Natalie Munroe v. Central Bucks School District

Plaintiff Natalie Munroe filed this First Amendment

retaliation action against Defendants Central Bucks School

District (“School District”), School District Superintendent N.

Robert Laws, and Central Bucks East High School (“CB

East”) Principal Abram Lucabaugh. The School District fired

Munroe, an English teacher at CB East, after her blog—in

which she made a number of derogatory comments about her

own students—was discovered. She appeals from the order

of the United States District Court for the Eastern District of

Pennsylvania granting the Defendants’ summary judgment

motion. We agree with the District Court that, pursuant to the

Pickering balancing test, Munroe’s speech did not rise to the

level of constitutionally protected expression. Accordingly,

we will affirm.

I.

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In 2006, Munroe was hired by the School District and

assigned to teach English at CB East in Doylestown,

Pennsylvania. Her performance evaluations indicated that

she was generally considered to be an effective and

competent teacher. For example, an October 2006 review

praised her abilities and work habits. In June 2008,

Lucabaugh wrote a letter of recommendation in support of

Munroe’s application for admission to a graduate program.

He described Munroe as a “woman of utmost integrity,

character, and intelligence,” “a consummate educator with a

sparkling future,” and “a woman whom I respect both

personally and professionally.” (A175.) The School District

granted Munroe tenure in March 2010.

In August 2009, Munroe began a blog entitled Where

are we going, and why are we in this handbasket? Blogging

under the name “Natalie M,” she did not expressly identify

either where she worked or lived, the name of the school

where she taught, or the names of her students. According to

Munroe, her blog was meant to be viewed by friends that she

had asked to subscribe. She did not intend for it to be read by

the public at large. For most of the blog’s history, there were

no more than nine subscribed readers, including Munroe

herself and her husband. However, no password was required

to access the blog.

Munroe wrote a total of eighty-four blog posts

between August 2009 and November 2010, “most of which

had nothing to do with her school or work.” (Appellant’s

Brief at 6 (citing A208-A254, A412-A452).) Intended as a

vehicle to keep in touch with friends, Munroe mostly

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addressed personal matters like her food and film preferences,

her children, and her regular yoga classes. On a number of

occasions, she wrote about her co-workers, the School

District administration, her students, and their parents.

In what the District Court called “one memorable

passage,” Munroe v. Cent. Bucks Sch. Dist., 34 F. Supp. 3d

532, 538 (E.D. Pa. 2014), Munroe explained that she was

entering grades, discussed the grading process, and, finally,

offered some comments she would like to see added to the socalled

“canned” comment list used to fill out students’ report

cards. At the top of this January 20, 2010 blog post, there

was a depiction of a school bus with a “Short Bus” sign and

the following heading: “I DON’T CARE IF YOU LICK

THE WINDOWS, TAKE THE SPECIAL BUS OR

OCCASSIONALLY PEE ON YOURSELF … YOU

HANG IN THERE SUNSHINE, YOU’RE FRIGGIN

SPECIAL.” (A245). Munroe then stated the following:

I’m being a renegade right now, living on the

edge and, um, blogging AT work.

However, as I’m blogging about work stuff, I

give myself a free pass of conscience.

I’m in the process of entering grades, and also

need to enter comments for the grades. I used

to take a lot of time with this procedure,

choosing just the right comment(s) for my

students. If I put a negative one, I’d also put a

positive one to temper it. (When I was in

6

school, I hated when I got the same 2 or 3

comments from my teachers. It felt so

insincere.)

(For the record, my computer froze and had to

be shut down at work; when I rebooted, I didn’t

bother signing back on to finish this as other

things to do came up. At present, then, I’m not

being a renegade at all, as I’m writing this at my

kitchen table.)

Anyway, as I was saying, when I was first

teaching, I put a lot of time and effort into the

comments because I felt it was a great way to

communicate the students’ efforts. Then it got

to be a complete pain in the ass, just one more

thing standing between me and being done the

report cards, and suddenly I realized why I’d

always gotten the same comments from my

teachers: they didn’t want to do them any more

than I do. (I refuse to believe the alternative

reason that I’ll explore momentarily.)

Also, as the kids get worse and worse, I find

that the canned comments don’t accurately

express my true sentiments about them. So now

I pretty much choose “Cooperative in Class” for

every kid (or, in some instances, will speak in

other codes. For instance, if they talk a lot, I’ll

put “is easily distracted” or “talks persistently”;

if it’s a kid that has no personality, I’ll put

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“ability to work independently”). For some

kids, though my scornful feelings reach such

fever pitch that I have a hard time even putting

“cooperative in class” and have, sadly, had

some kids for which none of the comments fit.

(Again, this was NOT me. It couldn’t have

been. I was a delight!!)

Thus, for this blog, I will list the comments I’d

like to see added to the canned comment list, as

an accurate reflection of what we really want to

say to these parents. Here they are, in no

particular order:

 Concerned your kid is automaton, as she just

sits there emotionless for an entire 90 minutes,

staring into the abyss, never volunteering to

speak or do anything.

 Seems smarter than she actually is.

 Has a massive chip on her shoulder.

 Too smart for her own good and refuses to play

the school ‘game’ such that she’ll never live up

to her true potential here.

 Has no business being in Honors.

 A complete and utter jerk in all ways. Although

academically ok, your child has no other

redeeming qualities.

 Lazy.

 Shy isn’t cute in 11th grade; it’s annoying.

Must learn to advocate for himself instead of

having Mommy do it.

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 One of the few students I can abide this

semester!

 Two words come to mind: brown AND nose.

 Dunderhead.

 Complainer.

 Gimme an A.I.R.H.E.A.D. What’s that spell?

Your kid!

 There is such a thing as too loud in oral

presentations. We shouldn’t need earplugs.

 Att-i-tude!

 Nowhere near as good as her sibling. Are you

sure they’re related?

 I won’t even remember her name next semester

if I see her in the hall.

 Asked too many questions and took too long to

ask them. The bell means it’s time to leave!

 Has no business being in Academic.

 Rat-like.

 Lazy asshole.

 Just as bad as his sibling. Don’t you know how

to raise kids?

 Sneaking, complaining, jerkoff.

 Frightfully dim.

 Dresses like a street walker.

 Whiny, simpering grade-grubber with an

unrealistically high perception of own ability

level.

 One of the most annoying students I’ve had the

displeasure of being locked in a room with for

an extended time.

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 Rude, belligerent, argumentative fuck.

 Tactless.

 Weirdest kid I’ve ever met.

 Am concerned that your kid is going to come in

one day and open fire on the school. (Wish I

was kidding.)

 I didn’t realize one person could have this many

problems.

 Your daughter is royalty. (The Queen of

Drama)

 Liar and cheater.

 Unable to think for himself.

 I hear the trash company is hiring . . .

 Utterly loathsome in all imaginable ways.

 I called out sick a couple of days just to avoid

your son.

 There’s no other way to say this: I hate your

kid.

These comments, I think, would serve me well

when filling out the cards. Only, I don’t think

parents want to hear these truths.

Thus the old adage ... if you don’t have

anything nice to say ...

... say “cooperative in class.”

(A245-A246.)

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On April 3, 2010, Munroe blogged about all of the

“Things From This Day That Bothered Me.” These “Things”

were almost all work-related:

Things From This Day That Bothered Me

1. The fact that it was 85 degrees in my

classroom because the district insists on

controlling the temperature from central admin

and won’t turn on the AC until May 15th, even

though people are sweltering NOW.

2. The fact that I called home about an

obnoxious kid in class last week before break

and his mom said they told him to “knock it

off” (the obnoxious behavior), yet the FIRST

thing he said to me when he saw me today was,

“Yeah, Ms. M. I give you credit for tryin’ to

ruin my weekend. But the boys rallied up and

had a banger anyway!” Clearly, the talk with

his mom was quite effective.

3. The fact that several students in 3rd block

did a lame job on their easy assignment today.

4. The fact that the jerk who was out 3 days

around our last major assessment because his

family took him on trip to Puerto Rico and then

emailed me all of this nonsense about how he

shouldn’t have to take the test on time because

he was “excused” for those days, was out again

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today (the date of another assessment) because

his family took him to the effing Master’s golf

shit over Easter break. Can someone please tell

me why Thursday-Wednesday wasn’t enough

time off to do what had to be done such that he

could come back today when he KNEW there

was an assessment??? It’s good that people

value school so much—wait, no, they don’t.

5. The new chick who seems to be on or near

my elliptical all the damn time.

(A213.) In this same blog post, Munroe listed “Artists Who

Annoy the Crap Outta Me and Who I Must Turn Off as Soon

as I Hear the Opening Bars to Their Songs, But Who Are

Regarded as ‘Talent’ by Some People” (i.e., Alicia Keys,

Beyonce and Destiny’s Child, and Miley Cyrus) as well as

“Things I Liked About This Day.” (Id.) None of the “Things

I Liked About This Day” were related to her job or her

students. Rather, these “Things” focused mostly on her

daughter.

Discussing recent disciplinary issues and other

problems (for instance, she had to deal with a student and his

mother complaining about a test score), Munroe asked on

October 27, 2009:

Kids! I don’t know what’s wrong with these

kids today! Kids! Who can understand

anything they say? They are disobedient,

disrespectful oafs. Noisy, crazy, sloppy, lazy

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LOAFERS (and while we’re on the subject)

Kids! You can talk and talk till your face is

blue. Kids! But they still do just what they

want to do. Why can’t they be like we were?

(Perfect in every way!!!) What’s the matter

with kids today????? My students are out of

control. They are rude, disengaged, lazy

whiners. They curse, discuss drugs, talk back,

argue for grades, complain about everything,

fancy themselves entitled to whatever they

desire, and are just generally annoying. . . .

(A440.)1

In another blog post dated January 11, 2010, Munroe

explained why she believed that “this new-aged soft-oncrime/

bribery and overindulgence is probably the reason that

kids are so horrible today.” (A249.) According to Munroe,

“teenagers are complete asses” who have no respect for

adults, for authority, or for teachers. (Id.) “Parents won’t

allow anyone but themselves to discipline their kids, but

THEY don’t do any disciplining either.” (Id.) Teenagers

then talk back in school and “think it’s appropriate to try to

go into my desk to retrieve a hackey-sack that was

confiscated during use in class.” (Id.) Comparing how

parents treat their children today with how she was raised,

Munroe complained that parents were “breeding a disgusting

brood of insolent, unappreciative, selfish brats.” (A250.)

1 According to her deposition testimony, Munroe was

quoting a song from Bye Bye Birdie.

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Noting that “it’s paper grading time again,” Munroe observed

in an April 17, 2010 blog post that “these times are getting

worse and worse.” (A416.) “The first semester of this school

year, when I had a parade of whiny, entitled kids run to the

guidance department to tell on me for giving them the low

grades they earned on their shoddy papers, sort of scarred me.

