[00:00:00] Speaker 03:
The next case on calendar for argument is Donniano versus Grants Pass School District Number 7.

[00:00:37] Speaker 03:
everyone's gonna have to find a seat please somewhere if you're unable to get a seat you'll have to stay outside and listen to the proceedings

[00:01:06] Speaker 04:
couple more seats here.

[00:01:08] Speaker 03:
Everyone please have a seat.

[00:01:26] Speaker 04:
There are some seats down here, but

[00:01:35] Speaker 03:
Everyone has to have a seat.

[00:01:55] Speaker 03:
Is the feed on?

[00:01:57] Speaker 03:
Is the feed on in the next room?

[00:01:59] Speaker 03:
All right.

[00:02:00] Speaker 03:
Thank you.

[00:02:00] Speaker 03:
All right.

[00:02:02] Speaker 03:
Council for Appellant, please approach and proceed.

[00:02:12] Speaker 00:
Thank you, your honor.

[00:02:13] Speaker 00:
May it please the court, Matthew Hoffman for plaintiffs, Katie Medard and Rachel Sager.

[00:02:18] Speaker 00:
The broad rule adopted by the district court and defendants will stop teachers from speaking out about nearly any important issue, no matter what side they're on.

[00:02:27] Speaker 00:
Consider an Idaho teacher concerned about that state's law that limits students from accessing bathrooms consistent with their gender identity.

[00:02:34] Speaker 00:
She publishes video on her Facebook page advocating that her school district and others across Idaho return to their previous policy.

[00:02:43] Speaker 00:
That policy had allowed for students to access bathrooms based on their gender identity, so those who identified as girls could use the female restrooms and locker rooms.

[00:02:52] Speaker 00:
In response, around six of her colleagues complained that they are offended by her views, that they agree with Idaho's current law, and that her proposal discriminates against biological females.

[00:03:02] Speaker 00:
Members of the community also email and call the district to complain about the teacher advocating for something they believe threatens their children.

[00:03:10] Speaker 00:
Under defendant's rule, she could be fired.

[00:03:13] Speaker 00:
But that would be unconstitutional.

[00:03:15] Speaker 00:
And so is what defendants did here.

[00:03:18] Speaker 00:
The district court's opinion greenlights Heckler's vetoes.

[00:03:21] Speaker 00:
It allows a handful of people who merely dislike what others have to say to get respected educators fired.

[00:03:27] Speaker 00:
It discourages teachers who the Supreme Court has said knows most about the best policy for their students from offering creative solutions, even when their school districts, like here, encourage them to offer policy solutions.

[00:03:39] Speaker 00:
When the government retaliates because of and censors protected religious speech and violates federal and state free speech protections, equal protection law, and Title VII, this court should reverse.

[00:03:51] Speaker 03:
Counsel, where in the record can we go to verify that the action was based on the religion of the plaintiffs?

[00:04:03] Speaker 00:
So Your Honor, the defendants were aware of the plaintiff's religious beliefs.

[00:04:07] Speaker 03:
Well, but I'm asking you, where in the record

[00:04:09] Speaker 03:
Can we go to confirm that the actions taken were motivated by anti-religious beliefs?

[00:04:17] Speaker 00:
So at 2ER 58 and 72, Ms.

[00:04:20] Speaker 00:
Meadard informed Principal Blanchard that her religious beliefs precluded doing what the district was asking her to do.

[00:04:29] Speaker 00:
At 2ER 216, Superintendent Kolb told Ms.

[00:04:34] Speaker 00:
Sager that her exercise of religious freedom at work was tricky.

[00:04:38] Speaker 00:
And then, Def.

[00:04:39] Speaker 00:
Blanchard placed Rachel and Katie on leave in response to complaints that they encroached their religious beliefs onto others.

[00:04:44] Speaker 00:
So that's 2ER72 and 107.

[00:04:48] Speaker 00:
And then Defendant Cole recommended their termination because of their, quote, discriminatory policy, which is 2ER158.

[00:04:56] Speaker 00:
And then, Your Honor, I also direct you to the EEOC versus Abercrombie and Fitch Supreme Court opinion.

[00:05:01] Speaker 00:
And in that case, the Supreme Court was clear that Title VII doesn't contain a knowledge requirement per se.

[00:05:08] Speaker 00:
It's more that whether or not the defendants suspected there was a religious belief at play.

[00:05:13] Speaker 00:
And I think all that evidence shows that they understood that this speech was based on their religion, yet they still retaliated and discriminated against them because of it.

[00:05:22] Speaker 02:
So what you didn't recite, I don't think, is the piece in the record when I believe it was Ms.

[00:05:27] Speaker 02:
Meadart was being interviewed as part of the investigation or something and questioned about, well, are your religious beliefs going to interfere with you being able to do your job?

[00:05:37] Speaker 02:
And there was a series of questions about that.

[00:05:39] Speaker 02:
because someone else had raised that concern.

[00:05:42] Speaker 02:
And then I think the questioner said, you know, I'm having concerns about this in response to her answer of, no, it's not going to impact my ability to do the job.

[00:05:51] Speaker 02:
Are you relying on that as part of the Title VII claim?

[00:05:54] Speaker 00:
Yes, that's correct, Your Honor.

[00:05:55] Speaker 00:
That is also evidence of religious discrimination because that was defendant Blanchard who placed Ms.

[00:06:00] Speaker 00:
Medard and Ms.

[00:06:00] Speaker 00:
Sager on leave

[00:06:01] Speaker 00:
And he said that he himself had concerns that their religious beliefs precluded them from being public school teachers.

[00:06:07] Speaker 02:
And of course, that sort of bumps up right against the Hiddle case, which is a recent opinion out of this court.

[00:06:12] Speaker 02:
And you would distinguish that how?

