Labor & Employment Law Daily Wrap Up, INDIVIDUAL RIGHTS—8th Cir.: School principal, reassigned after advocating for LGBTQ+ students, fails to get First Amendment claim revived, (Aug 27, 2025)

By Marjorie Johnson, J.D.

An outside investigator’s report concluded that she created “a negative, divided, and uncomfortable work environment,” and “violated the common-sense expectations of professionalism and ethics generally placed on public school administrators.”

A middle school principal, who claimed she was reassigned to an administrative position in retaliation for advocating on behalf of LGBTQ+ students by displaying a Pride flag and helping students establish a Gay-Straight Alliance, failed to get her First Amendment retaliation claim reinstated on appeal. Affirming summary judgment against her claim, the Eighth Circuit held that her activities regarding the flag and student organization related to her official duties and thus were not protected speech. Moreover, no reasonable jury could conclude that her LGBTQ+ advocacy motivated the decision to remove her as principal since she failed to refute that after teachers complained that she “unfairly or unequally” targeted them and created a “toxic environment,” school officials approved an outside investigation which substantiated their complaints (Thomas v. Marshall Public Schools, No. 24-3176 (8th Cir. Aug. 26, 2025)).

Pride flag display. The principal worked at the middle school for 15 years without incident. In December 2019, she implemented an “inclusion project” that included displaying about 30 flags in a common area of the school, including a Pride flag. Some staff and community members objected to having the Pride flag included, with some teachers expressing concern that she was inappropriately “pushing” LGBTQ+ issues they felt unprepared to discuss with middle schoolers. The controversy initially prompted school officials to remove the Pride flag, but the decision was quickly reversed after consulting with legal counsel.

Gay-Straight Alliance. The controversy subsided in March 2020 when the school closed due to the COVID-19 pandemic. However, when classes resumed in October, the principal helped students establish a Gay-Straight Alliance (GSA). At the time, some teachers complained to the superintendent that she improperly directed them to promote the GSA to students regardless of their personal beliefs, and that in doing so had adopted a “divisive” leadership style which created a negative workplace. After she declined the superintendent’s suggestion that she consider a reassignment, she asked friends and colleagues to write letters of support on her behalf.

In March 2021, the school board hired an outside law firm to conduct a formal investigation and placed the principal on paid administrative leave, prompting her to file a discrimination charge. Meanwhile, outside community members continued to press the board to remove the Pride flag or include opposing viewpoint flags such as a “Straight Pride” flag.

Suspended and demoted. In May, the investigator’s report concluded that the principal’s conduct created “a negative, divided, and uncomfortable work environment,” and that she “violated the common-sense expectations of professionalism and ethics generally placed on public school administrators.” After she declined a severance package, the district suspended her for a week without pay and reassigned her to the position of “coordinator of special projects.”

Procedural history. She filed this lawsuit asserting a myriad of claims. The district court dismissed her federal claims on summary judgment and declined to exercise supplemental jurisdiction over her state-law claims.

First Amendment retaliation. On appeal, she argued that the district court erred in dismissing her First Amendment retaliation claim. The parties’ dispute centered on the first and third prongs of the Garcetti/Pickering framework: whether her speech was made as a citizen or pursuant to official duties and whether it was a substantial or motivating factor in her reassignment.

Pursuant to official duties. The principal first argued that the district court erred by not heeding the Supreme Court’s reminder in Kennedy v. Bremerton Sch. Dist., 597 U.S. 507 (2022), that not everything a public employee says or does in a workplace is government speech. The Eighth Circuit was unconvinced.

But unlike in Kennedy, which involved a football coach who offered a “brief, quiet prayer” at the 50-yard line during his personal time, the principal emailed her staff to inform them that the inclusion project was part of her “professional” goal to ensure “all students feel INCLUDED.” She also used district funds to buy the Pride flag, directed custodial staff to arrange the flags, confiscated a student petition seeking to remove the flag, distributed Pride stickers, and refused requests to install flags of differing viewpoints. “These activities involved the expenditure of public funds or occurred during the performance of [the principal’s] school duties,” the Eighth Circuit concluded, and as such were not protected speech.

She exercised similar authority in facilitating the creation of the GSA student organization. She enlisted district resources and staff, helped the GSA’s organizers navigate school district policy, and used her official channels to direct staff to promote the organization to students. “This conduct is indicative of acting in her role as middle school principal, rather than expressing an opinion as a private citizen,” the appeals court concluded.

Outside coalition. She also claimed that the district violated her First Amendment rights by retaliating against for building a coalition of community members to support LGBTQ+ students and then encouraging the coalition to contact the board in her support through a letter writing campaign and other forms of contact. However, the record did not suggest that any decisionmaker relied on these private communications or the advocacy campaign itself when deciding to take adverse action against her.

Not “substantial or motivating factor.” The district court also did not err in determining that no reasonable jury could conclude her LGBTQ+ advocacy motivated the decision to remove her as principal since “no record evidence indicating the relevant decision makers acted for any reason other than staff morale and the work environment that [she] created.” Moreover, her earliest adverse action occurred more than 13 months after she organized a campaign to lobby the Board—a significant gap that undermines any inference of causation.

The Eighth Circuit also rejected her argument that anti-LGBTQ+ animus infected the complaints, the investigation, and the board’s decision. Finding her speculation insufficient to create a triable issue regarding a retaliatory motive, the appeals court noted that the evidence showed “months of staff frustration with what they perceived as [the principal’s] unprofessional management style based on allegedly harsh or inconsistent treatment.” When teachers complained that she “unfairly or unequally” targeted them and created a “toxic environment,” the superintendent referred the matter to the board, which approved an outside investigation. That investigation, the district court observed, substantiated the staff member’s complaints.

The case is No. 24-3176.

Judge: Erickson, R.

Attorneys: Matthew A. Frank (Premo Frank) and Emma Lerner Freeman (Apollo Law) for Mary Kay Thomas. Jordan Soderlind (Ratwik & Roszak) for Marshall Public Schools, Independent School District 413, and Members of the Marshall School Board.

Companies: Marshall Public Schools, Independent School District 413

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