Mary Durstein v. Tod Allexander, et al.

Huntington, West Virginia civil rights lawyers represented Plaintiff who sued Defendants claiming they violated her First Amendment rights.



Durstein worked as a full-time teacher for Cabell County Schools from November 2001 until her termination on March 6, 2017. During the 2016-2017 school year, Durstein taught World Studies at Huntington High School. She operated a Twitter account viewable by the public and often posted about political issues. A journalism student at Marshall University gathered several of Durstein's tweets, and the student or a friend of the student shared the tweets with Cabell County Schools and local news organizations.



On January 9, 2017, Huntington High School Principal Jody Cunningham called Durstein into his office to meet with him and Todd Alexander, an assistant superintendent for Cabell County Schools. At this meeting, Alexander and Cunningham discussed three of Durstein's tweets with her. The first, posted on July 16, 2015, is a retweet of conservative commentator Ann Coulter containing a photograph of two men and five women, some of whom are wearing hijabs. One of the men in the photo is Mohammad Youssuf Abdulazeez, who had opened fire on two military installations in Tennessee. A caption above the photo reads "Deport them." The second tweet, also from July 16, 2015, states "Who cares if we offend Muslims at least they keep their heads on tact. They're the enemy!" In the third tweet, posted on May 28, 2016, Durstein responds "Exactly !!!!!!!!!" to a meme calling President Barack Obama a "Muslim douchebag."



After discussing these tweets, Alexander told Durstein three times to immediately shut down her Twitter account. Cunningham told Durstein to sit at his desk and use his computer to shut down the account. Durstein did not know how to deactivate her account, so another school employee helped her shut it down while Alexander watched. Alexander then told Durstein "[y]ou're not to speak to the media" and placed her on administrative leave with pay.



On January 24, 2017, the Superintendent of Cabell County Schools suspended Durstein without pay. On March 6, 2017, the Board of Education of Cabell County Schools voted to terminate Durstein. Durstein appealed, but the West Virginia Education and State Grievance Board upheld her termination on September 22, 2017. On December 11, 2017, Durstein received notice that the State Superintendent of Schools was investigating whether to revoke her teaching certificates. As of the filing of her Amended Complaint, Durstein had not received a decision from this investigation.



The Amended Complaint includes five counts. Count One is a 42 U.S.C. § 1983 claim against Alexander for violating the First Amendment by coercing Durstein to terminate her Twitter account. Count Two is a § 1983 claim against the Board of Education for its alleged custom of coercing employees to terminate their social media accounts. Count Three is a § 1983 claim against Alexander for violating the First Amendment by commanding Durstein not to speak to the press. Count Four is a § 1983 claim against the Board of Education for terminating Durstein's employment based on polices that violate the First Amendment. Count Five is a § 1983 claim seeking a declaratory judgment that the First Amendment bars the State Superintendent of Schools from revoking Durstein's teaching certificates based on her tweets.



The Court dismissed Counts Two and Five in December 2019. The Court dismissed Count Two because Durstein did not plead facts sufficient to show the Board of Education had a custom of coercing employees to terminate their social media accounts. And the Court dismissed Count Five based on the Younger abstention doctrine because of the state's ongoing proceedings against Durstein to revoke her teaching certificates. I Because Count Five was the only claim against the Superintendent, the Court terminated him as a defendant.



Durstein now moves to file a Supplemental Complaint based on new factual developments. The Supplemental Complaint adds new allegations based on the state's decision to end its investigation of Durstein and not revoke her teaching certificates. The Supplemental Complaint also alleges the Board of Education failed to hire Durstein for 24 separate teaching positions in the summer of 2019. Based on these new allegations, the Supplemental Complaint attempts to revise and reinstate Count Five against the Superintendent now that the state will not revoke Durstein's teaching certificates. Specifically, Durstein narrows Count Five to a facial challenge to the "immorality" provision of West Virginia Code § 18A-3-6. Durstein also pleads a new Count Six against the Board of Education based on the Board's failure to rehire her.

08/23/2023 280 ORDER OF 4CCA as to 273 Notice of Appeal to the 4CCA, upon consideration of the stipulated motion to voluntarily dismiss, the court dismisses this appeal, upon such terms as have been agreed to by the parties, pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure. (mkw)



08/23/2023 281 RULE 42(b) MANDATE re: 273 Notice of Appeal to the 4CCA in 4CCA Case No. 23-1008. The judgment of this Court, entered 8/23/2023, takes effect today. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (mkw)