[00:06:15] Speaker 00:
I distinguish it because in Hiddle, this court was very clear that just that the supervisors had received complaints about this religious conduct, and they did not adopt those, you know, complaints or that discriminatory animus themselves.

[00:06:28] Speaker 00:
Rather, they just kind of, in a sense, parroted other people's words.

[00:06:30] Speaker 00:
But here, what the evidence, as Your Honor pointed out, shows is that, you know, Principal Blanchard said, I have concerns that you cannot be a public school teacher because of what you said.

[00:06:40] Speaker 00:
Similarly, Superintendent Kolb expressed the same things, that they had discriminatory actions, and then the board members also asked them how they could continue to, you know,

[00:06:50] Speaker 00:
teach students and that shows their own discriminatory animus as well.

[00:06:54] Speaker 00:
So it was unlike in Hiddle where they just took other people's complaints and asked about them, they adopted them as their own and used that to retaliate against Ms.

[00:07:03] Speaker 00:
Meadard and Ms.

[00:07:03] Speaker 00:
Sager.

[00:07:04] Speaker 02:
Can we go back to the First Amendment issue for a second?

[00:07:09] Speaker 02:
So the lie is that when a government is acting as an employer as it was here, that disruption, you know, we weigh government interests in maintaining order basically in the workplace.

[00:07:20] Speaker 02:
And so we have to consider disruption.

[00:07:21] Speaker 02:
And my understanding of the sort of statement of that rule is we're looking for an actual material substantial disruption.

[00:07:27] Speaker 02:
You referenced a heckler's veto.

[00:07:29] Speaker 02:
I'm not, it seems that the heckler's veto idea applies differently in this context because parents, community,

[00:07:39] Speaker 02:
Schools have to care about those viewpoints, the viewpoints of parents and the viewpoints of the community and need the trust of those stakeholders, so to speak.

[00:07:50] Speaker 02:
And so how people are reacting to what's going on in school is relevant in this balancing as far as I can tell in terms of figuring out if this disruption standard is met.

[00:07:59] Speaker 02:
So I'm interested in how you address, like, what does heckler's veto even mean in this particular context when we're talking about schools?

[00:08:06] Speaker 00:
Two responses to that, Your Honor.

[00:08:08] Speaker 00:
So in Dodge, this court was clear that I don't think it used heckler's veto itself, but it said, mere disagreement with a point of view cannot be the basis for adverse action.

[00:08:17] Speaker 00:
And so that's how the heckler's veto applies in this situation.

[00:08:20] Speaker 00:
Just people complaining that they didn't like what was said cannot be sufficient basis to find any disruption at all.

[00:08:26] Speaker 05:
But that's not true.

[00:08:27] Speaker 05:
I think you're painting with an overly broad brush because there are cases in which complaints by students, colleagues, parents, community members does count as disruption, even if the reason why they're complaining is in part because they object to the viewpoint being expressed.

[00:08:48] Speaker 05:
And so I think there's a material factual difference here between cases where the complaint

[00:08:55] Speaker 05:
itself is the only thing, right, a complaint.

[00:08:58] Speaker 05:
I think in the other cases where we've said complaints or, you know, mere disagreement is not enough, that is literally the only thing that is cited to as disruption.

[00:09:10] Speaker 05:
But here we have students protesting, there's press, there's the fact, the undisputed fact that the plaintiffs

[00:09:20] Speaker 05:
did a lot of this activity on work time, on school property, with school equipment, spoke to other staff on work time, and that was part of the disruption cited in the report.

[00:09:37] Speaker 00:
So the point, and this also goes to Judge Forrest's question, I think if, Your Honor, you look to Riley's, and Riley's focused on the nature of those complaints.

[00:09:44] Speaker 00:
So it wasn't just, you know, the 1,300 social media repostings, but what Riley's looked to was the parents and students objecting and saying, you know, my child can no longer go to class, can no longer go to these field trips.

[00:09:56] Speaker 00:
And so that kind of separates the heckler's veto in this case.

[00:09:58] Speaker 00:
If you're just objecting to what they said, which is Katie and Rachel's colleagues said, I don't like what you have to say.

[00:10:04] Speaker 00:
But there was not a single North middle school student or parent complained about that.

[00:10:09] Speaker 00:
They did not threaten to leave class or their parents did not want to pull them.

[00:10:13] Speaker 05:
And so the investigators report sites that there were student protests happening.

[00:10:22] Speaker 00:
One student protest happened when Rachel and Katie were reinstated.

[00:10:25] Speaker 00:
So that could not have been the basis for child reaction.

[00:10:28] Speaker 05:
which was issued before they were even terminated, refers to student protests and an exhibit of their interview with other staff saying they saw that students were protesting.

[00:10:42] Speaker 05:
So it's not only student protests that happened after they were reinstated.

[00:10:51] Speaker 00:
Your Honor, I'm not aware of that in the record, but assuming that would be the case.

[00:10:57] Speaker 00:
I mean, I do know the protest on the record occurred off campus.

[00:11:00] Speaker 00:
It was with regard to high school students.

[00:11:02] Speaker 00:
So again, it wasn't at North Middle School.

[00:11:04] Speaker 02:
I wonder what's being, how the word protest is being used, right?

[00:11:08] Speaker 02:
Because I do think there were news reports about the, which I think referred to a silent protest of students writing their preferred pronoun on their foreheads or wearing some sort of message on their clothing or something that wasn't like,

[00:11:20] Speaker 02:
picketing, so to speak, and that's often what you think of when you hear the word protest, which I believe is sort of what happened later.

[00:11:27] Speaker 02:
That's the more traditional view of protest.

[00:11:29] Speaker 02:
Is that what that means, or do you have any idea, do we know in the record what the reference that Judge Sung is referencing means?

