By Dr. Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
In February 2021, David Flynn, former head coach of the Dedham High School football team, after not being rehired to coach for the 2021 season, filed a federal lawsuit in the U.S. District Court, District of Massachusetts, against three Dedham school board administrators: Michael Welch (Public School Superintendent), Jim Forrest (Principal of Dedham High School), and Stephen Traister (Director of Athletics at Dedham High School). As per his lawsuit, Mr. Flynn alleged that his termination (or more accurately – the administration’s decision not to renew his contract) was a violation of his First Amendment right of free speech since the non-renewal was, in his opinion, retaliation for a series of emailed statements he made about his daughter’s middle school social studies class.[1]
By way of background, from 2011 through 2019, Mr. Flynn was appointed to a series of one-year contracts wherein he served as the head coach for the Dedham High School football team for a reported salary of $9,936.00 annually.[2] His claimed First Amendment violation occurred outside of his coaching duties and comprised of emails he sent to a number of school administrators and various community members about the curriculum surrounding his daughter’s 7th grade social studies class.
One email sent by Mr. Flynn to Superintendent Michael Welch on October 14, 2020, stated that he and his wife were removing their two children from the Dedham public school system because his daughter’s social studies class had been changed “without proper notifications to parents, without a curriculum, without a course syllabus and without a course learning objective.”[3] Continuing, he expressed concerns about a specific classroom activity that involved “defining stereotype, prejudice and discrimination”, together with the fact that on the course’s online learning platform there was an “emoji teacher wearing a Black Lives Matter shirt.”[4] Mr. Flynn also took exception to course material which in his interpretation ‘suggested’ that police officers are a ‘risk factor’ to black men and that he and his wife “did not believe that pushing support for Black Lives Matter on a class website was presenting material objectively.”[5] Interestingly, Mr. Flynn highlighted in his complaint that he sent an email to the social studies teacher, in forgetting that she has her own First Amendment right to free speech, requesting that the teacher use a different emoji on the class website since BLM was controversial and created an unsafe learning environment.[6]
As part of a second email sent on October 22, 2022 to both Superintendent Welch and other members of the public school community, Mr. Flynn expressed his belief that both the Superintendent and the Dedham public schools “seemed to be supporting the BLM movement” and summed up the in-person meeting he had with Mr. Welch, in part, as follows:
- Mr. Welch supports BLM,
- Mr. Welch thinks Dedham is ‘Astronomically White’,
3) Mr. Welch allows politics in the classroom,
4) Mr. Welch thinks every employee of the school needs to be taught how to care for, communicate with and understand the lives of people from all races/cultures,
5) Mr. Welch has a goal to hire more “non-white” teachers,
6) Mr. Welch did not care that my daughter is scared when she sees the BLM logo in her class, nor did he care that I expressed how much it hurts me to have to remove my children from the schools I attended in the town I grew up in, and
7) Mr. Welch did not care that his teachers are indoctrinating 12-year-old children.[7]
After reviewing the emails, Superintendent Welch became concerned that given these public statements about both the school district and himself, Mr. Flynn could no longer represent Dedham High School as its head football coach and therefore supported not renewing his contract for the upcoming 2021 football season.[8] Upon learning that his contract would not be renewed, Mr. Flynn sued the three above mentioned school administrators, asserting two claims under 42 U.S.C. § 1983: retaliation for protected speech and retaliation for protected petitioning of the government in violation of the First Amendment. Accordingly, the three defendants filed a joint Motion for Summary Judgment.