I consider myself very fair with my grading.” (Id.)

There were also blog posts that addressed the concepts

of honor and academic integrity as well as Munroe’s concerns

about student work habits and her negative attitude towards

her job and her students. Munroe blogged (in a March 13,

2010 post) about her frustrating attempt to teach her students

how to write a “Literary Analysis Paper” (describing, for

instance, how, when she met with students to talk about their

thesis statements, “I found that many of them didn’t bother

even attempting to revise their statements, instead coming to

the ‘conference’ expecting me to tell them exactly what the

problem was and how to fix it (and, all the better, to write it

for them if I was willing . . . ),” and how “one boy” said that

he would ask his mother to look at the paper over the

weekend). (A222.) Munroe lamented that “I teach and teach

and teach, but no learning seems to happen.” (A223.) “I

work my ass off to help them achieve success, but the only

one learning how to write a better paper is me. Like I said,

I’m tired of the dance. I just want to sit this one out.” (Id.)

On January 23, 2010, she likewise claimed that, with each

passing day, “I’m coming to, more and more, realize that I

need all the blessings I can get” because “[t]hese kids are the

devil’s spawn.” (A237.) She then discussed in some detail

the importance of honor, how she addressed this concept in

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class (and the often hostile reaction on the part of some

students), and, among other things, the fact that “TWO days

after my lofty speeches, and a single day after they all signed

the [honesty] pledge and pledge wall . . . someone [described

as “‘that girl in the back in pink’”] had consciously made a

cheat sheet and brought it in and intended to cheat.”2 (A240.)

The School District administration first learned of

Munroe’s blog in February 2011 when a reporter from The

Intelligencer (a local newspaper) began to ask questions about

the blog. Specifically, the reporter e-mailed Laws on

February 8, 2011, asking if he was “aware of this blog, which

the students apparently have been circulating on facebook and

through other social media.” (A258.) On February 9, 2011,

Lucabaugh met with Munroe, confronted her with printed

copies of her blog posts, and placed her on immediate paid

suspension. At this point in time, the School District had no

regulation specifically prohibiting a teacher from blogging on

his or her own time (although it appears that a policy was

subsequently adopted by the School District).

In his deposition testimony, Lucabaugh described the

fevered reactions on the part of students and their parents to

Munroe’s blog posts: “Kids were furious. They were livid.

The calls that were coming in from parents, the e-mails that

were coming in, kids had copies of it and they were

distributing it in the halls.” (A397.) The principal

2 Munroe also referred to a co-worker named “Bill” as

“a douche.” (A210.) She similarly claimed that the School

District administration harassed a colleague until he resigned

because it believed he was an ineffective teacher.

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characterized CB East as “like a ticking time bomb” and

asserted that the environment “was so incendiary” that the

administration “thought we’re going to have a riot or a sit-in

or worse.” (A398.) “To say it was a disruption to the

learning environment is an understatement.” (Id.) According

to Lucabaugh, Munroe was escorted from the building for her

own safety.

In what he described as an unprecedented situation,

Lucabaugh began receiving e-mails from parents indicating

that they did not want Munroe to teach their children. He

continued to receive more and more e-mails throughout the

summer, peaking in June and July of 2011. He asked his

superiors: “‘What do I do with this?’ ‘Because I have to

schedule the building and we have to get ready for class and I

can’t not put them in class. So what do I do with this’. I said

– first of all, I have – now I’m talking over seventy-five,

eighty people, ninety people, one hundred people, a hundred

and—and it was growing.” (A399.) It appears undisputed

that the School District ultimately received over 200 “optout”

requests from parents. While he recognized that it was

the school board that had to decide how to handle these

requests, Lucabaugh indicated that Munroe would probably

not “have a chance” to teach in a “toxic environment” if “I

already know that twenty-five students and their parents don’t

want their child in her class and they’re in her class.” (A400.)

Accordingly, the decision was made to hire another teacher

and have her “shadow” Munroe, i.e., teach the same exact

schedule. Munroe claims that, “[i]n August 2011, Defendants

[in retaliation for Munroe’s expression] informed residents of

the School District that they would honor all requests of

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students to ‘opt out’ of Munroe’s classes.” (Appellant’s Brief

at 10 (citing A105-A111).) According to Munroe, the School

District “said it [allowed the opt-outs] in case students were

uncomfortable returning to the classroom of a teacher who

would say such things about them on her private blog.”

(A108.) She did not believe the School District’s justification

because it was unprecedented to allow students to opt out of a

class. The real reason was because “they didn’t want me to

have any students to teach.” (A111.) However, Munroe

acknowledged that the whole situation was probably

unprecedented.

The story was picked up by a widely-read internet

news site, The Huffington Post, in a posting entitled “Natalie

Munroe, Central Bucks Teacher, Suspended for Dissing

Students On Blog.” (A260.) Lucabaugh made a statement to

the media. Munroe herself appeared on ABC, CBS, NBC,

CNN, Fox News, and other television stations. She also gave

interviews to several print news sources, including the

Associated Press, Reuters, Time Magazine, and the

Philadelphia Inquirer.

According to The Huffington Post, “Laws says the

posts should result in termination but the district is still

investigating.” (Id.) In two e-mails, Laws expressed a desire

to terminate Munroe’s employment. In his February 11, 2011

e-mail, he indicated that one of the School District’s

17

“constitutional lawyers” was researching the matter.3 (A262.)

On February 17, 2011, he noted that, “[f]or the legal team, we

still need to confirm a plan for termination.” (A266.) In a

third e-mail dated February 24, 2011, Laws asked if Munroe’s

teaching certificate could be revoked, which “would, in

effect, be a potentially less costly approach and, in effect, net

the same result as a termination.” (A268.)

In any event, Munroe went out on maternity leave,

which had already been scheduled before the blog was

discovered. Her leave ran from March 1, 2011 until the end

of the 2010-2011 school year. On June 15, 2011, Lucabaugh

completed Munroe’s evaluation, concluding that her

performance for the preceding academic term was

unsatisfactory. The evaluation purportedly relied on a

number of different grounds for this negative rating, including

ineffective instructional delivery practices and inappropriate

use of a “nanny cam” during teaching hours. However, it also

observed that, in her blog posts, Munroe demonstrated

“inappropriate or disrespectful interactions between teacher

and students” and a “lack of knowledge of the Professional

Code of Conduct.” (A271-A272.) In particular, it was noted

that Munroe failed to use acceptable and professional

3 Noting that Munroe was scheduled to appear on a

Fox News show (“Justice with Judge Jeanine”), Laws

expressed surprise that people were supporting Munroe: “I

feel like I am in the twilight zone. I can’t believe people

support this woman and her right to ‘say anything.’” (A262.)

In a subsequent e-mail, a school board member stated that

“[a]fter seeing her on the Fox news show I am confident we

are doing the right thing.” (A264.)

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language and that her comments did not reflect sensitivity to

the fundamental human rights of dignity, privacy, and respect.

As a result, students and parents “expressed shock and

outrage that their teacher would write about them in such

derogatory terms and that their identity was not protected by

the details provided in her blog which was placed on the

internet to be accessed by anyone.” (Id.) “Students and

parents stated verbally and in writing that they would not

return to this teacher’s class because of what she had written

in her blog,” and students indicated that they lacked

confidence in this teacher on account of “the breach in the

student-teacher relationship.” (Id.) In the summer of 2011,

Laws submitted an “Educator Misconduct Complaint” to the

Office of Chief Counsel of the Pennsylvania Department of

Education, alleging that Munroe engaged in “[c]onduct

inappropriate for an Educator.” (A277.) The complaint was

dismissed on the grounds of legal insufficiency. In addition,

the School District denied Munroe’s request for a transfer to

another school.

Munroe returned to work in August 2011. The School

District held a media briefing to announce her return. In a

prepared statement, Lucabaugh explained that, “[w]hile her

actions have created an unfortunate and incredibly difficult

situation, Mrs. Munroe maintains employee rights, and that is

the sole reason for her return.” (A285.) According to the

principal of CB East:

Whether or not Mrs. Munroe had the legal right

to express her views with such vitriol is not the

heart of this issue. No one here is contending

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that she can’t say these things ... legally. And

for that reason, she has a legal right to return.

What is at the heart of this issue, however, is the

large-scale disruption her comments created,

and the ensuing damage they have caused the

young men and women to whom she was

alluding. Natalie Munroe’s actions placed the

outstanding work that occurs in our school in

question, placed my leadership in question,

placed our students’ merit in the crosshairs of

national scrutiny, breached trust with the

community, and compromised her professional

integrity. Her comments were unprofessional,

disrespectful, and disturbing, particularly

coming from the heart of an educator.

Moreover, and most importantly, they were

crass and CRUEL.

The obvious question left unanswered as the

school year ended was whether or not Mrs.

Munroe would be returning to teach in the fall.

I should point out here that her maternity leave

ends this month, and regardless of the moral

and ethical issues surrounding her actions, Mrs.

Munroe maintains employment rights.

. . . .

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Despite the fact that Mrs. Munroe retains legal

employment rights, I would hope none of us

lose sight of the real issue.

The real issue is that while something may be

legally right, it may not be ethically or morally

right. There are consequences that occur when

a person chooses to exercise her rights and say

outrageous, disrespectful, vulgar and cruel

things about other people ... especially when it’s

a teacher saying terrible things about the young

men and women who are in her classroom.

As a public school, we are charged with

meeting the needs of every student who enters

our doors, rich or poor, gifted or learning

disabled, troubled or triumphant, and guiding

them to their full potential so they receive the

most precious gift an education can provide:

opportunity for choice in life.

What pains me the most in all of this is how the

statements made by Mrs. Munroe have placed

our students in the line of fire, and caused a

nation to question their collective merit.

(A286-A288.)

Munroe received negative performance evaluations

over the course of the 2011-2012 school year (which, unlike

the evaluation she received at the end of the previous school

21

year, did not expressly reference her blog and its effects), and

she was required to complete detailed lesson plans (which she

claimed were deliberately engineered to be too complicated to

finish accurately). On June 1, 2012, the School District

notified Munroe of its intention to terminate her employment

based on charges of failure to meet requirements set forth in

performance improvement plans, incompetency,

unsatisfactory classroom management, unsatisfactory delivery

of instruction, and unsatisfactory lesson planning. On June

26, 2012, the School District formally terminated her

employment.

Munroe filed this action under 42 U.S.C. § 1983,

alleging that Defendants violated her First Amendment rights.

“Specifically, Munroe claims that the school administration

harassed and eventually terminated her after discovering a

private blog in which Munroe has expressed criticism of the

school, her co-workers, and her students.” Munroe, 34 F.

Supp. 3d at 533. The parties completed discovery, and

Defendants moved for summary judgment. In a July 25, 2014

order, the District Court granted their motion and entered

summary judgment in favor of Defendants and against

Munroe.