[00:11:37] Speaker 00:
No, I'm not aware of exactly what that protest would mean.

[00:11:40] Speaker 00:
I mean, to the extent it's a silent protest under Tinker, that would not, you know, constitute substantial disruption, just wearing a passive protest.

[00:11:48] Speaker 00:
I would say, too, that Defendant Cold and Blanchard, they admitted and conceded that after Spring Break and after the publication of the I Resolve Movement,

[00:11:55] Speaker 00:
The schools operated fine.

[00:11:56] Speaker 05:
There's no interruption of the classes or teachers And the district is a form of protest for the students to sign any protest I think tinker would just say the students protests themselves were not So disruptive that the school could prohibit the students from engaging in that activity But I don't think it says anything about the pinkering and that pickering analysis of what how disruptive the plaintiffs First amendment activity was on the school environment

[00:12:25] Speaker 05:
So the student's response to this faculty speech is something, is my understanding under the Pickery analysis that we should consider as a form of disruption.

[00:12:36] Speaker 00:
I think to the extent that it would interfere, you know, what this court has made clear, interfere with the educational functioning of the school, it could be a consideration, but I don't think the evidence of that is here at all because it's not clear, you know, what protests, you know, class time interrupted, and the defendants themselves conceded that the classes continued, you know, on time and at North Middle School.

[00:12:56] Speaker 03:
But in any event, counsel, wouldn't that be a question of fact?

[00:13:00] Speaker 03:
that would not be amenable to summary judgment?

[00:13:04] Speaker 00:
Your Honor, I do think to the extent that there were protests, it would be a material issue dispute of fact.

[00:13:10] Speaker 00:
That means that summary judgment would not be appropriate here.

[00:13:12] Speaker 00:
And then also, I think, to Judge Sung's point about the policy violations, the district policy itself allowed for de minimis personal use of district resources.

[00:13:20] Speaker 00:
Board members said he thought that the use was de minimis.

[00:13:23] Speaker 00:
It was, you know, a few emails and talking to colleagues during break time.

[00:13:27] Speaker 00:
So that was allowed under district policy.

[00:13:29] Speaker 00:
Defendant Colbin Blanchard knew in advance about the policy proposals.

[00:13:33] Speaker 00:
Rachel and Katie brought them to them.

[00:13:35] Speaker 00:
And they never cautioned Rachel or Katie to stop or said what they were doing is violating district policy.

[00:13:39] Speaker 00:
because the district policy did encourage them to bring policy solutions, and that's what they're doing.

[00:13:44] Speaker 00:
And, you know, what they're advocating for was a return to the district policy of just a month prior of going back to that policy, and so it was consistent with how the district had been applying its policy.

[00:13:56] Speaker 03:
Council, did you challenge the district policy that prohibited speaking on matters of public concern?

[00:14:04] Speaker 03:
Did you challenge that policy as being unconstitutional?

[00:14:07] Speaker 00:
We did challenge it under the First Amendment clause, yes.

[00:14:11] Speaker 00:
And the district policy is an ex-ante employee speech restriction.

[00:14:15] Speaker 00:
It applies both on and off campus during work time, break time, and all of the above.

[00:14:20] Speaker 00:
And it fits under what this court has invalidated in Brony v. City of Springfield and Mooney v. Tice, where it targets controversial social and political issues, which is a content and viewpoint-based restriction with no boundaries.

[00:14:35] Speaker 05:
In the record, where did you brief that below?

[00:14:37] Speaker 00:
That was in the summary judgment motion at 2ER 274 to 76, I believe it shows, and the First Amendment violations of the policy.

[00:14:47] Speaker 00:
And I think to the extent there's an issue over that, the district court did a rule on pass upon this issue, and so it is preserved for appellate review.

[00:14:55] Speaker 00:
It said that this claim fails as a matter of law under public employee speech precedent.

[00:14:59] Speaker 00:
So it's preserved and it's not.

[00:15:01] Speaker 02:
If we agree with that, if we agree with that, that somehow the district court resurrected what otherwise would have been a waived claim, should we address it or should we remand it?

[00:15:11] Speaker 00:
I think it would be appropriate for this court to address it, because it's clear under this court's clear precedent that the policy is invalid.

[00:15:19] Speaker 00:
But to the extent that this court has doubts about it, I think remand is also appropriate on that question to allow the district court to properly consider it.

[00:15:25] Speaker 00:
But it did adopt defendant's analysis saying that it was a constitutional employee speech restriction.

[00:15:31] Speaker 00:
But it's far afield from what this court has upheld previously.

[00:15:34] Speaker 02:
That's a little bit of a struggle.

[00:15:35] Speaker 02:
I mean, I think that's sort of correct.

[00:15:40] Speaker 02:
To say that the district court passed on the merits, I think you probably have to classify what the district court did as doing that, but it's like three sentences long, right?

[00:15:49] Speaker 02:
There's no real analysis or development of that, which is why I'm sort of trying to figure out what's best here in terms of, again, if we get that far,

[00:15:57] Speaker 02:
What would we do with that?

[00:15:58] Speaker 02:
We would have to be doing it full cloth, essentially, because there wasn't briefing below.

[00:16:04] Speaker 02:
The other side really hasn't briefed that issue with any depth.

[00:16:09] Speaker 02:
And we don't have any depth analysis of the district court, so we're sort of on our own there if we do something with it.

[00:16:15] Speaker 00:
Well, I think, I mean, in the Citizens United case we cited, even if the analysis is not substantial, it's still preserved.

[00:16:22] Speaker 00:
I would say, too, this court has many public employee restriction free speech cases which provide a guide.

[00:16:28] Speaker 00:
And the evidence is in the record that Superintendent Kolb said there's a debate about what could be controversial, that different people have different opinions on what is controversial.

