Case Particulars

Tribunal

United States Supreme Court

Date Filed

October 30, 2024

Docket No.

No. 24-355

Case Status

Certiorari Stage Briefing in Progress

Case Overview

Legal Insurrection had reported on the 2021 firing of, and subsequent lawsuit filed by Kari Macrae, a Massachusetts public school teacher fired for posting several memes that arguably denigrated CRT and other left-wing ideologies:

• Massachusetts Teacher Fired Over Opposition To CRT, LGBTQ Agenda In Schools
• Judicial Watch Suing on Behalf of Teacher Claiming She Was Fired for Social Media Posts About Critical Race Theory

Judicial Watch filed a federal civil rights lawsuit in federal court in Massachusetts on behalf of MacRae, see MacRae vs. Matthew Mattos and Matthew A. Ferron (No. 1:21-cv-11917).

Unfortunately, the Massachusetts federal court granted summary judgment to the school officials, meaning that the school officials won without needing to go to a jury trial, because supposedly their firing of Macrae was completely justified “as a matter of law.”

The court used what is called the “Pickering balancing” test, which involves comparing the employee’s right to free speech with the government’s need to “promot[e] the efficiency of the public services” it provides. So, for example, if a teacher or other government employee was giving a speech likely to incite a race riot at the government’s offices, the government might be justified in penalizing that employee up to and including firing.

The six memes Macrae had published on her anonymous TikTok account included the following:

• A photo of Dr. Rachel Levine, the United States Assistant Secretary for Health and a transgender woman, with text that reads: “ ‘I’m an expert on mental health and food disorders.’ … says the obese man who thinks he’s a woman.”

• A text display that reads: “I feel bad for parents nowadays. You have to be able to explain the birds & the bees …The bees & the bees … The birds & the birds … The birds that used to be bees … The bees that used to be birds … The birds that look like bees … Plus bees that look like birds but still got a stinger!!! …”

• A photo of a muscular, bearded man wearing a sports bra with text at the top that reads: “Hi my name is Meagan, I’m here for the Girl’s track meet.” The photo then includes additional text at the bottom that reads: “Equality doesn’t always mean equity.”

• A photo of a young and (presumably) white American man with text that reads: “Retirement Plan: 1) Move to Mexico 2) Give up citizenship 3) Come back illegally 4) Set for life!

• A photo of a panda bear with text that reads: “Dude, racism is stupid. I am black, white, and Asian. But everyone loves me.”

• A photo of Thomas Sowell with a quote that reads: “Racism is not dead, but it is on life support — kept alive by politicians, race hustlers and people who get a sense of superiority by denouncing others as ‘racists.’ ” The photo then includes additional text at the top that reads: “Thank you Mr Sowell!!”

From the court, which agreed with school officials that these memes could cause school disruption:

Defendants [i.e. the school officials], however, “need not ‘allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.’” Defendants have adduced ample evidence to show that MacRae’s speech had the potential to disrupt the District’s learning environment. Although MacRae objects that “Ferron, Mattos, and Plummer only relied on their own beliefs in concluding that MacRae’s social media posts would be a disruption in the classroom,” those beliefs were supported by school administrators’ training and experience. Moreover, MacRae acknowledged in her September 24, 2022 interview that “she could understand why Mattos thought that the situation in Bourne may impact the learning environment in Hanover.” As a teacher, MacRae’s role required her to interact with members of the public, including students and parents on a regular basis… “[T]he more the employee’s job requires … public contact, the greater the state’s interest in firing her for expression that offends her employer” and concluding that teacher had “direct contact with members of the public every day.” Students in MacRae’s classroom and within the District embodied characteristics that MacRae’s posts appeared to denigrate.

