cyrus and Dolly Parton, from a spring concert at Heyer on the basis that it went against the district’s "Controversial Issues in the Classroom" policy. She tweeted, "My first graders were so excited to sing Rainbowland for our spring concert but it has been vetoed by our administration. When will it end?" and then posted the song’s lyrics.
Tempel filed a lawsuit alleging the firing violated her First Amendment rights in September, saying she made the comments on her own time and on her personal Twitter account. The district sought to have her suit dismissed, arguing that a public employee’s speech, made purely out of personal interests, does not automatically receive First Amendment protection. Such protection applies when the subject is a matter of public import, but Joel Aziere, attorney for the school district, wrote in a reply brief that deciding which song first-graders sing at a spring concert is not a matter of public import. He added the district’s interests in running efficiently outweighed Tempel’s free-speech rights, due to the “substantial disruption” the comments caused. National publicity led to threatening phone calls and emails that caused the district to increase security and police presence at the school, and it had to divert “significant time and resources to managing and responding to the dire circumstances” Tempel created, Aziere said.
But on Wednesday, U.S. Magistrate Judge Nancy Joseph ruled that Tempel had laid out a sufficient basis to allege her firing violated her First Amendment rights, and that Superintendent James Sebert was a responsible party in it, and denied the district and Sebert’s request to dismiss the suit.
Joseph found the tweet in question was sent after school hours, and interviews Tempel gave to media were done off district grounds and during her personal off-duty time, including the district’s spring break last March.
“Accordingly, the complaint sufficiently alleges that the speech in question was not ordinarily within the scope of Tempel’s duties but was done during nonwork hours on her own initiative. That the speech in question concerns Tempel’s duties as a teacher does not automatically transform it into non-citizen speech. Thus, dismissal is not warranted on this ground,” Joseph wrote.
Joseph found that the topic, in light of the controversy engendered by the Controversial Issues policy the district used to ban “Black Lives Matter” signs and messages supporting GLBTQ causes, was a matter of public concern, and not simply an employee’s gripe. A balancing test to weigh whether the speech would create discord among co-workers or impaired Tempel’s ability to do her job, examining the timing and manner of the speech and whether the speaker should be regarded as a member of the general public cannot be done on pleadings alone, and is needed, she said. While the district encouraged a decision based on the pleadings alone and an investigative report by the district and Sebert’s letter recommending she be terminated, Joseph said such analysis is only possible after the sides exchanged discovery.
The district’s position has been Tempel wasn’t fired for what she said, but for how she said what she did in a disruptive manner in violation of board policies. But Tempel showed the district investigation and her firing came after the tweet she sent.
“Thus, Tempel alleges sufficient facts, including the context and timing of her termination, to sufficiently allege that her First Amendment activity was a motivating factor in her termination,” Joseph wrote.
Joseph also found that there were sufficient allegations by Tempel to make a claim against Sebert in his personal capacity. The district said Sebert was not acting under color of law because it was the School Board that made the decision to fire Tempel. But Joseph said Sebert had authority to order the investigation of Tempel and to recommend her firing, which the board followed. As such it is “difficult to find that these facts as pled do not sufficiently demonstrate that Dr. Sebert’s actions were related ‘in some way to the performance of the duties of the state office,’” Joseph said. “I cannot find, as a matter of law, on the pleadings alone that Dr. Sebert’s conduct was not deliberate or in reckless disregard of Tempel’s rights and was in fact reasonable. And again, Tempel alleges multiple facts tying the alleged constitutional deprivation to Dr. Sebert’s actions.”
The district argued Sebert enjoyed qualified immunity to make such decisions, but Joseph said that only applies when allegations do not claim violations of settled law — and Tempel alleges a violation of a constitutional right clearly established at the time of her firing.
Tempel’s attorney Summer Murshid said in an email late Wednesday, “We are, of course, very pleased with the Court’s denial of the District’s Motion to Dismiss. The Court found that Ms. Tempel’s complaint sufficiently states claims against both the District and Dr. Sebert. As such, we look forward to litigating the merits of this case and getting to the heart of Ms. Tempel’s First Amendment claims.”
Aziere could be reached for comment after business hours Wednesday.
