Labor & Employment Law Daily Wrap Up, RETALIATION—9th Cir.: First Amendment rights of assistant principal, demoted after posting about ‘Demtard’ convention, not violated, (Jan 2, 2026)

By Kathleen Kapusta, J.D.

The assistant principal wrote that Michelle Obama was a “hatefull racists bitch” and cautioned that they would be taking people to “the woodshed for a proper education.”

Although a middle school assistant principal’s Facebook post regarding the 2020 Democratic National Convention, which referred to the “Demtard” convention and used other epithets, slurs, and violent language, touched on a matter of public concern, the school district’s interest in creating a safe and inclusive school environment outweighed the public interest commentary contained in his speech, the Ninth Circuit held, affirming summary judgment against his First Amendment retaliation claim as well as the grant of qualified immunity to individual school administrators. Observing that the Pickering balancing test is based on the unique facts of each case, the court stressed that it was not suggesting “that every time employee speech contains slurs or violent language, the government interest will automatically prevail at Pickering Step Two” (Thompson v. Central Valley School District No. 365, No. 24-5263 (9th Cir. Dec. 29, 2025)).

Facebook post. After watching the Democratic National Convention in August 2020, the assistant principal posted on his private Facebook page about the “Demtard” convention. In the post, which he claimed he shared only with his friends, he called Michelle Obama a “hatefull racists bitch,” stated that the former DNC was “just the little bitch of Marxist BLM, Antifa, and Soroas socialist,” and threatened that “the rest of us are sick and tired of your act and going to take you to the woodshed for a proper education,” among other things.

Administrative leave. A coworker who saw his post sent it to another district employee who forwarded it to a district administrator, who shared the post with yet another administrator, who ultimately sent it to the superintendent. Two days after the post, the assistant principal was placed on administrative leave and was barred from being on district property and contacting coworkers, parents, and students.

Investigation. The district then hired an attorney to conduct an independent investigation. Employees she interviewed expressed concern about the hateful and offensive language in the post, including the use of the word “demtard.” In addition, several administrators noted that he had referred to students as “Tide Pod Challenge Kids” and “snowflakes,” used the word “short bus” when referring to students enrolled in special education classes, and asked a Black student if he felt that teachers treated him differently than “normal” students.

The district also conduced “impact interviews” of a sample of board members, administrators, teachers, and parents regarding the potential impact of the post. Many of the interviewees were shocked and concerned about the statements, finding them insensitive and detrimental to the assistant principal’s relationship with staff, students, and community members.

Meeting. During a “notice-and-opportunity” meeting to address the concerns about his post and derogatory comments, the assistant principal claimed his Facebook account had been hacked. A forensic investigator hired by the district, however, found no evidence to support this. The investigator also noted that the assistant principal was reluctant to hand over his electronic devices. After a second notice-and-opportunity-meeting to address allegations the assistant principal interfered with the investigation and lied about his Facebook account being hacked, he was transferred to a teaching position.

Lower court proceedings. Alleging violations of his First Amendment rights, he sued the district and several individual administrators. The district court ultimately granted summary judgment to the district and also found that the individual school administrators were entitled to qualified immunity.

Pickering Step One. On appeal, the Ninth Circuit found the assistant principal’s post, which was made on his private Facebook account and criticized the Democratic National Convention, was private speech on a matter of public concern. The court next assumed without deciding that being placed on administrative leave could constitute an adverse action as he was banned from being on district property and contacting other district staff. Finally, the court found he sufficiently established the post was a substantial or motivating factor in placing him on administrative leave.

Nonetheless, the court found the district was justified in putting the assistant principal on administrative leave because it sufficiently established that its interests in ensuring a safe and inclusive educational environment outweighed his First Amendment interests.

Pickering Step Two. While speech about matters of public concern “occupies the highest rung of the hierarchy of First Amendment values,” the court observed, the “‘apex’ of First Amendment protection is reserved for political speech that addresses problems at the government agency where the employee works.” The court noted, however, that the protection afforded to a government employee’s speech may be lessened where the speech is derogatory in nature.

In Grutzmacher v. Howard, the court observed, the Fourth Circuit found at least some of a county fire department employee’s string of Facebook posts, comments, and “likes” were on a matter of public concern because, as a whole, they addressed gun control. And while some of the comments were derogatory, racially charged, or violent, the court found the Pickering balancing test favored the county at Step Two because the employee’s Facebook activity was “not of the same ilk” as cases where a government official’s speech was “grounded... in specialized knowledge,” and the county’s interest in efficiency and preventing disruption “outweighed the public interest commentary contained in [p]laintiff’s Facebook activity.”

Moreover, said the Ninth Circuit, in Hernandez v. City of Phoenix, it assumed without deciding that an employee’s speech was of “comparatively low value” under Pickering Step Two when the employee’s speech addressed a matter of public concern but in a way expressing racial and religious hostility.

Here, said the court, the assistant principal’s post was not grounded in specialized knowledge or based on insight he gained into the school system while in his job. Although his post, read broadly, touched on a matter of public concern, his use of disability-related slurs like “demtard” and of violent language suggesting taking individuals “to the woodshed for a proper education,” are not speech entitled to the highest constitutional protection, the court concluded, giving little weight to his interest in his speech under Pickering Step Two.

District’s interests. As to the district’s interests, the court noted that it reasonably predicted that a Facebook post by a school administrator using disability-related slurs and violent language was likely to disrupt its operations, a disruption that was intensified and reinforced by the assistant principal’s engaging in such speech while serving in a public-facing role that undermined the district’s resolution to foster a safe and supportive educational environment.

Though the assistant principal, as a district employee, had a responsibility to uphold the district’s commitment to equity and inclusion, his derogatory and violent language in the Facebook post had the ability to substantially disrupt the school’s orderly operation. Indeed, various staff members and others expressed that the post’s language did not reflect the district’s core values, negatively portrayed the district, and ran counter to its resolution recommitting to equity and inclusion. Staff members also believed his ability to discipline students would be impacted if they learned of the post and they questioned his ability to work effectively with students and parents, or to act as a school representative. “As such,” wrote the court, his “statements can be fairly viewed as creating disharmony among co-workers and detrimentally impacting his close working relationships requiring loyalty and confidence.”

Finally, the court pointed out, the assistant principal worked in a public-facing and supervisory position and his comments conflicted with the district’s resolution recommitting to equity and inclusion and to “fostering an equitable school culture.” In addition, staff members were concerned that he engaged in speech inconsistent with the district’s values while he served as a representative of the school leadership. Finding the district sufficiently showed a reasonable prediction of disruption under Pickering Step Two, and giving the assistant principal’s speech little weight under the Pickering balancing test, the court held that the district’s interest in creating a safe and inclusive school environment outweighed the public interest commentary contained in the assistant principal’s speech.

The case is No. 24-5263.

Judge: Gould, R.

Attorneys: Michael B. Love (Riverside NW Law Group) and Robert F. Greer (Etter McMahon Lamberson Van Wert & Oreskovich) for Randy Thompson. Michael E. McFarland (Evans Craven & Lackie) for Central Valley School District No. 365, Ben Small, Debra Long, Mysti Reneau, Keith Clark, Tom Dingus, and Cynthia McMullen.

Companies: Central Valley School District No 365

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