[00:16:37] Speaker 00:
that almost any issue of public importance could be controversial and therefore banned by the policy.

[00:16:42] Speaker 00:
So all that evidence is in the record, which does make it appropriate for this court to pass upon it.

[00:16:48] Speaker 00:
And there is, again, from this court's precedent, clear public employee speech restriction guidelines.

[00:16:53] Speaker 05:
Can you address the qualified immunity issue?

[00:16:55] Speaker 05:
So even assuming there is a violation here under the First Amendment, what's your best argument for this being clearly established when the court has said this is a fact-intensive analysis and there are very few cases in which the defendant wouldn't be entitled to qualified immunity?

[00:17:14] Speaker 00:
Your Honor, I would direct you to Dodge.

[00:17:17] Speaker 00:
In that case, it said that the conduct there happened in 2019, well before this conduct in 2021.

[00:17:22] Speaker 00:
And at that point, it was clearly established by Settlegood and Pickering and Tinker that just disagreement with the viewpoint expressed alone cannot be substantial disruption and denied qualified immunity on the basis.

[00:17:35] Speaker 05:
So Dodge is your closest factual analog?

[00:17:38] Speaker 00:
Yes, Your Honor.

[00:17:40] Speaker 02:
So I want to press you a little bit on that.

[00:17:44] Speaker 02:
I think if we didn't have the video and sort of the more public campaign by your clients, then settle good would control this case because it would be an internal, I mean, settle good was, you know, I'm upset with this school policy.

[00:17:56] Speaker 02:
I go to my administrators and we have a discussion about that and people are upset, but it's at the administrative level.

[00:18:02] Speaker 02:
So as Judge Sung references, we are instructed that these are facts specific questions when we're applying Pickering.

[00:18:08] Speaker 02:
So with that new fact in this case of a public campaign in some ways,

[00:18:14] Speaker 02:
Why doesn't that trigger qualified immunity?

[00:18:21] Speaker 00:
Your Honor, I assume into my rebel time, but I think you can look at the timeline of events here.

[00:18:25] Speaker 00:
Defendants had five complaints from colleagues, which is very similar to Dodge, when they placed them on administrative suspension, which is an adverse action.

[00:18:33] Speaker 00:
Those colleagues merely objected to the point of use.

[00:18:36] Speaker 00:
At that point, Defendant Kolb actively solicited more complaints.

[00:18:39] Speaker 00:
He broadcast that out.

[00:18:41] Speaker 00:
That was posted on social media with Kolb and Blanchard's email addresses asking people to contact them.

[00:18:47] Speaker 00:
Media contacted them afterwards, but that's after Superintendent Kolb himself made it public.

[00:18:52] Speaker 00:
So plaintiffs spoke on their personal social media platform, but it was Defendant Kolb himself who sent it out.

[00:18:57] Speaker 00:
And then two, the complaints that are in the record that came in, which is far less than the 75 to 150, showed that people just disagreed with the viewpoint.

[00:19:06] Speaker 00:
They didn't like what they said.

[00:19:07] Speaker 00:
And so in that case, again, it's analogous to Dodge, because they're just disagreement with the viewpoints.

[00:19:12] Speaker 00:
It's not like those other cases and complaints where it said, students can't go to class, parents don't want their kids to be taught by these teachers.

[00:19:20] Speaker 00:
None of that evidence is in the record.

[00:19:21] Speaker 00:
All it shows is disagreement with the viewpoint.

[00:19:23] Speaker 03:
So counsel, for qualified immunity, the cases don't have to be identical.

[00:19:27] Speaker 03:
in terms of the fact that it has to be clearly established that the conduct at issue is unconstitutional.

[00:19:37] Speaker 00:
That's correct, Your Honor.

[00:19:38] Speaker 00:
This court and the Supreme Court said just the contours of the right must be clearly established.

[00:19:41] Speaker 00:
There need not be exact factual similarity.

[00:19:44] Speaker 00:
And so there's not factual similarity, but it's effectively like the complaints in Dodge.

[00:19:48] Speaker 03:
Similar, it's not identical.

[00:19:50] Speaker 00:
That's correct, Your Honor.

[00:19:51] Speaker 02:
Before you sit down, I have one more thing to go back to the Title VII.

[00:19:55] Speaker 02:
My understanding from the complaint is you're asserting that against the district and not the individual defendants.

[00:20:00] Speaker 02:
Is that right?

[00:20:01] Speaker 00:
That's correct, Your Honor.

[00:20:02] Speaker 02:
So we don't have to worry about qualified immunity as to that?

[00:20:04] Speaker 00:
There's no qualified immunity under Title VII.

[00:20:07] Speaker 00:
That's correct.

[00:20:07] Speaker 00:
Thank you.

[00:20:08] Speaker 00:
Thank you, Your Honor.

[00:20:08] Speaker 03:
Thank you, Counsel.

[00:20:10] Speaker 03:
We'll hear from the district.

[00:20:26] Speaker 01:
May it please the court, Beth Plass on behalf of defendants, appellees.

[00:20:31] Speaker 01:
This case concerns the temporary termination of a middle school teacher and administrator for multiple policy violations arising from their on and off campus campaign to limit the rights of a public school district's most vulnerable 11 to 14-year-old students.

[00:20:47] Speaker 03:
Counsel, let me just ask you, what's a temporary termination?

[00:20:52] Speaker 01:
In this case, the plaintiffs were, their employment was terminated in July of 2021.

[00:20:58] Speaker 03:
Was it intended to be temporary at the time?

[00:21:02] Speaker 01:
It was not.

[00:21:03] Speaker 01:
Okay.

[00:21:03] Speaker 01:
And then they were reinstated in November of 2021, and because of how schools work, essentially they were out of work for, you know,

[00:21:11] Speaker 03:
So it was a termination, and then they were reinstated.