In its opinion, the District Court ultimately concluded

that Defendants did not violate Munroe’s constitutional right

to free expression. “Because this Court has determined as a

matter of law that Plaintiff’s comments do not merit

protection under the balancing test established by [Pickering

v. Board of Education, 391 U.S. 563 (1968)],” it believed it

was unnecessary to reach the question of whether this speech

22

directly caused her termination. Munroe, 34 F. Supp. 3d at

540-41. While it recognized that freedom of speech

constitutes an indispensable condition of nearly every other

right or liberty, see Palko v. Connecticut, 302 U.S. 319, 327

(1937) (characterizing freedom of thought and speech as “the

matrix, the indispensable condition, of nearly every other

form of freedom”), overruled on other grounds, Benton v.

Maryland, 395 U.S. 784 (1969), the District Court pointed out

that education “is one of the most heavily protected interests

in modern American jurisprudence,” Munroe, 34 F. Supp. 3d

at 541 (citing Brown v. Bd. of Educ., 347 U.S. 483, 493

(1954)). “In this case, Plaintiff’s speech, in both effect and

tone, was sufficiently disruptive so as to diminish any

legitimate interest in its expression, and thus her expression

was not protected.” Id.

II.

“[A] State may not discharge an employee on a basis

that infringes that employee’s constitutionally protected

23

interest in freedom of speech.”4 Rankin v. McPherson, 483

U.S. 378, 383 (1987). Free and unhindered debate on matters

of public importance constitutes a core value of the First

Amendment. See, e.g., Pickering, 391 U.S. at 573.

Accordingly, public employees do not surrender all of their

First Amendment rights merely because of their employment

status. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 417

(2006).

Nevertheless, “the State has interests as an employer in

regulating the speech of its employees that differ significantly

from those it possesses in connection with regulation of the

speech of the citizenry in general.” Pickering, 391 U.S. at

568. In short, “the government as employer” possesses “far

4 The District Court possessed subject matter

jurisdiction pursuant to 28 U.S.C. § 1331. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291 and exercise

plenary review over a district court order granting a motion

for summary judgment, see, e.g., Monaco v. Am. Gen.

Assurance Co., 359 F.3d 296, 299 (3d Cir. 2004). Summary

judgment is appropriate where “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. P. 56(a). The facts must be

viewed in the light most favorable to the non-moving party.

See, e.g., Hugh v. Butler Cnty. Family YMCA, 418 F.3d 265,

267 (3d Cir. 2005).

We note that the Pennsylvania School Boards

Association (“PSBA”) has filed an amicus brief in support of

Defendants.

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broader powers than does the government as sovereign.”

Waters v. Churchill, 511 U.S. 661, 671 (1994) (plurality

opinion). “When a citizen enters government service, the

citizen by necessity must accept certain limitations on his or

her freedom.” Garcetti, 547 U.S. at 418. Government

employers, like their private counterparts, still “need a

significant degree of control over their employees’ words and

actions; without it, there would be little chance for the

efficient provision of public services.” Id.. As we explained

in Miller v. Clinton County, 544 F.3d 542 (3d Cir. 2008),

“public employers are still employers, and they therefore have

the same concern for efficiency and the need to review and

evaluate employees as any other employer in order to ensure

that the actions of employees do not interfere with the

performance of public functions,” id. at 547; see also, e.g.,

Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 987

(3d Cir. 2014) (“At the same time, the Supreme Court also

aptly recognizes the government’s countervailing interest—as

an employer—in maintaining control over their employees’

words and actions for the proper performance of the

workplace.”). A public employer accordingly may impose

speech restrictions that are necessary for efficient and

effective operations. See, e.g., Dougherty, 772 F.3d at 987

(“Thus, ‘[s]o long as employees are speaking as citizens

about matters of public concern, they must face only those

speech restrictions that are necessary for their employers to

operate efficiently and effectively. [Garcetti, 547 U.S. at

419].”).

“To establish a First Amendment retaliation claim, a

public employee must show that (1) his speech is protected by

the First Amendment and (2) the speech was a substantial or

25

motivating factor in the alleged retaliatory action, which, if

both are proved, shifts the burden to the employer to prove

that (3) the same action would have been taken even if the

speech had not occurred.” Id. at 986. In order for his or her

speech to rise to the level of constitutionally protected

expression, the employee must speak as a citizen (and not as

an employee), “the speech must involve a matter of public

concern,” and “the government must lack an ‘adequate

justification’ for treating the employee differently than the

general public based on its needs as an employer under the

Pickering balancing test.” Id. at 987 (quoting Gorum v.

Sessoms, 561 F.3d 179, 185 (3d Cir. 2009)). The Pickering

balancing test requires the courts to “‘balance . . . the interests

of the [employee], as a citizen, in commenting upon matters

of public concern and the interest of the State, as an

employer, in promoting the efficiency of the public services it

performs through its employees.’” Id. at 991 (quoting

Pickering, 391 U.S. at 568). We must also consider, on the

employee’s side, the interest of the public in the speech at

issue. Id. The question of whether or not speech is protected

by the First Amendment constitutes a question of law. See,

e.g., Miller, 544 F.3d at 548; Hill v. Borough of Kutztown,

455 F.3d 225, 241 (3d Cir. 2006).

Defendants ask this Court to affirm the District Court’s

order on four different grounds: (1) Munroe’s speech, in light

of its content, form, and context, did not implicate a matter of

public concern; (2) her speech was likely to cause—and, in

fact, did cause—disruption “to the rendering of educational

services by the District,” and the Pickering balancing test

accordingly “weighed in favor of Defendants and would not

26

have prevented them from taking adverse action against

Plaintiff based upon her speech” (Appellees’ Brief at 22); (3)

Munroe’s speech did not constitute a substantial factor in the

various negative performance evaluations she received or in

her eventual termination; and (4) the School District would

have pursued the same course of action even in the absence

of any protected activity. We assume that Munroe’s speech

satisfied the “public concern” requirement. However, we

conclude that her speech was likely to cause—and, in fact,

did cause—disruption and that, under the circumstances, the

School District’s interest outweighed Munroe’s interest, as

well as the interest of the public, in her speech. Because her

speech was not constitutionally protected, we (like the

District Court) need not, and do not, reach Defendants’

causation arguments.

A. The “Public Concern” Requirement

The Supreme Court has explained that speech

implicates a matter of public concern when “it can ‘be fairly

considered as relating to any matter of political, social or

other concern to the community,’ [Connick v. Myers, 461

U.S. 138, 146 (1983)], or when ‘it is a subject of legitimate

news interest; that is, a subject of general interest and of value

and concern to the public,’ [City of San Diego v. Roe, 543

U.S. 77, 83-84 (2004) (per curiam)].” Snyder v. Phelps, 562

U.S. 443, 453 (2011). Defendants acknowledge that,

“[b]ecause of the nature of their employment, speech by

public employees is deemed to be speech about public

concern when it relates to their employment” so long as it is

not speech upon matters of purely personal interest.

27

(Appellees’ Brief at 30.) Accordingly, speech that relates

solely to mundane employment grievances does not implicate

a matter of public concern. See, e.g., Sanguigni v. Pittsburgh

Bd. of Pub. Educ., 968 F.2d 393, 399 (3d Cir. 1992). In

determining whether the speech at issue satisfies this element,

courts should take into account the employee’s motivation as

well as whether it is important to our system of selfgovernment

that the expression take place. See, e.g., Azzaro

v. Cnty. of Allegheny, 110 F.3d 968, 978 (3d Cir. 1997) (en

banc); Versage v. Twp. of Clinton, 984 F.2d 1359, 1364-65

(3d Cir. 1993). “The arguably ‘inappropriate or controversial

character of a statement is irrelevant to the question whether

it deals with a matter of public concern.’” Snyder, 562 U.S.

at 453 (quoting Rankin, 483 U.S. at 387).

“Whether an employee’s speech addresses a matter of

public concern must be determined by the content, form, and

context of a given statement, as revealed by the whole

record.” Connick, 461 U.S. at 147-48. In Miller, we

considered whether a letter written by an adult probation

officer to the president judge of the county court of common

pleas rose to the level of constitutionally protected speech.

Miller, 544 F.3d at 546-51. We acknowledged that Miller’s

statements that the county probation office was being run

ineffectively and that her supervisors called probation clients

“scum” clearly referred to matters of public concern. Id. at

549. However, the Court then explained that her statements

must be viewed in the context of the letter as a whole. Id. at

550. “We can not ‘cherry pick’ something that may impact

the public while ignoring the manner and context in which

that statement was made or that public concern expressed.

28

Our inquiry must also consider the form and circumstance of

the speech in question.” Id. The letter focused on Miller’s

private grievances as an employee, and the statements about

the office’s ineffective operations and the supervisor’s

comments were collateral to the thrust of her complaint. Id.

She clearly stated her reason for writing, i.e., that she would

no longer work under the stressful conditions she had to face

since an individual named Foresman became her supervisor.

Id. “That declaration provides the context for all that

follows.” Id. In short, “Miller was upset with Foresman’s

supervision of her, and could no longer tolerate being

supervised by her,” and, given this context, “the brief

references to an issue of public concern” could not be read as

anything other than “a multi-faceted personal ‘gripe’ not

unlike that voiced in [a questionnaire addressed by the

Supreme Court in [Connick v. Myers, 461 U.S. 138

(1983)].”5 Id. The personal context of the letter, in addition

5 In Connick, an assistant district attorney, who

opposed the district attorney’s plan to transfer her to another

district, distributed a questionnaire to her co-workers

regarding this transfer policy, their level of trust in

supervisors, office morale, the establishment of a grievance

committee, and whether they were pressured into working on

political campaigns. See Miller, 544 F.3d at 548-49

(summarizing Connick). As we explained in Miller, the

Supreme Court, “after viewing the statement [about pressure

to work on political campaigns] in context and considering

the circumstances in which she circulated [the

questionnaire],” concluded that this “one expression of public

concern did not outweigh the District Attorney’s interest in

29

to the tangential relationship between the issues of public

concern and the letter’s overall thrust, “so minimizes any

public concern in the subject of her expression as to tip the

First Amendment balance in favor of her employer.” Id. at

551. We further noted that the letter harshly criticized

Miller’s supervisors, seemingly offered President Judge

Saxton an ultimatum, and was disrespectful to the president

judge himself. Id.

In the end, we stated that Miller, by “launching into an

attack on management and her supervisors,” managed to

“brush ever so gently” against a matter of public concern. Id.

However, “that seemingly serendipitous encounter does not

convert her personal grievance into protected speech.” Id.

