By Jonathan Bilyk | Legal Newsline
The Center Square

A former Palatine High School teacher who was fired for posting anti-Black Lives Matter content to her personal Facebook page has asked the U.S. Supreme Court to tell lower courts they were wrong to allow the suburban school district for which she worked to toss her lawsuit because the district’s interest in mollifying angry students and community members outweighed the teacher’s First Amendment right to speak.

And the effort by plaintiff Jeanne Hedgepeth to revive her lawsuit against District 211 has gained some hefty legal support from an attorney widely regarded as one of the most influential and successful lawyers to argue before the Supreme Court in the past quarter century.

“Schools have a right to insist that a social studies teacher teach social studies, not math, and to ensure that speech in the classroom is nondisruptive,” Hedgepeth’s lawyers wrote in her petition to the high court. “But they cannot use that limited authority to play censor over speech that occurs outside the classroom via private channels during summer break—particularly when the speech is unrelated to job responsibilities.

“… Whatever latitude public employers may have to restrict speech to avoid genuine workplace disruption, it does not extend to firing employees for engaging in private, off-duty speech simply because school officials must field some complaints from people with little connection to the school.”

Attorneys for Jeanne Hedgepeth filed a petition with the Supreme Court in January, asking the court to take up her appeal.

The court has indicated it will consider Hedgepeth’s petition at a conference of justices on Feb. 20.

The petition landed at the Supreme Court about five months after an appeals panel at the U.S. Seventh Circuit Court of Appeals in Chicago sided with Township High School District 211 in the dispute.

Hedgepeth has been in court against District 211 since July 2021, when she first filed suit against the district in Chicago federal court.

District 211 is the largest public high school district in Illinois. It covers about 12,000 students at five high schools in Chicago’s northwest suburbs, including Palatine, Fremd, Hoffman Estates, Schaumburg and Conant high schools.

Hedgepeth had worked at Palatine High School as a music teacher for 20 years.

According to the federal complaint, Hedgepeth was illegally targeted for termination for comments she posted to Facebook critical of widespread rioting, looting and other unrest in Chicago and elsewhere in the U.S. in 2020 following the death of George Floyd in Minneapolis while in the custody of police.

In those comments, among others, Hedgepeth called for rioters to be “hosed down” with liquid human waste by septic trucks.

She further posted longer comments discussing her displeasure with the use of terms like “white privilege,” critical of those who characterized the U.S. as systematically racist, and questioning why discussions on race cannot include statistical information concerning the murder rate among the black population, nor the abortion rate.

The lawsuit noted all of Hedgepeth’s comments were posted on her personal Facebook page, and she did not identify herself as a teacher or employee of District 211 or Palatine High School.

However, the complaint claimed Hedgepeth was immediately placed under investigation and ultimately fired by the school board, with the board citing her Facebook posts as justification.

In a separate action, Hedgepeth had also sued Tim McGowan, a Black Lives Matter activist who she blamed for launching the effort to get her fired. That lawsuit would eventually be dismissed by a Cook County Circuit Court judge.

McGowan would be elected to serve on the District 211 Board of Education from 2021-2025.

In federal court, Hedgepeth’s lawsuit against District 211 also failed to gain traction.

A federal district judge found Hedgepeth’s free speech rights fall short when compared against the school district’s interest in minimizing disruption to the learning environment.

And that reasoning was upheld on appeal by the Seventh Circuit panel, which agreed District 211 officials did not improperly bow to the demands of activists, students and others when they fired Hedgepeth.

In the ruling, the Seventh Circuit judges said Hedgepeth, as a public school teacher, enjoyed a “unique position of trust,” which should mean the First Amendment protections normally applied to individual speech may not apply to her, should her taxpayer-funded employer determine her speech has caused a community uproar and jeopardizes the school district’s educational environment.

The Seventh Circuit panel said Hedgepeth “lost her job because she posted a series of vulgar, intemperate, and racially insensitive messages to a large audience” within the Palatine High School community.

Hedgepeth and her attorneys, however, assert that reasoning stands First Amendment law on its head and demonstrates a dangerous misinterpretation of Supreme Court precedent.

They particularly asserted the Seventh Circuit misapplied the Supreme Court’s 1968 decision in Pickering v Board of Education. In that case, lower courts, including the Illinois Supreme Court, had ruled a Will County school board had not violated the constitutional rights of school teacher Marvin Pickering, who had written a letter, published by the local newspaper, assailing the school district’s spending priorities and handling of tax increases.

The U.S. Supreme Court, however, ruled the First Amendment protects the teacher from retaliation for exercising his speech rights.

In Hedgepeth’s case, however, the Seventh Circuit asserted the balancing test established in Pickering actually supports District 211’s decision to fire Hedgepeth.

Hedgepeth has been represented from the beginning by attorney Paul J. Orfanedes and others with the conservative political action organization, Judicial Watch.

However, before the Supreme Court her cause has now been taken up by constitutional law attorney Paul D. Clement and others with the firm of Clement & Murphy, of Washington, D.C.

Clement is regarded as one of America’s preeminent Supreme Court litigators. He has argued before the high court more than 100 times and has enjoyed a long record of considerable success.

Of relevance to Hedgepeth’s case, Clement helped secure a Supreme Court victory in 2022 for Joseph Kennedy, a public high school football coach who was fired from his head coaching job in Bremerton, Washington, because he led students in voluntary postgame Christian prayer sessions.

While that case, known as Kennedy v Bremerton, addressed the religious exercise rights of public school employees, Clement and Hedgepeth’s other lawyers say similar protections should apply to public school employees’ First Amendment free speech rights.

“As several circuits have correctly recognized, nothing in Pickering or any other case from this Court suggests that public employers can engage in blatant viewpoint discrimination simply because some in (or even far outside) the workplace do not like an employee’s views,” Hedgepeth’s lawyers wrote. “To the contrary, the Court has repeatedly rejected the notion—including in the public high school setting—that protected speech must ‘give way to a ‘heckler’s veto.’’

“That is particularly true when the speech is far removed from the schoolhouse in every dimension,” they added.

They called on the Supreme Court to use Hedgepeth’s case to send a message to District 211 and other public employers that they cannot trample free speech rights and punish employees for expressing views the school district or community may find unacceptable.

To hold otherwise would all but give public employers a ready vehicle to evade the First Amendment and enforce ideological conformity in schools and other settings.

“… The viewpoint discrimination here is so unmistakable that to leave this decision standing would invite public employers to continue silencing controversial speech by their employees under the guise of ‘avoiding disruption,'” Hedgepeth’s attorneys said.

“That is not a tolerable result for the 22 million public employees in America.”

District 211 and its school board members have not yet responded to the petition. According to the Supreme Court’s online docket, the district waived its right to file a response, unless directed to do so by the Supreme Court after the Feb. 20 conference.