No free speech claim after school directed teacher to remove gay pride flag from classroom

The Court of Appeals has ruled that a school teacher in Suffolk County did not have the First Amendment right to post pride flags and stickers in her classroom, and that the district did not violate the Constitution when it ordered her to remove these expressive decorations. 

The case is Dolce v. Connetquot Central School District, issued on August 31. Plaintiff, a math teacher, had a large pride flag in her classroom for years, along with a traditional pride flag covering the white board. But a few years ago, after some students said they were uncomfortable with the flags, the school told her to replace the flags with a sign that said, "This is a safe place to be who you are." Plaintiff did not remove the pride flags and two other LGBTQ+ teachers (who are also plaintiffs here) advocated on the math teacher's behalf in an effort to keep the pride flags on the wall. Ultimately, the district said that school policy only permitted the U.S. flag and the New York State flag in classrooms, and that employees could not engage in "political practices" on campus. Shortly thereafter, the district said that pride stickers in the classroom were also disallowed.  

This case involves speech -- placement of the pride flags and stickers -- but that does not make it a viable frees speech case. The First Amendment has its share of balancing tests and frameworks depending on the circumstances. For public employees, the plaintiffs have to show they spoke as a citizen (protected speech) and not as an employee (unprotected speech). Under the Supreme Court's Garcetti ruling in 2006, speech is unprotected if it "owes its existence to a public employee's professional responsibilities." If that is the case, then the government can control the speech. Under more recent Supreme Court authority, Kennedy v. Bremerton School District, 597 U.S. 507 (2022) (the football coach prayer case), courts consider whether, given the "timing and circumstances" of the speech, the expression is what "the employee is expected to deliver in the course of carrying out his job." The Second Circuit's reliance on Kennedy is significant: it is the first time the Second Circuit has cited Kennedy for that proposition in a public employee speech case.

Since public school teachers are expected to teach a particular curriculum and to create classroom learning environments and materials to support that curriculum, the wall decorations in this case owe their existence to their core professional responsibilities, and the district may therefore ask them to remove the decorations without violating the First Amendment. And, while Garcetti has a carve-out for college professors, who have leeway to present their views and speak freely, that exception does not apply in the grade-school context, where work-related speech rules are more restricted and teachers have to follow a curriculum. The Second Circuit (Nathan, Park and Kahn) holds for the first time that Garcetti governs a public school teacher's curricular speech. 

Plaintiffs also assert a Title VII claim on the basis of sex discrimination. But that claim fails because they cannot prove an adverse action, even under the more lenient test in Muldrow v. City of St. Louis, 601 U.S. 346 (2024), which dispenses with the "materiality" or "significant" test and instead asks whether the plaintiff can prove "some harm respecting an identifiable term or condition of employment." The Court of Appeals holds there is no adverse action here because there was no discipline, termination, or loss of pay but instead a directive that they remove the pride flags and stickers from the classroom walls. That directive does not implicate Muldrow because it does not impact "an identifiable term or condition of their employment." Nor does it reflect "some injury respecting one."