[00:21:14] Speaker 01:
And then they were reinstated, correct.

[00:21:17] Speaker 01:
A couple of key background points that apply to most of the claims in this case and make this case materially different than many that have come before the court before.

[00:21:27] Speaker 01:
The appellants take great umbrage with the labeling of their activities as, quote, discriminatory or, quote, anti-trans.

[00:21:35] Speaker 01:
However you want to label what they were doing,

[00:21:38] Speaker 01:
The legal background is a key point, was a key to my clients in this case.

[00:21:44] Speaker 01:
In 2020, a district court judge in the District of Oregon had issued an opinion stating that under Oregon's public accommodation anti-discrimination law, transgender students were entitled to use the bathroom that aligned with their gender identity.

[00:21:58] Speaker 01:
That case is Gauley versus the Dallas School District.

[00:22:02] Speaker 01:
It's an opinion by Judge Hernandez in the District of Oregon.

[00:22:05] Speaker 01:
The opinion was affirmed by the Ninth Circuit.

[00:22:08] Speaker 01:
Second, there's no dispute that the plaintiffs were advocating to take away, again, the right that Judge Hernandez had announced.

[00:22:18] Speaker 03:
Counsel, is that a fair characterization of their argument that they wanted to take away that right?

[00:22:24] Speaker 03:
Didn't they have alternatives that they posed that would allow options for students who wanted to use the bathroom?

[00:22:33] Speaker 03:
The issue is, were they, in your view,

[00:22:37] Speaker 03:
violated the law simply because they had alternatives?

[00:22:42] Speaker 01:
My argument is not that they were violating the law because they were proposing alternatives.

[00:22:49] Speaker 01:
My point is simply the context when you're looking at how my clients analyze this case in the moment and how they characterize the plaintiff's activities.

[00:22:58] Speaker 01:
I don't think it's fair to say that when my clients are saying, we believe that the law said what they would

[00:23:07] Speaker 01:
advocating for was discriminatory, that that somehow then imposes animus on my clients.

[00:23:12] Speaker 03:
It just means this is- Well, if your clients interjected religion into it, wouldn't that then be reasonable for the proponents to say that there was some animus against their religious leanings?

[00:23:28] Speaker 01:
I don't think that that is inaccurate.

[00:23:31] Speaker 01:
I think as a hypothetical, the answer to that question is yes, but I don't think the factual record here supports that.

[00:23:37] Speaker 03:
Well, opposing counsel pointed to some instances in the record where there were statements made about the religious leanings of the plaintiffs and whether or not they could actually continue to function as teachers because of their religious views.

[00:23:52] Speaker 03:
So why did the district interject their religion into the discussion at all?

[00:23:58] Speaker 01:
I think as was pointed out in the briefing, that those questions arose in the context of a complaint that was made by someone else.

[00:24:07] Speaker 01:
And so the district is saying, what is your response to this?

[00:24:10] Speaker 01:
And certainly, if there is a concern that

[00:24:13] Speaker 01:
a teacher will not follow then existing law because of their religious beliefs, that's something a school district needs to know about, whether that means termination or whether it means we need to accommodate them.

[00:24:26] Speaker 01:
The point is we need to have public school district, public school teachers following the law, and if they can't for whatever reason, we need to know about it and potentially accommodate it or take action.

[00:24:36] Speaker 02:
Separate from this policy dispute that arose between the plaintiffs and their employer, this district,

[00:24:42] Speaker 02:
Is there anything in the record to indicate that these teachers had any sort of complaints or inappropriate conduct with students?

[00:24:50] Speaker 02:
Directly with students, no.

[00:24:53] Speaker 02:
There is in the record indication that I think Ms.

[00:24:56] Speaker 02:
Meadart had interactions with a transgender student previous, correct?

[00:25:01] Speaker 01:
I think there was a complaint made by a transgender staff member.

[00:25:06] Speaker 01:
I think that's what you're referring to.

[00:25:07] Speaker 01:
I'm not, but what's the timing of that?

[00:25:10] Speaker 01:
That all occurred at the same time, and it was investigated by the school district.

[00:25:14] Speaker 01:
It was not substantiated.

[00:25:15] Speaker 02:
So what I'm referring to is I think in the record it is true that before this whole thing blew up,

[00:25:20] Speaker 02:
Miss Medard, at least, and maybe both of them, but that's the one I remember, had had interactions with a transgender student in her role as a teacher, and that there's nothing in the record to indicate that she made that student feel unwanted, unwelcome, and, you know, unsafe, that there were no complaints about that.

[00:25:37] Speaker 02:
Is that correct?

[00:25:37] Speaker 01:
I think it's correct to say that there are no complaints in this record showing by transgender students prior to this claiming that they felt mistreated by Ms.

[00:25:48] Speaker 01:
Meadart.

[00:25:49] Speaker 01:
Or unsafe.

[00:25:50] Speaker 01:
Or unsafe.

[00:25:51] Speaker 01:
But of course, they're interacting with transgender students whether they might know it or not at any time.

[00:25:57] Speaker 01:
The issue that is in the record is,

[00:26:00] Speaker 01:
In the video, Ms.

[00:26:01] Speaker 01:
Meadart describes a specific situation with a transgender student, which the school district found to be problematic and objectionable.

[00:26:09] Speaker 01:
Of course, now in the record, she's walked back, whether or not that was a specific instance.

[00:26:15] Speaker 01:
But the investigator found that her statement, certainly she says in the video, that she is describing a specific situation.

[00:26:23] Speaker 01:
And the investigator found that her later denials of that were not credible.

[00:26:27] Speaker 01:
And that was one of the reasons why her employment was terminated.

[00:26:30] Speaker 02:
So what do we do with that?