So Macrae appealed to the federal First Circuit Court of Appeals, which covers Massachusetts, hoping to get the order reversed. But that didn’t happen:

Positive that Defendants had unconstitutionally retaliated against her for exercising her First Amendment rights, Macrae took them to court. But Defendants didn’t agree with her take on things, and neither did the district court, which granted their motion for summary judgment. Now on appeal, Macrae implores us to do some course correction and fix what she says the district court got wrong. After taking the time to carefully review both sides’ arguments, however, we conclude that the district court got it right. In other words, we affirm.

So Macrae has filed a Petition for Certiorari, or request to review the case, with the United States Supreme Court, and argues that the Pickering Balancing test shouldn’t apply because she published the memes well before she was ever hired as a public school teacher. Thus, she should not be punished for past speech. This would have the effect, Macrae argues, of chilling the speech of anyone who aspires to someday be a public school teacher, because they wouldn’t know how far back school officials could look for potentially offending speech.

As we have often noted in prior posts, getting the Supreme Court to review any case is an uphill battle because they only review about four percent of cases submitted, so the odds for Macrae are not strong.

But, the Equal Protection Project (EPP) reviewed the case and decided that it might make sense for EPP to submit an amicus curiae, or “friend-of-the-court” brief on Macrae’s behalf, given EPP and Legal Insurrection’s longstanding commitment to supporting the free speech rights of teachers and parents in the public school system, who often have their speech rights curtailed by overbearing left-wing school administrators. See EPP’s amicus brief supporting parents’ free speech rights filed in the Pitta v. Medeiros case, and Legal Insurrection’s efforts spotlighting free speech violations against teachers and parents:

• Judicial Watch Demands Providence (RI) Schools Cease and Desist “Retaliation and Harassment” Of [teacher] Ramona Bessinger
• Providence Anti-CRT Whistleblower Teacher Ramona Bessinger Hit With Suspension And Transfer
• Teachers Union Sues Mom Nicole Solas To Prevent School District From Releasing Critical Race Teaching Records

EPP’s amicus brief was filed in support of Macrae on October 30, 2024. In the brief, which was filed pro bono on EPP’S behalf by Boston intellectual property attorney Ron Cahill of Barnes & Thornburg LLP, EPP supports Macrae’s argument for review by the Supreme Court, namely that the First Circuit improperly used the Pickering Balancing test on speech made before employment, but also argues several other key points unaddressed by Macrae:

• The First Circuit improperly focused on the memes themselves, to the exclusion of the surrounding context of that speech, as required by binding Supreme Court precedent. Analyzing the surrounding facts of the case would have revealed that Macrae’s speech was a concerted part of her campaign for a seat on the Bourne, Massachusetts school board, which she won (prior to her employment as a Hanover, Mass school teacher). Because the speech was “political” in nature, it should have been afforded maximum First Amendment protection.
• An analysis of similar prior cases shows that summary judgment is almost never granted in cases like these because the number of disputed factual issues, which should be decided by a jury, not a judge, is large.
• The courts improperly afforded Macrae less First Amendment protection, not more, because they the courts thought her speech was demeaning, but that is not the law. As the Supreme Court ruled in the infamous “Slants” trademark case about the Korean rock band that wanted to trademark their name, just because something is derogatory does not mean it is automatically worth less from a free speech (or trademark worthiness) perspective.
• The courts improperly deferred to the school administrators in their determination of whether the likelihood of school disruption was reasonable or not. As we found out in the recent Supreme Court case regarding so-called “Chevron” deference, the Supreme Court has little patience for courts deferring to government officials in the execution of their duties.
• There is an almost identical case that was in Ohio, before the federal Sixth Circuit court of appeals, that came out the opposite way, with the court holding that the teacher’s speech deserved First Amendment protection. This sets up a classic “Circuit Split” in which different courts of appeal come out differently on similar facts, which is one of the main drivers supporting SCOTUS granting review.

The Opposition to Macrae’s Petition for Certiorari is due to be filed on December 30, 2024, and Macrae will have have an opportunity to Reply to that filing after that. Then the Supreme Court will decide whether to take and review the case.