According to Defendants, the District Court likewise

determined that Munroe’s speech failed to implicate a matter

of public concern. On the one hand, the District Court stated

that, “although the blog as a whole is dominated by personal

issues, within certain blog posts are occasional passages that

touch upon broad issues of academic integrity, the value of

honor, and students’ lack of effort.” Munroe, 34 F. Supp. 3d

at 537 (footnotes omitted). According to the District Court,

each topic represented a matter of political and social

concern, despite Munroe’s use of strong language. On the

other hand, the District Court proceeded to point out that

“context matters” and to quote from our ruling in Miller. Id.

the efficient operation of his office because the questionnaire

as a whole was of such limited value to the public.” Id. at

549 (citing Connick, 461 U.S. at 154).

30

It then observed that, on the few occasions where Munroe

addressed issues of public concern on her blog, she did so in

order to discuss personal matters. “Far from implicating

larger discussions of educational reform, pedagogical

methods, or specific school policies, Plaintiff mostly

complained about the failure of her students to live up to her

expectations, and focused on negative interactions between

herself and her students.” Id. at 537-38. The District Court

specifically focused on the January 20, 2010 blog post. In

this post, Munroe began by noting that she was blogging at

work and then explained that she was entering grades and

comments for the students’ report cards, which she used to

take very seriously. Instead of engaging in “any number of

important discussions (such as the value of the grading

system, her personal opinion on the effectiveness of assigning

grades, etc.) that might have touched upon issues of public

concern,” Munroe stated that her scorn for some students was

so extreme that she found it difficult even to indicate that they

cooperated in class and that, for some students, none of the

comments fit. Id. at 538.

We believe that the District Court ultimately disposed

of Munroe’s retaliation claim on the basis of the Pickering

balancing test. Accordingly, it went on to observe that, even

though she “may have occasionally written as a private

citizen on matters of public concern,” Munroe’s “opprobrious

tone” was likely to cause a strong reaction from anyone

connected with her high school. Id. After “balancing the

interests of the parties,” id., the District Court reached the

conclusion that “Plaintiff’s speech, in both effect and tone,

was sufficiently disruptive so as to diminish any legitimate

31

interest in its expression, and thus her expression was not

protected,” id. at 541; see also, e.g., id. at 540-41 (“Because

this Court has determined as a matter of law that Plaintiff’s

comments do not merit protection under the balancing test

established by Pickering, . . . .”). Under the circumstances,

the District Court’s discussion of the “public concern”

concept are best understood as part of its application of the

Pickering balancing test. In short, it appears that the District

Court, in balancing the respective interests, accorded minimal

weight to the interests of Munroe and the public in her speech

because “the blog’s ‘overall thrust’ devalues the discussion of

public issues.” Id. at 538 (quoting Miller, 544 F.3d at 550).

Of course, this Court may affirm on any ground

supported by the record. See, e.g., Fairview Twp. v. U.S.

EPA, 773 F.2d 517, 525 n.15 (3d Cir. 1985). Defendants

present a strong case for why Munroe’s speech failed to touch

on a matter of public concern. While Munroe contends that

her blog was “replete with references to her life’s experience

as an English teacher in an affluent, suburban Philadelphia

School District” (Appellant’s Brief at 23), she also

acknowledges that this blog was intended as a vehicle to keep

in touch with friends (and accordingly was never meant to be

viewed by the public at large) and that she discussed such

mundane topics as her favorite restaurants and family

vacations. She admits that most of the “84 blog entries”

published between August 9, 2009 and November 25, 2010

had “nothing to do with her school or work.” (Id. at 6 (citing

A208-A254, A412-A452).) According to Munroe, it is

illogical for us to review each and every one of her blog

posts. We clearly should take into account the fact that it was

32

not her blog posts on mundane topics like pie recipes and

movie reviews that “went viral” once the media discovered

her blog. Defendants themselves focused on Munroe’s

student-related blog posts (to the point of distributing

“[c]opies of Mrs. Munroe’s blog pertaining to students” at a

media briefing (A286)).6 However, it is also well established

that (as we explained in Miller) the courts “can not ‘cherry

pick’ something that may impact the public while ignoring

the manner and context in which that statement was made or

that public concern expressed.” Miller, 544 F.3d at 550.

Defendants (rather persuasively) contend that “a plain reading

of Plaintiff’s blog readily reveals that she was actually using

it to vent personal grievances or express her visceral reaction

to her daily experiences.” (Appellees’ Brief at 32.) For

instance, her April 3, 2010 blog post featured a list of “Things

From This Day That Bothered Me,” which were almost all

work-related. (A213.) However, this list appeared in the

middle of a post that included lists of “Artists Who Annoy the

Crap Outta Me and Who I Must Turn Off as Soon as I Hear

the Opening Bars to Their Songs, But Who Are Regarded as

‘Talent’ by Some People” and “Things I Liked About This

Day” (none of which involved her work as a public school

teacher). (Id.) Even the January 20, 2010 blog post—in

which Munroe offered several comments she would like to

see added to the “canned” comment list used for students’

report cards—was phrased in rather personal terms. She

noted, for example, that the grading process was “a complete

6 At oral argument, counsel for Munroe suggested that

only one blog post actually “went viral,” the January 20, 2010

post setting forth her suggested report card comments.

33

pain in the ass” and that her “scornful feelings” about certain

students “reach such fever pitch” that it was difficult for her

to put down “‘cooperative in class.’” (A245.) In the end,

Munroe’s various comments about her students arguably were

no different than, inter alia, her restaurant critique.

Nevertheless, we reluctantly assume for the purposes

of this opinion that Munroe’s speech satisfied the “public

concern” requirement.

As the District Court recognized, there were, at the

very least, occasional blog posts that touched on broader

issues like academic integrity, honor, and the importance of

hard work. In particular, Munroe explained in some detail

how she attempted to address the concept of honor in class

and the often hostile reaction on the part of her students to her

efforts (with one student possibly creating a cheat sheet only

“TWO days after my lofty speeches, and a single day after

they all signed the pledge and pledge wall” (A240)). In the

critical January 20, 2010 blog post, she addressed some

problems she saw with the grading process, specifically

highlighting her past efforts to choose the right combination

of positive and negative comments for the report cards and

indicating that the “canned comments” did not accurately

reflect her assessment of students’ performance. (A245.)

The list of suggested comments then were a rather clumsy

attempt to use humor to highlight her points. Although the

District Court criticized Munroe for failing to bolster her

“personal invective” with “larger discussions of educational

reform, pedagogical methods, or specific school policies,”

Munroe, 34 F. Supp. 3d at 537-38, it also recognized that the

34

inappropriate or controversial nature of a statement is

irrelevant to the “public concern” inquiry, see, e.g., Snyder,

562 U.S. at 453. After all, humor, satire, and even “personal

invective” could be used in order to make or embellish a point

about a matter of political, social or other concern to the

community, such as a school district’s grading policies and

practices. Munroe’s inclusion of her list of proposed report

card comments in a post critiquing the school district’s

grading process likewise indicated that this blog post

ultimately involved more than a purely personal gripe against

her students or the administration. In contrast, Miller’s letter

set forth what was essentially a personal gripe against

management and her supervisors. See Miller, 544 F.3d at

550-51.

Munroe’s blog posts also became the subject of

extensive media coverage, and Munroe gave several

interviews to national news organizations wherein she

“defended her blog entries, refused to apologize for her

opinions, and attempted to focus attention on the ‘Education

Debate.’” (Appellant’s Brief at 8 (citing A114-A115).) We

note that Munroe acknowledged that these interviews were

driven largely by her desire to defend herself and her actions,

and we also are troubled by the fact that the record and

briefing contains essentially no evidence regarding the

content of these interviews besides Munroe’s general

35

characterization of them.7 In any event, the extensive media

coverage of her blog and the statements she made to the

media generally indicated that Munroe met the “public

concern” element.8 See Snyder, 562 U.S. at 543 (stating that

7 Like Munroe herself, neither Defendants nor the

District Court have devoted much attention to the subsequent

media coverage. In a footnote, the District Court stated that it

focused on the blog posts because the record was clear that

Defendants’ actions were based on the posts, and it indicated

that its analysis would not change upon consideration of the

interviews. The dissent relies heavily on Munroe’s

statements to the media in arguing that the case should be

remanded. We note, however, that the evidence cited by the

dissent is limited to arguments and characterizations sprinkled

in the briefs. We have no doubt that Munroe gave interviews

to the media, but the record is devoid of any actual evidence

as to the content of those interviews, rendering it impossible

to assess her interest in the actual speech and the effect such

speech might have had on the School District. The evidence

cited by the dissent regarding the content or tone of her media

interviews rests primarily on a news article that is not part of

the record.

8 We also question whether the media and the public

were (as Munroe claims) really interested in her thoughts

about the so-called “education debate.” We wonder whether

they were interested instead in the fact that a teacher would

post derogatory comments about her students on her blog and

whether public school teachers can (and should) make such

comments.

36

speech implicates matter of public concern when it is subject

of legitimate news interest).

As part of their discussion of the Pickering balancing

test, Defendants rely on the Second Circuit’s opinion in

Melzer v. Board of Education, 336 F.3d 185 (2d Cir. 2003),

and the ruling by the Seventh Circuit in Craig v. Rich

Township High School District 227, 736 F.3d 1110 (7th Cir.

2013), cert. denied, 134 S. Ct. 2300 (2014). Both circuit

courts ultimately rejected retaliation claims—filed by

educators who alleged that they were terminated for

exercising their First Amendment rights—pursuant to

Pickering. Craig, 736 F.3d at 1118-21; Melzer, 336 F.3d at

197-200. Nevertheless, the Second Circuit also assumed that

a teacher’s First Amendment activity satisfied the “public

concern” element, Melzer, 336 F.3d at 196, and the Seventh

Circuit expressly determined that a guidance counselor’s

speech implicated a matter of public concern, Craig, 736 F.3d

at 1116-18.

In Melzer, a Bronx High School of Science teacher

claimed that his constitutional rights to freedom of

association and speech were violated when the board of

education terminated his teaching position “in retaliation for

his membership in the North American Man/Boy Love

Association (NAMBLA or Association).” Melzer, 336 F.3d

at 188-89. The Second Circuit assumed arguendo that “his

activity centers on a matter of public concern, and is thus

protected.” Id. at 196. The Melzer court indicated that, “even

if we were somehow to parse Melzer’s activity into the public

concern test, most of it would likely pass.” Id. In short,

37

NABMLA’s stated goal is to effect change in public attitudes

and laws regarding the age of consent, and advocacy in

support of such a goal “is certainly a matter of public

concern, regardless of the underlying subject matter.” Id.

