If you are a teacher, it is risky to criticize a politician’s rape fantasy, even outside the classroom, if you describe the fantasy while doing so. The Florida Division of Administrative Hearings has illustrated that, in a ruling that likely violates the First Amendment rights of a teacher.
In Duval County School Board v. Caggiano, an administrative law judge recommended punishment — a three-day suspension without pay and requirement “to complete a course in Culture Diversity”—for a high school math teacher over his two Facebook posts. The posts were on a personal page of the teacher, not the school’s web site or social media accounts. The personal page did mention the fact that the teacher works for the Duval County schools, like many people’s Facebook pages mention their employment in passing. The two posts that the administrative law judge ruled warranted punishment were:
(a) A repost from a Facebook entity called “Messenger of Liberty,” which states: “My son is taking part in a social experiment. He has to wear a Bernie 2020 t-shirt for 2 weeks and see how people react. So far he’s been spit on, punched and had a bottle thrown at him! I’m curious to see what happens when he goes outside.” …
(d) A repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” and which then states: “A man goes home and masturbates his typical fantasy. A woman on her knees, a woman tied up, a woman abused. A woman enjoys intercourse with her man—she fantasizes being raped by 3 men simultaneously…” The “screen grab” attributes this quote to Bernie Sanders, currently a United States Senator from Vermont, sometime in the 1970’s (the exhibit copy is unclear), and Mr. Caggiano’s handwritten notes next to this exhibit states” “Bernie said this!” …
National Public Radio provides more detail about the underlying Bernie Sanders essay, here.
The teacher’s Facebook posts resulted in a news story by the Jacksonville newspaper, and criticisms from parents and the public:
[36.] After the publishing of the May 21, 2020, Florida Times Union article, school officials, including Ms. Schultz and Dr. Hatcher, testified to receiving numerous complaints. The undersigned received into evidence numerous complaints from parents concerning Mr. Caggiano’s Facebook posts …. Some of these parents also testified at the final hearing concerning their complaints and feelings concerning Mr. Caggiano’s Facebook activity. These parents testified that they felt Mr. Caggiano’s Facebook posts were inappropriate for a teacher.
[37.] Assistant Principal Motley testified that a total of four students … requested and were transferred out of Mr. Caggiano’s classes during the Spring 2020 semester….
[44.] With respect to Mr. Caggiano’s repost from a Facebook entity called “Messenger of Liberty,” … Mr. Caggiano testified that “it’s funny. All my posts were either political commentary, social commentary, or adult humor. And that’s funny. Okay. So for somebody to look at that and not giggle at least, you know, I don’t think you know what funny is. That’s funny.”
[45.] This particular repost states that, after his son wears a “Bernie” t-shirt, “[s]o far he’s been spit on, punched and had a bottle thrown at him.” Although Mr. Caggiano testified that he believed this to be “funny,” the undersigned finds that it also could be logically read to encourage violence against a child.
[46.] With respect to Mr. Caggiano’s repost from another individual, which appears to be a “screen grab” from a Fox News segment, which states, at the top, “MAN AND WOMAN,” … Mr. Caggiano testified that it was not his opinion, but that he was quoting Bernie Sanders, and that “people should know somebody who’s a sitting senator, twice presidential candidate, former mayor of New York City, has this sort of mentality.” [Sanders was the former mayor of Burlington, Vermont, though this error was of course not relevant to the analysis.-EV]
[47.] On cross-examination, when asked if “women, teenage girls, could be offended by this post[,]” Mr. Caggiano testified, “I think everybody should be offended by this.” The undersigned finds that despite Mr. Caggiano’s belief that his post makes an important point about Bernie Sanders, the undersigned finds that it can be logically read to be patently offensive, discriminatory, and degrading to women. Mr. Caggiano’s own testimony confirms this….
[53.] The undersigned finds that two of the alleged posts, reposts, and comments—entitled “My son is taking part in an experiment,” and “MAN AND WOMAN”—warrant further findings that include violations of statutes, rules, and policies enunciated in the Amended Step III Progressive Discipline correspondence….
[54.] The two posts at issue concern violence and abuse of a child, as well as discriminatory and degrading views of women being abused and raped. Mr. Caggiano candidly admitted that the post concerning women was offensive. The undersigned finds that these particular posts violate some of the governing laws, rules, and policies alleged in the Amended Step III Progressive Discipline correspondence.
[65.] The School Board established, with respect to the two aforementioned Facebook posts, that Mr. Caggiano’s conduct constituted “potential harm to the physical and mental well-being of a student, or students[,]” and “behavior that impairs the employee’s effectiveness in performing her/his duties, professionalism, and confidence in the eyes of the students and parents/guardians[,]” and thus, under article V, section C, subsections 9 and 10 of the CBA, it was not required to follow the steps of progressive discipline, and had just cause to reprimand (Step II) and suspend without pay (Step III) Mr. Caggiano, and require him to complete a course in Culture Diversity….
Professor Volokh says this discipline violates the First Amendment, although the legal standards used by the courts to decide these cases involve a murky balancing test. (Volokh is a former Supreme Court clerk whose writings are occasionally cited by the Supreme Court, and the author of the textbook “The First Amendment and Related Statutes”).
Volokh says this discipline “seems very hard to justify to me, but of course the Pickering test for government employee speech is notoriously vague (partly because it’s the one First Amendment test that overtly calls for “balancing”) and notoriously open to heckler’s vetoes. It’s apparently now up to the school board to decide whether to accept the ALJ’s order; Caggiano has filed exceptions to the order, which the school board is now considering, and there may ultimately be an appeal to state court as well.”