Confusion results from differing applications of teachers’ rights
The actions of Iowa school leaders seem at odds with the U.S. Supreme Court's broad protections for a football coach who exercised his free speech and religion rights.
THE NATION’S FOUNDERS got right to the point when they laid out how to treat the First Amendment freedoms of religion, speech, the press and the rights of people to assemble and to petition the government. They used only 45 words, without asterisks.
Their simple words should lead to simple conclusions. Yet, recent Iowa cases illustrate why people in general, and educators specifically, are perplexed about what is protected and what is not.
Some legal background:
In a 2022 decision dealing with school employees’ First Amendment rights, the U.S. Supreme Court refereed whether Joseph Kennedy, a public high school football coach in Bremerton, Wash., engaged in protected conduct when he held post-game prayer sessions with his players in the middle of the football field.
School officials disapproved and told Kennedy to stop. He persisted, so the school suspended him and then declined to renew his contract.
The coach sued, arguing the school violated his First Amendment rights by punishing him for his “brief, quiet prayer” at the 50-yard line after each game. He contended the school could better address its concerns by educating students and the public that such prayers merely were personal religious expression, not that of the Bremerton district.
The school countered that the coach’s prayers were disruptive, with spectators bowling over people as they rushed the field to pray alongside the coach and team. Some players felt social pressure to join the coach’s prayers, the school noted.
The district court ruled for the school, finding the coach’s “prominent, habitual prayer [is] not the kind of private speech that is beyond school control.”
By a 6-3 vote, the Supreme Court decided otherwise. The majority wrote, “The Free Exercise and Free Speech clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.”
SCHOOL OFFICIALS’ ACTIONS AGAINST two Iowa teachers in recent weeks seem at odds with the Supreme Court’s broad protection of personal expression in the Bremerton case.
Since 2012, Matthew Kargol taught art at Oskaloosa High School. He also served as track and wrestling coach. The district consistently gave him positive evaluations. It never disciplined him — until firing him last month.
Kargol’s transgression: He posted three words — “1 Nazi down” — on his own personal Facebook account the day that conservative activist Charlie Kirk was murdered in Utah. Seven days later, the school board fired Kargol.
Unlike the Bremerton coach, who exercised his speech and religion rights on school grounds, during school events, and with students participating, nothing in Kargol’s Facebook account or his posting identified him as an Oskaloosa teacher or otherwise linked him and his message to school events. He did not gather students on school property to hear him speak. Instead, he posted his comment from his own computer, on his own time and from his own home.
Kargol sued the school and Superintendent Michael Fisher. His lawsuit said the school district engaged in a “politically motivated pressure campaign,” even though no one claimed Kargol’s off-duty comment created classroom disruption or otherwise caused “any failure or inadequacy in his performance, or any threat to disrupt the learning environment.”
Instead, the lawsuit said, the superintendent “responded swiftly, not by examining whether the post had any impact on Mr. Kargol’s ability to teach or the District’s ability to provide educational services in an efficient and effective manner, but by condemning Mr. Kargol’s viewpoint.”
The superintendent “publicly announced that he would recommend termination and justified that recommendation by pointing to the public disapproval of Mr. Kargol’s post and his own disagreement with Mr. Kargol’s speech,” the lawsuit said.
Another Iowa case shines the spotlight on governments that punish school employees for what they said instead of what they did, based on the popularity of their post rather than the fact it was an expression of personal opinion.
MELISA CROOK HAS TAUGHT ENGLISH at Creston High School since 2022. She sued the school, Superintendent Deron Stender and school board President Don Gee last week after they threatened to fire her for a Facebook comment she made in response to a relative’s post about Charlie Kirk’s death.
Crook wrote of Kirk, “He is a terrible human being. Terrible. I do not wish death on anyone, but he [sic] him not being here is a blessing.”
The next morning, Crook apologized on her Facebook page: “I do NOT condone violence or the killing of people you disagree with politically or otherwise. That was never my intent. That is not who I am, nor what I believe. … I believe all people have the right to their own beliefs, including me.”
In the days that followed, Superintendent Stender issued two public statements about Crook’s postings. In one, he wrote, “I want to be clear: personal views have no place in the instruction of our children.”
But nothing appears to link her Facebook comment to her classroom instruction. Unlike the Bremerton football coach, she did not use school facilities or work time to make her comment.
Crook’s lawsuit asks the court to bar the school board from firing her. Her attorneys said in court documents, “Crook’s Facebook comment is classic, protected, personal and political speech. The First Amendment protects Crook from discrimination, adverse action, retaliation, and similar punitive conduct by the state or a governmental entity like the District.”
The school board has scheduled a hearing for October 21 on Stender’s recommendation to fire Crook.
THE CRESTON SCHOOL BOARD FACES an interesting revelation. Crook’s lawsuit includes Facebook postings Stender and Gee made about highly partisan political matters. The lawsuit notes how the superintendent was not placed on leave for any of his posts or threatened with termination.
Stender made at least one Facebook post agreeing with comments Charlie Kirk made, the lawsuit says. The superintendent also made political posts on a Twitter account he used for school purposes, including comments supporting President Donald Trump. In other posts, Stender called supporters of former President Joe Biden “snowflakes” and “idiot,” the lawsuit says.
In 2020, Sarah Scull, then editor of the Creston News Advertiser, wrote in a column that people in the community had contacted her about the “hateful and divisive rhetoric” in Stender’s Twitter posts and in postings he “liked.” The comments Scull received noted, in effect, the school disruption Stender was creating.
One such post he approved of said, “Are you sure BLM isn’t pronounced Al Qaeda?” — a reference to the Black Lives Matter movement. Before the 2020 election, Stender wrote on social media, “Get your boots on. Will be lots of water when the snowflakes melt on Tuesday night.”
Scull wrote in her 2020 column, “It’s not the content that is upsetting to some of his staff as much as it is the perceived ‘double standard’.”
And that, at its essence, frames the issue between how the U.S. Supreme Court protected on-the-job speech of Bremerton’s Joseph Kennedy and how officials in Oskaloosa and Creston are treating the actions of Matthew Kargol and Melisa Crook, not to mention the postings by Deron Stender.
Will these Iowa districts accord their teachers and coaches full speech rights, the way the Supreme Court did Kennedy? Or will the districts claim some new exception applies for comments about Charlie Kirk?
In large part, the answer may depend on how quickly school administrators rediscover there is no asterisk in the First Amendment.
Iowa Writers’ Collaborative
Stray Thoughts is a member of the Iowa Writers’ Collaborative, sort of a modern-day version of the traditional Sunday newspaper. The collaboration is a group of about 70 writers, song writers and poets who write each week about topics of interest to Iowans. Please check out our work here and become a paid subscriber to your favorite columnists if you can afford it. Please and thank you.
Iowa is also known for the Des Moines School systems' role in the Tinker test (the "substantial disruption" test). Generally speaking, this test is still used by courts today to determine whether a school's interest in preventing disruption outweighs students' First Amendment rights
I am not surprised the school board attorneys advised their superintendents and school board members to couch all their reasoning and PR language in terms of disruption of the school.
Spot on observations and analysis, Randy. Kudos.