The plaintiff in Craig “self-published a short book of

adult relationship advice entitled ‘It’s Her Fault.’” Craig, 736

F.3d at 1113. “And when we say ‘adult,’ we mean it in every

sense of the word—in his book, Craig repeatedly discusses

sexually provocative themes and uses sexually explicit

terminology.” Id. The Seventh Circuit agreed with Craig that

his work dealt with a subject of general interest to the public

(and that the district court erred by concluding otherwise). Id.

at 1115-18. While the district court was correct that some

parts of “It’s Her Fault” (like Craig’s description of his own

sexual exploits) would not relate to a matter of public interest

if viewed in isolation, it was wrong to conclude “that just

because the book happened to touch[ ] on a matter of public

interest (relationships between men and women) does not

mean that it addresses a matter of public concern.’” Id. at

1117. According to the Craig court, “[t]hat is precisely what

public concern means—speech directed to the public need

only address a ‘matter[ ] in which the public might be

interested’ in order to be eligible for First Amendment

protection.” Id. “Viewed as a whole, ‘It’s Her Fault’

addresses adult relationship dynamics, a subject that interests

a significant segment of the public. The proliferation of

advice columns dealing with precisely this topic is a

testament to its newsworthiness.” Id..

38

Although we assume that Munroe’s speech implicated

a matter of public concern, this does not mean that her speech

constituted speech protected by the First Amendment. We

conclude (like the Second and Seventh Circuits) that, even if

Munroe’s speech was a matter of public concern, it was not

constitutionally protected because the Pickering balancing

test weighed in favor of Defendants.

B. Pickering Balancing Test

“On the employee’s side of the scale, we must

consider the interests of both [Munroe] and the public in the

speech at issue.” Dougherty, 772 F.3d at 991. On the other

side of the Pickering balancing test, the Court must address

“the government’s legitimate and countervailing interest, as

an employer, in ‘promoting workplace efficiency and

avoiding workplace disruption.’” Id. (quoting McGreevy v.

Stroup, 413 F.3d 359, 363 (3d Cir. 2005)). The government

need not show the existence of actual disruption if it

establishes that disruption is likely to occur because of the

speech. See, e.g., id. at 992 & n.7. While the inquiry varies

given the nature of the speech at issue, courts typically

consider whether the speech impairs discipline or employee

harmony, has a detrimental impact on close working

relationships requiring personal loyalty and confidence,

impedes the performance of the speaker’s duties, or interferes

with the enterprise’s regular operations. See, e.g., id. at 991.

“The balancing we must undertake is a fact-intensive inquiry

that requires consideration of the entire record, and must yield

different results depending on the relative strengths of the

issue of public concern and the employer’s interest.” Miller,

39

544 F.3d at 548. In short, the inquiry “involves a sliding

scale,” in which “the amount of disruption a public employer

has to tolerate is directly proportional to the importance of the

disputed speech to the public.” Id. at 549 n.2; see also, e.g.,

Dougherty, 772 F.3d at 991 (“The more tightly the First

Amendment embraces the employee’s speech, the more

vigorous a showing of disruption must be made by the

employer.”).

We begin with Munroe’s alleged interest and the

alleged interest of the public in her blog posts and subsequent

statements to the media. According to Munroe, the District

Court was so preoccupied with her personal complaints (and

the manner in which she chose to express herself) that it

accorded little if any weight to these interests. Munroe

contends that “the public was highly interested in a public

school teacher’s thoughts about the education debate,” and

her “blog, likely because of the strong language used by her,

percolated a national conversation about the performance and

expectations of students in an affluent, suburban public high

school.” (Appellant’s Brief at 26.) Given our reluctance to

assume that the speech at issue here implicated a matter of

public concern in the first place, we determine that the

interests of Munroe and the public in this speech were entitled

to (at best) only minimal weight under the Pickering

balancing test.

In Dougherty v. School District of Philadelphia, 772

F.3d 979 (3d Cir. 2014), this Court recently applied the

Pickering balancing test in favor of an individual who was

fired from his position as “the Deputy Chief Business Officer

40

for Operations and Acting Chief of Operations for the Office

of the Deputy Superintendent within the School District of

Philadelphia” after he publicly disclosed the alleged

misconduct of the school district superintendent in steering a

contract, id. at 982-83. According to Munroe, the

Philadelphia School District attempted to devalue the

constitutional merit of a teacher’s expression on the grounds

that his statements were focused on personal concerns about

his employment—an attempt this Court rejected. She claims

that the District Court similarly erred here in devaluing her

speech. However, she actually quotes from the section of the

Dougherty opinion addressing the distinct question of

whether Dougherty was speaking as a citizen. Id. at 987-90.

While it is undisputed that Munroe was speaking here as a

private citizen, it was, in turn, uncontested that Dougherty’s

speech involved a matter of public concern. Id. at 987.

Furthermore, Dougherty was not a teacher; he instead served

as a business and operations manager for a school district

responsible for, among other things, developing capital

projects and soliciting bids for these projects. Id. at 982-83.

The issue addressed in Dougherty and the facts presented

therefore are readily distinguishable.

We further explained that “‘[s]peech involving

government impropriety occupies the highest rung of First

Amendment protection.’” Id. at 991 (quoting Swineford v.

Snyder Cnty., 15 F.3d 1258, 1274 (3d Cir. 1994)). Noting

that Dougherty’s report to The Philadelphia Inquirer exposing

the superintendent’s alleged misconduct constituted an

archetypical example of this sort of expression, the Court

observed that the defendants had to satisfy a truly heavy

41

burden “[a]gainst the public’s significant interest in

Dougherty’s act of whistleblowing” (a burden that they did

not meet). Id.; see also, e.g., id. at 987 n.5 (“As we have long

recognized, ‘[d]isclosing corruption, fraud, and illegality in a

government agency is a matter of significant public

concern.’” (quoting Feldman v. Phila. Hous. Auth., 43 F.3d

823, 829 (3d Cir. 1994))). Munroe does not claim that she

exposed any corruption, fraud, or other forms of illegal

conduct on the part of Defendants (or anyone else). If

anything, her blog more closely resembled “It’s Her Fault”—

the work of adult relationship advice at issue in Craig—as

opposed to the acts of whistleblowing considered in

Dougherty. While it determined that this book touched on a

matter of public concern, the Seventh Circuit went on to

explain (as part of its Pickering analysis) that a guidance

counselor’s “view of relationships is not the sort of topic of

expression that Defendants would require a compelling

reason to restrict.” Craig, 736 F.3d at 1120.

Given our assessment of the interests of Munroe and

the public in her speech, Defendants were not required to

make an especially vigorous showing of actual or potential

disruption in this case. However, even if we were to assume

arguendo that her speech “possesses the highest value,”

Melzer, 336 F.3d at 198, we would still conclude that

Defendants met their burden. Simply put, “Plaintiff’s speech,

in both effect and tone, was sufficiently disruptive so as to

diminish any legitimate interest in its expression, and thus her

expression was not protected.” Munroe, 34 F. Supp. 3d at

541.

42

Munroe attacks the District Court for focusing on the

opprobrious tone of her blog posts and suggesting that her

expression would be afforded greater protection if she

engaged in a more lofty discussion of educational issues.

Claiming that “[i]t is essential to remember that ‘. . . the very

core of the First Amendment is that the government cannot

regulate speech ‘because of its message, its ideas, its subject

matter, or its content,’” she contends that the District Court’s

content-based approach “has no place in the Pickering test.”

(Appellant’s Brief at 24 (quoting Startzell v. City of Phila.,

533 F.3d 183, 192 (3d Cir. 2008)).) However, the opinion

she cites did not involve a retaliation claim against a public

employer. See Startzell, 533 F.3d at 188 (“The parties to the

events surrounding the October 2004 OutFest [a street

festival] have differing, indeed contrary, views of the

protection that the First Amendment affords to organizers of

events that generate counter-protests and the rights of those

counter-protestors.”). It is well established that a government

has broader powers to regulate speech when it acts as an

employer than when it acts as a sovereign. See, e.g., Waters,

511 U.S. at 671 (plurality opinion); Pickering, 391 U.S. at

568. Accordingly, in order for his or her speech to be

protected by the First Amendment, the employee must speak

as a citizen, the speech must implicate a matter of public

concern, and, of particular significance here, “the government

must lack an ‘adequate justification’ for treating the employee

differently than the general public based on its needs as an

employer under the Pickering balancing test.” Dougherty,

772 F.3d at 987. While the inappropriate tone of the speech

may be irrelevant to the “public concern” inquiry, see, e.g.,

Snyder, 562 U.S. at 453, such considerations could play a

43

critical role in ascertaining the existence and likelihood of

disruption. After all, it would seem more likely that an

employee’s comments about his or her supervisors and coworkers

would impair discipline or employee harmony if they

are phrased in less “elevated”—and more “opprobrious”—

terms. Likewise, invective directed against the very persons

that the governmental agency is meant to serve could be

expected to have serious consequences for the performance of

the speaker’s duties and the agency’s regular operations. The

First Amendment, for instance, does not require a public

employer “to sit idly by” while its police officers and

firefighters make racial insults against “those they are hired to

serve and protect.” Locurto v. Giuliani, 447 F.3d 159, 183

(2d Cir. 2006); see also, e.g., Pickering, 391 U.S. at 569-70

(“The statements are in no way directed towards any person

with whom appellant would normally be in contact in the

course of his daily work as a teacher.”); Craig, 736 F.3d at

1119 (“An employer may have more leeway in restricting the

speech of an employee whose position requires contact with

the public.”).

Similarly, we believe it was appropriate for the District

Court to consider whether Munroe’s speech “would erode the

necessary trust and respect between Munroe and her

students.” Munroe, 34 F. Supp. 3d at 539. Munroe views

such considerations as nothing more than “code” for

punishing unpopular speech, and she contends that they

would allow a school district to fire a teacher on the grounds

of political affiliation, religion, or grading policies, thereby

making a mockery out of the First Amendment itself. (Id. at

27.) She even goes so far as to claim that “[h]igh school

44

students are not required to trust or respect their teachers.”

(Id. at 27-28.) In Pickering itself, the Supreme Court

indicated that it was appropriate to consider whether a

teacher’s expression “either impeded the teacher’s proper

performance of his daily duties in the classroom” or

“interfered with the regular operation of the schools

generally.”9 Pickering, 391 U.S. at 572-73 (footnote

omitted). As the District Court noted, the job of a public

school educator implicates a rather special set of

circumstances and responsibilities. “Plaintiff worked in a

school, where students ‘are impressionable and their

attendance is involuntary.’” Munroe, 34 F. Supp. 3d at 539

(quoting Edwards v. Aguillard, 482 U.S. 578, 584 (1987)).

One generally expects that a teacher would: (1) refrain from

expressing outright hostility and disgust against them on her

blog (at least where the blog itself was not protected by a

password and evidently could be (and, in this case, was)

discovered by the media and members of the school

community); (2) when confronted with her derogatory

9 The Pickering Court determined that a letter a teacher

sent to a local newspaper criticizing the school board’s

handling of bond issue proposals and its subsequent

allocation of financial resources and charging the

superintendent with attempting to prevent teachers from

opposing or criticizing the proposed bond issue constituted

protected speech because, even if he made some erroneous

statements, it could neither be shown nor presumed that his

letter impeded the performance of his daily classroom duties

or interfered with the regular operation of the school.

