At the outset, it is important to emphasize that the charges against Caggiano involve no use of school resources, no communications or contact with students, and no improper conduct on or with school property; they do not involve false or defamatory statements about the school district, administrators, teachers or students; they do not involve matters of school administration. The swirl of controversy about Caggiano’s treatment of a transgender student formed no basis for the charges against him; the School Board chose not to pursue sanctions for the incident, which plays no role in this appellate proceeding. Instead, the disciplinary charges involve only Caggiano’s two Facebook posts made from his own personal computer, which were both reposts of third-party content that was derogatory of a candidate in the 2020 Presidential election, Senator Bernie Sanders….<\/p>\n

The two-part [First Amendment test for government employee speech] that has evolved is whether (a) the employee spoke on a matter of public concern (i.e., one of significance or importance in society at large), and, if so, (b) whether the employee’s right to free speech outweighs the employer’s interest in an efficient workplace without disruption…. This two-part judicial analysis is known as the Pickering-Connick<\/em> test ….<\/p>\n

Caggiano’s two reposts and his accompanying commentary address a matter of public concern: a Presidential candidate. The Fox News screenshot from the Jesse Watters show depicted a vulgar statement made by Senator Bernie Sanders at a time when he was a college student. The statement was newsworthy because it reflected poorly on the candidate and his judgment. Caggiano’s comment that “Bernie said this!” merely expressed his surprise at the statement.<\/p>\n

Likewise, the repost of the Bernie 2020 T-Shirt schtick is clearly political humor that is derisive of the candidate; its purpose is to commentate in a humorous (to some) manner that Senator Sanders was lacking support, perhaps even within his own ranks. It is hard to imagine, as the School Board did, that this type of attempt at humor was anything more than an innocuous political joke fallen flat.<\/p>\n

Because the two reposts involved a matter of public concern, the next question is whether they presented a risk to the School Board’s interest in running an efficient workplace that is free of disruption. On this point, no evidence was presented that the two reposts had any meaningful impact on the School Board’s operations or that they created any disruption. Indeed, the bulk of the evidentiary focus was on Caggiano’s other posts (that were deemed non-actionable) and the uncharged incident involving a transgender student. Next to no evidence exists that anyone had ever seen the two posts, let alone been offended to the point that the school workplace was potentially disrupted in any way.<\/p>\n

The notion that Caggiano was himself encouraging violence by reposting the Bernie 2020 T-Shirt joke or was degrading women by reposting the Fox News screenshot is wholly insupportable and wildly off-the-mark. At best, the reposts demonstrated that Caggiano disliked Senator Sanders (for his use of sexist language) and was amused by sophomoric humor (that in no way promoted violence). The posts occurred outside of the school, on Caggiano’s own time and computer, and amounted to little more than harmless political chitchat; they collectively amounted to the proverbial hill of beans.<\/p>\n

Because Caggiano’s two reposts involved a matter of public concern, and the School Board entirely failed to show any risk or actual disruption of its operations due to the reposts, the Pickering-Connick<\/em> balance tips entirely in Caggiano’s favor….<\/p>\n<\/blockquote>\n

Jason E. Bloch and Kelly B. Mathis represent Caggiano.<\/p>\n

<\/p>\n