[00:26:31] Speaker 02:
I mean, I think that that's correct, that the termination decision sort of lists multiple grounds.

[00:26:37] Speaker 02:
The way this case has been litigated, I don't see the district sort of hanging its hat on policy violations.

[00:26:43] Speaker 02:
I see the district as sort of fighting this speech war.

[00:26:47] Speaker 01:
Well, because there's no avoiding it on summary judgment, our position is any of those grounds would be sufficient.

[00:26:54] Speaker 01:
And if the panel reverses and we go back, we will certainly raise the argument of, hey, we would have terminated you for the on-campus misuse of resources and all the other reasons.

[00:27:08] Speaker 01:
But it's unavoidable because of the claims that they put at issue for us to address the First Amendment issues, and that's why

[00:27:15] Speaker 02:
Why is that if a part of the test is even if we violated your First Amendment reasons, your First Amendment rights, if we had another basis to terminate you and we did, then we don't have a First Amendment violation?

[00:27:27] Speaker 02:
It seems like you could have litigated the case that way, but you haven't.

[00:27:29] Speaker 01:
No, because, well, in my view, that's not correct, because under the sequential steps, under like Cooley versus Eng, you have to go through all of the steps.

[00:27:39] Speaker 01:
And the last thing is we would have terminated you anyway, and that's always a fact question.

[00:27:43] Speaker 01:
So it's just not appropriately before the court when we move for summary judgment, essentially, on the pickering disruption charge.

[00:27:52] Speaker 01:
And certainly, we have argued in all of our briefing that we terminated you for all of these reasons.

[00:27:58] Speaker 01:
We have not limited it just to that reason, but there's no avoiding it when you're in the summer.

[00:28:04] Speaker 05:
We're standing under the last step of the pickering analysis is we're weighing the district's interest in responding to disruption and other

[00:28:16] Speaker 05:
and the interference with school operations against the plaintiff's interest in commenting on the public issue.

[00:28:28] Speaker 05:
And so my understanding is the district court just assumed

[00:28:34] Speaker 05:
comment on a matter of public importance, all those issues, and it came down to the last step.

[00:28:40] Speaker 05:
So is your argument, I mean, what disruption, I guess, is the school district relying on in that last step of the Pickering and Nonsense?

[00:28:52] Speaker 01:
Absolutely.

[00:28:53] Speaker 01:
So we are relying on the complaints from the co-workers, students, and the community.

[00:28:59] Speaker 01:
And what makes this case different than some cases that have been cited is the volume of those complaints, the record evidence is that there were between 75 and 150 lodged to the superintendent, 50 to the finance and operations officer, and then there were the ones that are documented in the reports.

[00:29:18] Speaker 03:
How many of those were from parents of the students at the school?

[00:29:23] Speaker 01:
I think that the complaints to the superintendent and the operations officer do not specify parents in the school.

[00:29:31] Speaker 03:
Well, wouldn't the disruption have to be to the school?

[00:29:35] Speaker 01:
But I think it can be both, because the school district is still dealing with, part of the disruption is dealing with the complaints and what's hitting the school.

[00:29:46] Speaker 01:
So I don't think it so much matters.

[00:29:48] Speaker 01:
But certainly there is evidence in the community, as was discussed earlier, the community is part of the school district.

[00:29:56] Speaker 01:
And I also think in this case,

[00:30:01] Speaker 01:
It's not dispositive that you don't have a student of a transgender parent complaining, right?

[00:30:07] Speaker 01:
Or that we didn't, to the extent that exists, put it in the record.

[00:30:12] Speaker 01:
Schools make choices about things, and parents make choices about what's in the best interest of their kid.

[00:30:17] Speaker 01:
In a situation like this, you have a middle school administrator and a middle school teacher who have made a campaign

[00:30:24] Speaker 01:
One of them has talked about a transgender student specifically, and to suggest then that the school district or the parent of a transgender student is supposed to go on the record against this.

[00:30:35] Speaker 03:
Well, they don't have to go on the record.

[00:30:36] Speaker 03:
They could go to the administration privately.

[00:30:40] Speaker 03:
But part of the district's rationale was that the students didn't feel safe.

[00:30:47] Speaker 03:
And so that would be in the record.

[00:30:49] Speaker 03:
That would be important to have something in the record

[00:30:52] Speaker 03:
as to how the safety of the students was compromised.

[00:30:56] Speaker 01:
And I think for that point, we would simply rely on that under Pickering, the district is entitled to discipline whether it is disruptive or potentially disruptive.

[00:31:09] Speaker 01:
It doesn't have to be actual.

[00:31:11] Speaker 01:
And I think there are cases certainly out of other circuits involving speech cases, specifically involving speech by teachers, where

[00:31:24] Speaker 01:
the court says, wait a minute, we don't need to have the parent of a young girl come in and complain that having her teacher or having her counselor say that young girls aren't smart and that all the problems are caused by women.

[00:31:44] Speaker 01:
It doesn't really take a complaint to know that that student would feel uncomfortable in that teacher's class.

[00:31:52] Speaker 01:
And so there's a prediction of disruption in that scenario.

[00:31:57] Speaker 03:
We don't have that here because as Judge Forrest mentioned, there had been interaction with trans students with at least one of the teachers and there was nothing untoward or anything that would indicate the student felt uncomfortable or unsafe.

[00:32:13] Speaker 03:
So that's not the same scenario we have here.

[00:32:16] Speaker 01:
My comment is simply that you're entitled to predict that certain disruption may occur.

[00:32:21] Speaker 01:
And one of the disruptions our argument is, is that when you have teachers and administrators at the forefront of what my clients viewed to be advocating for a position that was contrary to the law, contrary to an anti-discrimination statute, that it's pretty reasonable to believe that those vulnerable children sitting in that classroom

[00:32:46] Speaker 01:
might have trouble connecting and forming a close personal relationship with that teacher.