Pickering, 391 U.S. at 572-73.

45

comments, publicly defended what she had said; and (3) in

the process, singled out specific and identifiable students as

the targets of her ire. As the PSBA helpfully notes in its

amicus brief, the Pennsylvania Code of Professional Practice

and Conduct for Educators states, inter alia, that professional

educators are expected to value “the worth and dignity of

every person, student and colleague alike,” 22 Pa. Code §

235.3, and to exercise care in maintaining confidentiality, 22

Pa. Code § 235.4(b)(9).

“The position of public school teacher ‘requires a

degree of public trust not found in many other positions of

public employment.’” Munroe, 34 F. Supp. 3d at 539

(quoting Melzer, 336 F.3d at 198). A teacher generally acts

in loco parentis for his or her students. Melzer, 336 F.3d at

199; see also Craig, 736 F.3d at 1119 (“The fact that Craig

works closely with students at a public school as a counselor

confers upon him an inordinate amount of trust and

authority.” (citing Edwards, 482 U.S. at 584; Melzer, 336

F.3d at 198)). Like the Second Circuit, “[w]e acknowledge

the truism that community reaction cannot dictate whether an

employee’s constitutional rights are protected.” Melzer, 336

F.3d at 199. The First Amendment generally does not permit

the so-called “heckler’s veto,” i.e., “allowing the public, with

the government’s help, to shout down unpopular ideas that

stir anger.” Id.; see also Craig, 736 F.3d at 1121 (referring to

“heckler’s veto” in which unpopular speech is prohibited on

account of community’s possible reaction). However, there

is a special (perhaps even unique) relationship that exists

between a public school teacher (or other educators, like a

guidance counselor), on the one hand, and his or her students

46

and their parents, on the other hand. Simply put, neither

parents nor students could be considered as outsiders seeking

to “heckle” an educator into silence—“‘rather they are

participants in public education, without whose cooperation

public education as a practical matter cannot function.’”

Craig, 736 F.3d at 1121 (quoting Melzer, 336 F.3d at 199).

We accordingly agree with the Second and Seventh Circuits

that it is generally appropriate to consider the reactions of

students and parents to an educator’s speech under the

Pickering balancing test.10 Id. (“Given the nature of this case,

10 We further note that this case does not involve an

attempt to fire a teacher because of student and parent

reactions to his or her political affiliation or religion.

47

we think it appropriate to consider Defendants’ interests in

preserving a safe counseling environment at Rich Central as

Munroe suggests that the effects of her speech on the

trust and respect of her students should not be considered

because this Court’s ruling in Dougherty did not identify such

effects as a factor to be taken into account under the Pickering

balancing test. We have already noted that Dougherty was

not a teacher—he was a business and operations officer.

Dougherty, 772 F.3d at 982-83. We also observed in

Dougherty that “the test for disruption varies depending upon

the nature of the speech” and that the “factors a court

typically considers” include whether the speech impedes the

performance of the speaker’s duties or interferes with the

regular operations of the enterprise. Id. at 991; see also, e.g.,

Pickering, 391 U.S. at 572-73 (asking whether speech

impeded teacher’s proper performance of daily duties in

classroom or interfered with regular operation of the schools

generally). Furthermore, we agree with Munroe that her

relationship with Defendants was not the kind of relationship

that required personal loyalty or confidence. See, e.g.

Dougherty, 772 F.3d at 992 (“[B]ased on the District Court’s

reading of the record, the evidence does not compel the

conclusion that Dougherty’s relationship with Dr. Ackerman

[the superintendent] or Dr. Nunery [the deputy

superintendent] is ‘the kind of relationship[ ] for which it can

persuasively be claimed that personal loyalty and confidence

are necessary to [its] proper functioning.’” (quoting

Pickering, 391 U.S. at 570)). However, a defendant need not

establish the existence of such a relationship to prevail under

Pickering.

48

part of our analysis.”); Melzer, 336 F.3d at 199 (“Any

disruption created by parents can be fairly characterized as

internal disruption to the operation of the school, a factor

which may be accounted for in the balancing test and which

may outweigh a public employee’s rights.”).

We find that Munroe’s various expressions of hostility

and disgust against her students would disrupt her duties as a

high school teacher and the functioning of the School District.

Munroe, for her part, does not really deal with the specific

language she used in her blog posts. Instead, she tends to

describe her student-related comments in rather general

terms, e.g., she purportedly made comments about her

students’ unwillingness to work hard and cooperate in school,

the lack of student accountability, and the lack of support for

teachers on the part of both parents and administrators.

However, Munroe’s list of “proposed report card comments”

(Appellant’s Brief at 25) included statements like—“A

complete and utter jerk in all ways,” “Rat-like,” “Lazy

asshole,” “Sneaky, complaining, jerkoff,” “Dresses like a

street walker,” “Rude, belligerent, argumentative fuck,” “Am

concerned your kid is going to come in one day and open fire

on the school. (Wish I was kidding.),” “I hear the trash

company is hiring,” “Utterly loathsome in all imaginable

ways,” and “There’s no other way to say this: I hate your

kid” (A245-A246). Munroe went so far as to include a

depiction of a school bus at the top of the post—together with

a comment disparaging special needs students: “I Don’t Care

If You Lick The Windows, Take The Special Bus Or

Occasionally Pee On Yourself . . . You Hang In There

Sunshine, You’re Friggin Special.” (A245 (emphasis

49

omitted).) Even if intended as part of a comedic exercise,

such characterizations speak for themselves. Simply put, they

were despicable. Furthermore, Munroe, in multiple blog

posts, ranted against her own students. To give just a few

examples, she called them “the devil’s spawn” (A237),

“Noisy, crazy, sloppy, lazy LOAFERS” (A440), and “rude,

disengaged, lazy whiners” (id.). As the District Court then

explained, “[t]he discovery of the blog undermines Plaintiff’s

early assumptions that her small readership and relative

anonymity would protect her personal comments from

reaching their subjects, especially as the blog was not

password protected.” Munroe, 34 F. Supp. 3d at 538. In

addition, students would have been able to identify

themselves or their classmates in at least some of her

derogatory comments. Parents likewise could occasionally

identify both themselves and their children from her “vivid

and personal appraisal of [student] character.” Id. at 539. In

her blog post identifying the “Things From This Day That

Bothered Me,” Munroe singled out “the jerk who was out 3

days around our last assessment because his family took him

on trip to Puerto Rico” and who “was out again today (the

date of another assessment) because his family took him to

the effing Master’s golf shit over Easter break.” (A213.) She

also pointed, inter alia, to the fact that she called home about

an obnoxious student the week before the break and, even

though his mother “said they told him to ‘knock it off,’” the

first thing he did when he saw her was to mock her failed

effort to ruin his weekend. (Id.) Munroe claimed in another

blog post that a female student (described as the girl in the

back in pink) made a cheat sheet only two days after

Munroe’s speech about honor and integrity and one day after

50

the class signed an honor pledge. Even the “report card

comments” she wished to add to the “canned” comment list

were often phrased in suspiciously specific terms.

We also observe that Munroe “did not take a

conciliatory approach” in her subsequent media appearances.

Id. at 538. Instead, she purportedly defended her blog entries

and refused to apologize for the comments. Students and

parents were thereby presented with a teacher who expressed

hostility and disgust against her own students and who, when

publicly confronted with her comments, not only refused to

apologize—but even went so far as to defend her derogatory

statements in the local and national media.

It would be an understatement to say that Munroe’s

speech caused rather negative reactions on the part of both

students and their parents. Likewise, it is wrong to claim (as

Munroe does in her appellate brief) that “the School District

[at most] demonstrated that some township residents were

unhappy with Munroe’s comments.” (Appellant’s Brief at

28.) According to CB East’s principal, the students were

“furious” and “livid,” and the school was “like a ticking time

bomb.” (A397.) “To say it was a disruption to the learning

environment is an understatement.” (A398.) Lucabaugh then

began to receive e-mails from parents indicating that they did

not want Munroe to teach their children, and (as the District

Court noted) students were permitted to opt out of Munroe’s

class. The School District hired another person to “shadow”

Munroe. In other words, another educator was paid to teach

the same exact schedule as Munroe herself. While Munroe

views the Defendants’ decision to inform residents in August

51

2011 that they would honor all “opt-out” requests as an

unprecedented step meant to set her up for failure, she also

acknowledged in her deposition testimony that the whole

situation was probably unprecedented. In fact, it appears

uncontested that Lucabaugh continued to receive more and

more e-mails from concerned parents throughout the summer

and peaking in June and July of 2011. “[N]ow I’m talking

over seventy-five people, eighty people, ninety people, one

hundred people, a hundred and—and it was growing.”

(A399.) When a teacher’s derogatory comments about his or

her students cause numerous parents to tell the school district

that they “don’t want her as my child’s teacher” (id.), it is

appropriate to conclude that his or her speech “‘impedes the

performance of the speaker’s duties’” as a teacher.

Dougherty, 772 F.3d at 991 (quoting Rankin, 483 U.S. at

388). Such speech then “‘interferes with the regular

operation of the enterprise’” because the school district hired

another teacher to accommodate the sheer and unprecedented

number of parental “opt-outs” it received. Id. (quoting

Rankin, 483 U.S. at 388); see also Pickering, 391 U.S. at 572-

73 (considering whether teacher’s speech “either impeded the

teacher’s proper performance of his daily duties in the

classroom” or “interfered with the regular operation of the

schools generally” (footnote omitted)).

Munroe does point out that she was allowed to return

to work the following school year (after her paid suspension

and maternity leave ended) and that, after then teaching for a

full year, she was ultimately terminated—supposedly on

account of her poor performance. When she returned to

work, Lucabaugh informed the media that “[n]o one here is

52

contending that she can’t say these things ... legally” and that

“she has a legal right to return.” (A286.) According to

Munroe, Defendants thereby recognized that Munroe’s right

to free expression outweighed any disruption and accordingly

chose not to terminate her when she returned to work in

August 2011. She claims that “the School District cannot

now be heard to say that a threat of disruption to the operation

of its schools outweighed Munroe’s rights.” (Appellant’s

Brief at 31.) Munroe further contends that the District Court

evidently determined that disruption automatically barred her

claim, instead of treating such disruption as a factor to be

weighed as part of what this Court in Dougherty recognized

as a true balancing test.