In evaluating Mr. Flynn’s First Amendment claims against the school administrators it must be understood that public employees do not surrender their constitutional rights because of their employment; “rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”[9] Note however, that these rights are not absolute: “in recognition of the government’s interest in running an effective workplace, the protection that public employees enjoy against speech-based reprisals is qualified.”[10] To balance these competing interests, that of the public employee to speak freely and that of the public employer to operate efficiently, the courts have developed a three-part inquiry to determine whether an adverse employment action against a public employee violated that person’s right to free speech.[11]
The first part concerns whether the public employee “spoke as a citizen on a matter of public concern.”[12] The second part concerns whether, if the employee did so, “the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”[13] The third part concerns whether, if that government entity did not have an adequate justification, “the protected expression was a substantial or motivating factor in the adverse employment decision.”[14] Even then, “the employer must have the opportunity to prove that it would have made the same decision regardless of the protected expression.”[15]
The U.S. District Court, District of Massachusetts, in ruling on the defendant’s Motion for Summary Judgment found that the decision not to reappoint Mr. Flynn was an adverse employment action and that his speech was the factor that motivated that action.[16] The Court went on to state that the issues are therefore twofold: (1) whether his speech qualifies as protected speech, and (2) if so, whether the Defendants’ actions were adequately justified by countervailing government interest.[17]
Regarding the issue of whether or not Mr. Flynn’s emails were to be considered ‘protected speech’, the District Court found that since he used his personal email account to sum up the meeting he and his wife had with Superintendent Welch and that any parent could have voiced similar concerns in a same or similar manner, that there was nothing to suggest that Mr. Flynn would not have had the exact same concerns had he not been the head football coach.[18] Because of such, the District Court concluded that a jury could reasonably find that Mr. Flynn’s speech was protected by the First Amendment.[19]
However, in continuing with its analysis, the District Court stated that, “termination because of protected speech may be justified when legitimate countervailing government interests are sufficiently strong” to outweigh the free speech interests at stake.[20] The Court noted that, “Government interests outweigh First Amendment rights when employee speech prevents efficient provision of government services or disrupts the workplace.”[21] As such, courts must decide “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”[22]
Here the District Court found that Mr. Flynn did not only criticize the school district’s curriculum or values, he also directly criticized Superintendent Welch, stating that he (Welch) “doesn’t care about the people in this town.”[23] The District Court found that given the personal nature of Mr. Flynn’s attack on Superintendent Welch’s integrity, together with the public statements about the school district and Welch specifically in his October 22, 2022 email, that Mr. Flynn impaired ‘the working relationship with both his superiors and colleagues.’ Therefore, because of the damage he caused between himself and his co-workers, the District Court found that Mr. Flynn could no longer suitably represent Dedham High School as its head football coach and as such, is not entitled to First Amendment protection.[24]
What is extraordinary about Mr. Flynn’s quest to demand that the federal courts protect his First Amendment right to free speech is that there are others besides himself with opposing views or opinions that are also worthy of protection – a fact that is completely discounted and even ignored throughout his court pleadings. Fortunately, the District Court understood this and didn’t bend to the will of one to the detriment of the many. In doing so, it protected the free speech rights of all citizens.
[1] Case 1:21-cv-10256-IT Document 35 Filed 05/23/22.
[2] Due to COVID-19, the Dedham public schools began operating remotely in 2020, and there was no high school football season in the fall of 2020.
[3] Case 1:21-cv-10256-IT Document 1 Filed 02/16/21.
[4] Id.
[5] Id.
[6] In addition to Mr. Welch, the October 14, 2020 email was also forwarded to three members of the Dedham School Committee.
[7] Case 1:21-cv-10256-IT Document 1 Filed 02/16/21.
[8] Pl’s SOF ¶ 15 [Doc. No. 26].
[9] Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
[10] Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 26 (1st Cir. 2010).
[11] See Gilbert v. City of Chicopee, 915 F.3d 74, 82 (1st Cir. 2019).
[12] Bruce v. Worcester Reg’l Transit Auth., 2022 WL 1564096, at *4 (1st Cir. May 18, 2022).
[13] Id.
[14] Id.
[15] Id.
[16] Case 1:21-cv-10256-IT Document 35 Filed 05/23/22.
[17] Id.
[18] Id.
[19] Id.
[20] Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668, 675 (1996).
[21] Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 13 (1st Cir. 2003).
[22] Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty., Illinois, 391 U.S. 563, 570-73 (1968).
[23] Case 1:21-cv-10256-IT Document 35 Filed 05/23/22.
[24] Id.