[00:32:52] Speaker 03:
Could you talk about the district's policy of prohibiting comment on controversial matters by the teachers?

[00:33:00] Speaker 03:
Do you think that policy is constitutional?

[00:33:04] Speaker 01:
Well, I think it was not flushed out before the district court in a way that we could develop it to show that it was.

[00:33:10] Speaker 01:
That is my best response at this point.

[00:33:14] Speaker 03:
Well, as we stand here today, you know what the law is on speech, because you had to look at it to prepare for this case.

[00:33:21] Speaker 03:
So having looked at that law, would you be prepared to defend that policy as constitutional?

[00:33:27] Speaker 01:
I would be prepared to defend certain aspects of that policy.

[00:33:30] Speaker 01:
Certainly school districts can prohibit speech.

[00:33:34] Speaker 01:
They have a widely way to prohibit speech that teachers and administrators can engage in while on the job.

[00:33:45] Speaker 03:
address speech on campus and off campus.

[00:33:48] Speaker 03:
Would you be prepared to defend the portion of the policy that prohibited speech off campus?

[00:33:55] Speaker 01:
I would be prepared to certainly defend a policy that allows the school district to discipline employees for disruptive speech off campus.

[00:34:08] Speaker 01:
Again, part of the problem was the speech was off campus and coming onto campus and there wasn't a clear delineation between what these folks were doing.

[00:34:18] Speaker 01:
In fact, that's part of their argument was that they were permitted to do it.

[00:34:22] Speaker 02:
Are teachers allowed to get involved in politics?

[00:34:24] Speaker 02:
Of course.

[00:34:24] Speaker 02:
You know, like an election?

[00:34:26] Speaker 02:
Of course.

[00:34:27] Speaker 02:
And isn't that potentially disruptive when people disagree as we live in an age where there's a lot of disagreement?

[00:34:33] Speaker 02:
Absolutely.

[00:34:34] Speaker 02:
So I guess I'm struggling in the same way that Judge Rollinson is and how does that work?

[00:34:43] Speaker 01:
It's very difficult.

[00:34:44] Speaker 01:
I mean, and that is the balance that you see that my clients were struggling with in this case in how to manage this.

[00:34:53] Speaker 01:
But I think that, you know.

[00:34:55] Speaker 01:
But to prohibit speech in advance, that's the problem.

[00:34:59] Speaker 03:
I understand that the school district has the ability to deal with the speech once it has been, once the speech has taken place, but to prohibit it

[00:35:10] Speaker 03:
In the beginning, why isn't that unconstitutional to say you can't even speak without knowing what the speech is going to be?

[00:35:18] Speaker 03:
How is that constitutional?

[00:35:20] Speaker 01:
I don't think that is the district's policy that they had or enforced as to these plaintiffs.

[00:35:27] Speaker 03:
No, the policy itself.

[00:35:29] Speaker 03:
Doesn't the policy say that teachers are prohibited from speaking on matters of public concern?

[00:35:37] Speaker 01:
No, I don't.

[00:35:38] Speaker 03:
OK, where is the policy in the record?

[00:35:42] Speaker 03:
We don't have to guess about it.

[00:36:05] Speaker 01:
Again, I'm not sure what part of the policy is objectionable, but there is a policy in the record at 394.

[00:36:16] Speaker 01:
And it does not say that school district employees cannot participate in public debate or in politics.

[00:36:23] Speaker 01:
It says that they may exercise their right to participate fully in affairs of public interest on a local, county, state, and national level on the same basis as any citizen in a comparable position in public or private employment and within the law.

[00:36:37] Speaker 01:
So it's essentially saying, pickering.

[00:36:42] Speaker 03:
I'm not sure that's the one I'm referring to, but proceed.

[00:36:45] Speaker 03:
I'll let you know.

[00:36:50] Speaker 05:
I wanted to ask a little bit more about the disruption.

[00:36:57] Speaker 05:
Are you relying then solely on the complaints or the other issues identified in the investigative report?

[00:37:03] Speaker 05:
Are you conceding those don't constitute disruption under Pickering?

[00:37:08] Speaker 01:
It's hard to divorce the other issues here because you have the issue of the video and the disruption that that caused.

[00:37:17] Speaker 01:
But you can see in the record that one of the reasons why it was raised by the coworkers was that there was

[00:37:26] Speaker 01:
time spent by these employees during work trying to gather support for their campaign.

[00:37:34] Speaker 01:
And those policy violations were established as well.

[00:37:37] Speaker 01:
And that type of conduct is also disruptive.

[00:37:40] Speaker 01:
So we're relying on sort of the constellation of what occurred here for disruption.

[00:37:47] Speaker 03:
Counsel, I was looking at ER-229, where the school district prohibits its employees from displaying or engaging in speech supporting one side of any political or controversial civil issue.

[00:38:00] Speaker 03:
ER-229.

[00:38:15] Speaker 01:
And I I would rely on this is on for this is first of all, it's limited.

[00:38:22] Speaker 01:
It's not a perspective on all speech.

[00:38:25] Speaker 01:
It's talking about while they're in the course of their course in scope and of their employment, and that's pretty clearly established in the K-12 school environment that.

[00:38:35] Speaker 01:
school districts are entitled to prohibit teachers from engaging in certain types of speech.

[00:38:42] Speaker 01:
Political speech?

[00:38:43] Speaker 01:
Correct.

[00:38:43] Speaker 01:
Under Downs versus LA Unified School District, it's a bulletin board case out of the Ninth Circuit that talks about, you know, we're in a different world because we're in the K-12 environment.

[00:38:54] Speaker 01:
These are kids who are compelled to attend their public school.