While Defendants’ actions here were somewhat

unusual and further complicate an already difficult situation,

we do not agree that they are now somehow estopped or

barred from claiming that the actual and potential disruption

caused by Munroe’s speech outweighed her free speech

rights—or that such actions on their part otherwise meant that

there was no disruption (or that the Pickering balancing test

necessarily weighed in favor of Munroe). After all,

Defendants need not make out a particularly strong showing

of disruption in this case given the weakness of Munroe’s

interest, as well as the interest of the public, in her speech.

See, e.g., Miller, 544 F.3d at 549 n.2. In Dougherty, we

acknowledged that Dougherty’s speech caused actual

disruption to the school district, but we then highlighted the

absurdity of allowing corrupt officials to punish their

whistleblowing subordinates because the speech had a

somewhat disruptive effect. Dougherty, 772 F.3d at 992-93.

53

Munroe, unlike Dougherty, was not a whistleblower. The

District Court, in any event, appropriately took into account

the competing interests and then determined that the speech at

issue here was not protected because the disruption

diminished any legitimate interest in its expression.

Furthermore, the First Amendment does not require a school

district to continue to employ a teacher who expresses the

kind of hostility and disgust against her students that Munroe

did on her blog and then publicly defends such comments to

the media—which results in serious negative reactions on the

part of both students and parents, the submission of numerous

parental “opt-out” requests, and the hiring of an additional

teacher. It appears that Munroe could have been fired when

Defendants became aware of her blog posts (although the fact

that she was scheduled to begin her maternity leave may have

complicated the situation) or at least at the beginning of the

next school year. But Defendants should not be held liable

for violating the First Amendment simply because they

(rather generously) hired another teacher and permitted

Munroe to return to work or because of what was said at the

principal’s media briefing. As the District Court also noted,

Lucabaugh did not explain whether his assessment was

premised on the United States Constitution, state law, or the

terms of Munroe’s employment contract. In fact, C.B. East’s

principal made it clear that Munroe’s speech caused

disruption and harmed C.B. East’s students, explaining that

“[w]hat is at the heart of this issue, however, is the large-scale

disruption her comments created, and the ensuing damage

they have caused the young men and women to whom she

was alluding.” (A286.)

54

In Melzer, the Second Circuit assumed that Melzer’s

activities on behalf of NAMBLA possessed the highest value

under the First Amendment and placed a heavy burden on the

board of education to justify his dismissal. Melzer, 336 F.3d

at 198. However, it still concluded that, given the nature of

his position as a public school teacher, “the disruption they

cause is great enough to warrant the school’s action against

him.” Id. While some parents and students expressed

support for his free speech rights and there were certain minor

discrepancies with respect to the reported disruption, “[i]t is

nonetheless entirely reasonable for the Board to believe that

many parents and students had a strong negative reaction to

him, and that such a reaction caused the school to suffer

severe internal disruption.” Id. A psychological expert

testified that a teacher with Melzer’s beliefs would provoke

anxiety for the average student (e.g., he or she would be

unable to concentrate or would be uncomfortable asking for

help after class). Id. at 198-99. The Second Circuit pointed

out that, while “[h]e acts in loco parentis for a group of

students that includes adolescent boys,” he simultaneously

“advocates changes in the law to accommodate his desire to

have sexual relations with such children.” Id. at 199. “We

think it is perfectly reasonable to predict that parents will fear

his influence and predilections. Parents so concerned may

remove their children, thereby interrupting the children’s

education, impairing the school’s reputation, and impairing

educationally desirable interdependency and cooperation

among parents, teachers, and administrators.” Id. In fact,

several parents threatened to remove their children from the

school, and Melzer candidly admitted that it would be

55

difficult for him to decide whether to report an incident of

child molestation.11 Id. at 191, 199.

Similarly, we find it significant that the Seventh

Circuit determined that the defendants’ interests in remedying

the potential disruption caused by a guidance counselor’s

book of adult relationship advice outweighed his own speech

interest. Craig, 736 F.3d at 1119. As the Craig court

explained, “Defendants’ assessment of how Craig’s students,

and particularly his female students, would respond upon

reading or hearing about the hypersexualized content looms

large in our analysis.” Id. For instance, female students

could easily feel uncomfortable asking for his advice given

11 According to the Second Circuit, “the employee may

still carry the day [even if the government prevails in the

balancing test] if he can show that the employer’s motivation

for the discipline was retaliation for the speech itself, rather

than for any resulting disruption.’” Melzer, 336 F.3d at 193

(citing Sheppard v. Beerman, 94 F.3d 823, 827 (2d Cir.

1996)). The Second Circuit found no proof that the board of

education’s decision to terminate Melzer was motivated by

his NAMBLA membership (which was known to the board

for a number of years). Id. at 199-200. Unlike Melzer,

Munroe has not raised this issue before either the District

Court or this Court. In fact, Munroe failed to address the

Melzer opinion in her District Court briefing, even though

Defendants addressed it in their own briefs. She likewise

fails to mention this opinion in her appellate briefing

(although it was cited by the District Court, and Defendants

rely on the Second Circuit’s ruling in their appellate brief).

56

“his professed inability to refrain from sexualizing females.”

Id. at 1120. Likewise, some students could be apprehensive

about speaking with Craig on account of his derogative view

of women. Id. He specifically claimed in his book—which,

after all, was entitled “It’s Her Fault”—that women do not

succeed in relationships because of their tendency to act

based only on their emotions and emphasized “the importance

of a woman’s sexual ‘submissiveness’ to her male partner.”

Id. The Seventh Circuit understandably asked whether a

female high school student would really speak with a

guidance counselor about future career options knowing he

believed women are not inclined to rational thought or go to

him to discuss relationship issues given his views about

sexual submissiveness.12 Id.

Obviously, Munroe does not support sexual relations

with minors, and she likewise did not publish a book

confessing to her inability to refrain from sexualizing her

students. However, she still expressed hostility and disgust

12 Defendants and the District Court have also cited to

a 1981 ruling by the Sixth Circuit. In Anderson v. Evans, 660

F.2d 153 (6th Cir. 1981), the panel majority concluded that

the defendants did not violate the First Amendment when

they terminated an elementary school teacher who made

racially charged remarks that, inter alia, had a detrimental

effect on the school and the community it served, id. at 159.

In short, “the interest of the school board in maintaining an

efficient and regularly functioning school system and in

employing effective teachers outweighed Mrs. Anderson’s

interest in making the remarks.” Id.

57

against her own students. “Is it unreasonable to think a [CB

East student] who learned that[, to give just one example,

Munroe referred to her students as ‘the devil’s spawn’

(A237)] may decide against” asking her advice? Id.

Likewise, how could students be expected to participate in a

class when a teacher indicated that she wished she could use

terms like “Rat-like” on their own report cards (even if her

list was intended as a humorous exercise)? (A245.)

Accordingly, we determine that, pursuant to the Pickering

balancing test, Munroe’s speech did not constitute speech

protected by the First Amendment.

III.

We will affirm the order of the District Court granting

Defendants’ motion for summary judgment.

1

Natalie Munroe v. Central Bucks School District, et al.

No. 14-3509

_________________________________________________

AMBRO, Circuit Judge, dissenting

My colleagues focus on Ms. Munroe’s claim that she

was retaliated against for authoring offensive blog posts.

This is an issue that is closer than they suggest. However, I

need not deal with it, as there is more to Munroe’s lawsuit

than blog posts to friends that became public. A critical

component is the allegation that the TV and print interviews

Munroe gave following her suspension by the School District

factored into its discharge decision 15 months later.

Unexplainably, the District Court declined to address this

argument, saying only in a footnote that, even if it had

considered the interviews, that wouldn’t have changed its

decision to enter summary judgment. See Munroe v. Cent.

Bucks Sch. Dist., 34 F. Supp. 3d 532, 538 n.65 (E.D. Pa.

2014). That is not very satisfying. If Munroe had a First

Amendment right to say her piece before a national audience,

and no doubt she did (even the School District acknowledged

this), then summary judgment is inappropriate to the extent

her TV appearances, coupled with her comments made to

print media, played a role in her dismissal and the School

District wouldn’t have taken the same action absent them.

See Miller v. Clinton Cnty., 544 F.3d 542, 548 (3d Cir. 2008).

Like the District Court, my colleagues duck this

argument. Their out, however, is that Munroe didn’t

“devote[] much attention to the subsequent media coverage,”

Maj. Op. 35 n.7, and provided “essentially no evidence

regarding the content of the[] interviews besides [her] general

characterization of them,” id. at 34–35. Because I do not

share that assessment and would reverse to allow a jury to

consider whether Munroe’s interviews with the media

2

contributed to the allegedly retaliatory dismissal, I

respectfully dissent.

The first order of business is to determine whether

Munroe adequately preserved the claim that she was

retaliated against for discussing her suspension with various

news organizations. Parting ways with the conclusion of my

colleagues, see Maj. Op. 35 n.7, I think the answer is a

resounding yes. Though Munroe may not have made the

claim the focus of her case, she certainly raised it at every

stage in the District Court and again on appeal. In her

complaint, she alleges that the School District punished her

for appearing on “CBS, ABC, NBC, CNN, Fox News” and

giving interviews to, among others, “Time Magazine,

Reuters, the Associated Press, [and] the Philadelphia

Inquirer,” and that all these appearances “were protected

under the First Amendment.” Am. Compl. ¶¶ 23–29.

Likewise, her response to the School District’s summaryjudgment

motion argues that she “engaged in two types of

speech, each of which [is] protected under the First

Amendment[:] First, [she] blogged to her friends and family

about her experiences at CB East . . . . [;] [and] [s]econd,

[she] engaged the media in a very public debate about her

blog and the Education Debate discussed in [it].” Pl.’s Opp’n

Defs.’ Mot. Summ. J. 15–16. And the District Court

apparently thought enough of the argument to address it

(though only in a footnote), positing that “the analysis would

not change . . . upon consideration of the interviews [Munroe]

gave to the media.” Munroe, 34 F. Supp. 3d at 538 n.65.

Finally, on appeal in the section of her brief titled

“Statement of the Issue Presented for Review,” Munroe poses

the following question: “Did the District Court err in holding

that a public school teacher’s opinions about matters of public

concern, published in her blog and stated in interviews to

various media outlets, were unworthy of First

3

Amendment . . . protection under the Pickering v. Board of

Education [391 U.S. 563 (1968)] balancing test?” Munroe

Br. 1 (emphasis added). She also addresses the claim in the

section of her brief titled “Rulings Presented for Review,”

Munroe Br. 14, and develops her argument in later sections,

see id. at 26 (asserting that her media appearances implicated

a matter of public concern), id. at 28 (pointing out that “there

was no evidence offered to demonstrate that [her] blog

entries, or her interviews with the media, prevented her from

doing her job as a high school English teacher” (emphasis

added)). Even the School District deems Munroe’s argument

about the media interviews important enough to address. It

contends that the interviews shouldn’t receive First

Amendment protection and, in any event, “there is no genuine

issue of any material fact that Plaintiff would have been

terminated even in the absence of her blog and media tour.”

School Dist. Br. 51 (emphasis added). In this context,

Munroe has adequately raised, both before the District Court

and on appeal, whether her media interviews were a reason

for the retaliation she alleges. I thus move to the merits.

To succeed on her claim, Munroe must establish that

the interviews were “protected by the First Amendment

and . . . [were] a substantial or motivating factor” in the

allegedly retaliatory discharge. Dougherty v. Sch. Dist. of

Phila., 772 F.3d 979, 986 (3d Cir. 2014); see also Miller, 544

F.3d at 548. If she succeeds, the burden shifts back to the

School District to show it would have fired her regardless

whether she had told her story before a national audience.

The First Amendment question—which, per Pickering,

balances “the interest in freedom of expression against the

employer’s interests[—]is to be done by the judge, not the

jury.” Dishnow v. Sch. Dist. of Rib Lake, 77 F.3d 194, 198

(7th Cir. 1996) (Posner, J). The causation issues, by contrast,

the jury decides. See Watters v. City of Phila., 55 F.3d 886,

892 n.3 (3d Cir. 1995).

4

The threshold issue in determining if Munroe’s speech

was protected by the First Amendment is whether her

interviews with the national media implicated a matter of

public concern. See Craig v. Rich Twp. High Sch. Dist. 227,

736 F.3d 1110, 1115 (7th Cir. 2013). If she can show this,

the School District’s interest in promoting an “effective and

efficient” learning environment is balanced against Munroe’s

interest in commenting on her suspension. Id. at 1118

(quoting Chaklos v. Stevens, 560 F.3d 705, 714 (7th Cir.

2009) (internal quotations marks omitted)). The outcome of

that test, called Pickering balancing, yields the answer to

whether the First Amendment protects Munroe’s TV

appearances and print interviews.

On the public-concern question, I see no difficulty (nor

apparently do my colleagues, see Maj. Op. 34–35) in

concluding that Munroe’s TV appearances involved a matter

of “legitimate news interest,” San Diego v. Roe, 543 U.S. 77,

84 (2004) (per curiam), or a matter “in which the public

might be interested,” Dishnow, 77 F.3d at 197. See also

Eberhardt v. O’Malley, 17 F.3d 1023, 1026 (7th Cir. 1994)

(Posner, J.) (“The First Amendment protects entertainment as

well as treatises on politics and public administration.”). The

relevant sequence of events is instructive.

After the public learned of Munroe’s blog, Central

Bucks High School East (“CB East”) Principal Abram

Lucabaugh moved swiftly to suspend her and issued a

televised statement explaining the School District’s decision

to do so. Caught off guard by the public announcement,

Munroe “felt . . . it was necessary to share [her] side of the

story.” Munroe Dep. Tr. 58:5–12. Luckily for her, the

suspension became a national news story, and when it did a

number of highly prominent news programs invited her to

discuss the situation on live TV. Among them were ABC’s

Good Morning America and Fox News’s Fox and Friends

5

and Justice with Jeanine. Time Magazine and The

Philadelphia Inquirer, among others, likewise wanted the

scoop. While Munroe maintains she focused on whether

“today’s youth is overindulged, underworked, and selfentitled”

and whether “their parents and schools have been

complicit in creating this result,” Pl.’s Reply Mem. Law Opp.

Defs.’ Mot. Summ. J. 3, the School District argues otherwise.

It contends that Munroe used the interviews to defend herself,

not to engage in a public debate. The likely answer is a

combination of both, but the key is that Munroe’s media tour

focused on an event that had already captured the public’s

attention: the suspension of a public school teacher for

criticizing her students on a publicly available blog. As one

prominent publication put it, Munroe found “herself in the

middle of a swirling online debate—not over what she did,

but over what she said about the sometimes harsh realities of

the 21st century classroom.” Kayla Webley, How One

Teacher’s Angry Blog Sparked a Viral Classroom Debate,

TIME (Feb. 18, 2011), http://content.time.com/time/printout/

0,8816,2052123,00.html. Munroe’s intimate familiarity with

the facts made her account all the more newsworthy. Viewed

in that light, Munroe’s failure to introduce in court a play-byplay

of her media appearances is of no consequence.

Having concluded that Munroe’s media tour

implicated a matter of public concern, I turn to the Pickering

balancing portion of the analysis. On that front, to repeat, a

court must “balance the employee’s interest in engaging in

her speech with the employer’s countervailing interests.”

Miller, 544 F.3d at 548. In the school context, those interests

include a teacher’s ability to fulfill her duties in the

classroom. See Melzer v. Bd. of Educ. Dist. of City of N.Y.,

336 F.3d 185, 198–99 (2d Cir. 2003). “[T]he amount of

disruption a public employer has to tolerate is directly

proportional to the importance of the disputed speech.”

Miller, 544 F.3d at 549 n.2.; see also Dishnow, 77 F.3d at 197

6

(noting that the public employer must show that it “had a

convincing reason to forbid the speech” in question). Though

the School District argues that its “interest in curtailing

speech that affected [CB East]’s operation [is] great,” School

Dist. Br. 40, it has pointed to nothing suggesting that

Munroe’s appearances in the national media (as distinct from

her blog) interfered with her ability to educate her students.

Nor has it argued that Munroe’s decision to tell her side of a

story that spawned a spirited public debate negatively

affected employee morale. My colleagues have no answer

and say only that the First Amendment doesn’t require a

school district to continue employing a teacher “who, when

publicly confronted with her comments, not only refused to

apologize—but even went so far as to defend her derogatory

statements in the local and national media.” Maj. Op. 50.

The most that can be said of these arguments is that

Munroe didn’t “take a conciliatory approach” when

interviewed and “fanned the flames of controversy.” Munroe,

34 F. Supp. 3d at 538. But, even if true, it says nothing about

whether this made the job of running CB East more difficult.

Furthermore, it is hard to take seriously the School District’s

disruption argument when it did virtually nothing to quell the

disorder that supposedly prevented CB East from satisfying

its educational mission. After Munroe’s blog became public

and the ensuing firestorm of publicity, the School District

could presumably have asserted that its educational

obligations outweighed Munroe’s free-speech rights and

discharged her. But it opted instead to suspend her, which

was of minimal import to Munroe, as this coincided with her

planned maternity leave. The School District had a second

opportunity to dismiss (or, at the very least, transfer) Munroe

7

when, after her suspension was lifted,1 CB East students

opted out of her class en masse in August 2011. But again

the School District didn’t do so. The result, in my view, is

that the School District forfeited its right to match its

operational interests against Munroe’s free speech interests.

For these reasons, I see no path to conclude that the

Pickering balance weighs in the School District’s favor.

That takes me to the final two questions, both of which

deal with causation. First, were Munroe’s interviews a

motivating factor in the School District’s discharge decision?

See Watters, 55 F.3d at 892 (noting that, to succeed on a

retaliation claim, a “plaintiff must show that the protected

activity was a substantial or motivating factor in the alleged

retaliatory action”). If they were, has the School District

carried its burden to show that it would have reached the

same decision regardless of the interviews? See id.

Precedent counsels us to tread carefully when deciding issues

of causation on summary judgment—all the more so here.

That School District officials were upset about

Munroe’s media tour is made plain by two “smoking-gun”

emails. After seeing Munroe appear on Fox News, a School

District director, John Gamble, told his colleagues he was

“confident [the Board] [was] doing the right thing.” To

remove any doubt about what “doing the right thing” refers

to, we need only look at the bottom of Gamble’s email, which

makes clear it was sent in response to the “termination plan”

Superintendent N. Robert Laws had circulated. At the end of

that email, Laws too revealed how he felt about Munroe’s

1 Principal Lucabaugh announced that Munroe had a “legal

right” to blog about her students and a “right to return” to CB

East. He also indicated that a transfer “would be both

irresponsible and further disruptive.”

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media tour, see id. (“I will not be drug [sic] into the mud of

TV news entertainment . . . .”), and that “Fox news ha[d]

called [him] 6 times . . . to appear on the Justice with Jeannie

[sic] show,” id.

Against this background, I am persuaded that Munroe

has, at a minimum, created a jury question about whether her

media interviews factored into the discharge decision.

Nothing the School District has argued convinces me

otherwise, i.e., that the causal connection “question is so free

from doubt as to justify taking it from the jury.” Revels v.

Vincenz, 382 F.3d 870, 876 (8th Cir. 2004) (quoting Naucke

v. City of Park Hills, 284 F.3d 923, 928 (8th Cir. 2002)).

Despite its best attempt to shine a light on Munroe’s

purported poor performance as the reason for her firing, the

School District’s argument is unpersuasive if not

disingenuous. A brief reiteration of Munroe’s employment

history at CB East is in order.

After being hired to teach English in 2006, Munroe

was awarded tenure only four years later in March 2010, on

the recommendation of Principal Lucabaugh (who also wrote

of Munroe in June 2008 that “[s]he is a consummate educator

with a sparkling future”). During that time, her teaching

record was pristine—she received the highest mark available

(“satisfactory”) in eight consecutive performance evaluations.

But then, on June 15, 2011—only a few months after her blog

became known and she appeared on the media to defend her

position in response to Lucabaugh’s televised

announcement—Munroe received her first unsatisfactory

evaluation. Among the concerns noted was Munroe’s sudden

“inability to connect to . . . students and make them feel that

she cares about them” as well as the “overuse of vocabulary

assignments and vocabulary assessments” and “inappropriate

use of a ‘nanny cam’ during teaching hours.” Munroe’s

troubles carried over to the next semester when school

9

officials began dropping into her classes unannounced. The

drop-ins, according to Munroe, became “calculated and

unrelenting,” which led to her bosses “nitpicking everything

[] [she] did.” Could anyone blame Munroe for believing they

“had an agenda”?

Seven unannounced observations later, Munroe

received her second unsatisfactory evaluation on January 20,

2012. Not unexpectedly, she received a third and final

unsatisfactory evaluation on June 1, which highlighted her

continued performance issues and failure to submit lesson

plans using the “Central Bucks School District designed

template”—the latter a requirement to which she was never

held until she began receiving unsatisfactory evaluations.

Termination inevitably followed in June 2012.

In short, I have no doubt the School District was well

aware that firing Munroe for her blog posts and media tour

would land it in constitutional hot water. More than enough

evidence suggests that firing her on performance grounds was

a pretext for its real reason—she had spoken out to friends on

a blog, it became public, School District officials were upset

and proposed her termination, they decided to wait, the oncesterling

evaluations of Munroe immediately became negative,

and she was fired. The bottom line: too many signs suggest

this was all a set-up that a jury needs to sort out. I thus

respectfully dissent.

We will affirm the order of the District Court granting

Defendants’ motion for summary judgment.