[00:38:58] Speaker 01:
It's not

[00:38:59] Speaker 01:
You know, these are not academics or kids that are choosing between OSU or University of Oregon, and they are given a curriculum to teach, teachers are.

[00:39:10] Speaker 03:
But if two teachers are talking in the break room about politics, this would prohibit them from talking about politics in the break room, correct?

[00:39:28] Speaker 01:
Well, it potentially could, but I think that takes it out of the context of... Says while on district premises.

[00:39:34] Speaker 03:
In the break room is district premises.

[00:39:38] Speaker 01:
The break room is on district premises.

[00:39:40] Speaker 01:
That's more correct.

[00:39:40] Speaker 01:
Okay.

[00:39:44] Speaker 01:
Just going briefly to the Title VII claim.

[00:39:50] Speaker 01:
I don't think there's any evidence in this record that the school district was acting in a discriminatory basis based on these plaintiffs religion.

[00:40:00] Speaker 01:
The comments that have been mentioned again all relate to

[00:40:05] Speaker 01:
Concerns that other people have for the school districts concern that again based on the case law that it was aware of That not because of their own personal views.

[00:40:16] Speaker 01:
In fact, the record evidence is that the administrators Mr. Kolb here shared the views of the plaintiffs, but he was concerned with running a school district and complying with the law and so that was the basis of his concern and finally the

[00:40:32] Speaker 01:
evidence that is pointed to with respect to Mr. Blanchard.

[00:40:37] Speaker 01:
Mr. Blanchard is the person that put these employees on paid administrative leave, but there's no evidence in the record that he had any role in deciding to terminate their employment.

[00:40:47] Speaker 01:
So in that sense, he's not a decision maker whose alleged animus, which I don't think the record supports, but even if it does, that his animus couldn't be imputed to the school district.

[00:41:00] Speaker 03:
Thank you.

[00:41:08] Speaker 00:
Thank you, Your Honor.

[00:41:09] Speaker 00:
Three quick points.

[00:41:10] Speaker 00:
I think as the discussions just had demonstrated, the policy is clearly unconstitutional.

[00:41:15] Speaker 00:
It's an ex-anti-employee public employee speech restriction that applies off campus.

[00:41:19] Speaker 00:
That's at 228, just the previous page.

[00:41:22] Speaker 00:
It applies at all times while on campus, in the break room, in the lunch room.

[00:41:27] Speaker 00:
And that's invalid under this court's clear precedent.

[00:41:30] Speaker 00:
And so it's ready for this court to rule on it.

[00:41:33] Speaker 03:
So where does this say it applies off campus?

[00:41:36] Speaker 00:
That's at 228, the very bottom of the page, the last sentence.

[00:41:40] Speaker 03:
Oh, yes.

[00:41:40] Speaker 03:
Mm-hmm.

[00:41:40] Speaker 03:
I see it.

[00:41:41] Speaker 00:
Thank you.

[00:41:42] Speaker 00:
The second point, then, is causation is not at issue.

[00:41:45] Speaker 00:
At appellants brief, the footnote two, they only dispute the disruption point.

[00:41:51] Speaker 00:
So those things about policy violations, the alleged release of confidential information are not presented before this court.

[00:41:58] Speaker 00:
And in any event, retaliation just needs to be based, at least in part, a motivating factor.

[00:42:03] Speaker 00:
It need not be the sole cause of any retaliatory conduct.

[00:42:06] Speaker 00:
The third point, then, is that the volume of the complaints alone cannot be a basis for termination actions when, as Your Honors pointed out, that these complaints, we don't know who they're from.

[00:42:17] Speaker 00:
They're not from current North parents or students.

[00:42:21] Speaker 00:
They don't threaten that their kids will leave the school.

[00:42:24] Speaker 00:
And so just the volume alone doesn't mean much, especially in this case where it's a huge range in which the upper end is double the lower end.

[00:42:31] Speaker 00:
And Defendant Kolb himself said that was just a rough estimation.

[00:42:35] Speaker 00:
Finally, the district invited policy changes and encouraged its teachers to bring policy changes to them.

[00:42:42] Speaker 00:
Rachel and Katie merely advocated to return to the previous policy that the district had used just a month before.

[00:42:48] Speaker 00:
Any forecast of disruption is not reasonable here, and this court should reverse.

[00:42:53] Speaker 03:
Also, opposing counsel says the reason that it was changed was because the court had mandated the change.

[00:43:02] Speaker 03:
returning to what was prior, was it really an option, was it?

[00:43:08] Speaker 00:
Your Honor, the district, what Rachel and Katie advocated for was merely a policy change.

[00:43:16] Speaker 00:
You know, a single district court opinion doesn't establish what the law is and it was not a court order directed to the district itself.

[00:43:22] Speaker 00:
They just advocated for a change and the Supreme Court has been clear that teachers should be free to advocate for change.

[00:43:28] Speaker 00:
Otherwise, you know, we don't really have the ability to

[00:43:31] Speaker 00:
and create an informed public opinion and continue on with our free debate.

[00:43:35] Speaker 00:
The First Amendment protects.

[00:43:36] Speaker 03:
So it was a district court decision that was interpreted by the school district, not one directed toward the school district.

[00:43:42] Speaker 00:
That's correct, Your Honor.

[00:43:43] Speaker 00:
The district is not bound by any decision I'm aware of.

[00:43:47] Speaker 00:
Thank you, Your Honor.

[00:43:47] Speaker 03:
Thank you to both counsel for your arguments.

[00:43:49] Speaker 03:
The case just argued is submitted for decision by the court.

[00:43:55] Speaker 03:
We'll be in recess for 10 minutes.

[00:43:57] Speaker 03:
We will return at 11 31.

[00:44:02] Speaker 04:
All right.