DETSCHELT v. NORWIN SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALEXANDER DETSCHELT, )

)

Plaintiff, )

)

v. ) Civil Action No. 23-1402

)

NORWIN SCHOOL DISTRICT and )

JEFFREY M. TAYLOR, )

)

Defendants. )

MEMORANDUM OPINION

Plaintiff Alexander Detschelt (“Detschelt”) brings this action, pursuant to 42 U.S.C.

§ 1983, against Defendants Norwin School District and Jeffrey M. Taylor, alleging retaliation for

engaging in protected speech, in violation of the First Amendment of the Constitution of the United

States. (Docket No. 1). Presently before the Court is the “Motion to Dismiss of Defendants,

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure” and supporting brief (Docket

Nos. 8, 9), Detschelt’s response and brief in opposition (Docket Nos. 10, 11), and Defendants’

reply brief (Docket No. 14). The Court has also reviewed the supplemental submission filed by

Defendants (Docket No. 20), as well as Detschelt’s reply thereto (Docket No. 21). After careful

consideration of the parties’ arguments and for the following reasons, Defendants’ motion will be

granted, and Detschelt’s claim against Defendants will be dismissed.

I. BACKGROUND

As the parties are well-acquainted with the factual background of this case, at this juncture

the Court will present an abbreviated version of the facts, as alleged in the Complaint1 and in the

1 Detschelt contends that this Court has subject matter over his constitutional claim pursuant to 28 U.S.C.

§§ 1331 and 1343(a)(3). (Docket No. 1, ¶ 2).

light most favorable to Detschelt, that are relevant to the motion presently before the Court.

Detschelt is a resident of Westmoreland County, Pennsylvania, and at all times relevant to the

Complaint, was and is a duly elected member of the Norwin Board of Education (the “School

Board” or the “Board”). (Docket No. 1, ¶ 4). Defendant Norwin School District (the “School

District”) is a Pennsylvania municipal corporation, and at all times relevant to the Complaint, the

School District acted by and through its duly elected and appointed officials, including Defendant

Dr. Jeffrey M. Taylor (“Dr. Taylor”). (Id. ¶ 5). Dr. Taylor is a resident of Allegheny County,

Pennsylvania, and at all times relevant to the Complaint, was and is the duly elected and

commissioned Superintendent of the School District. (Id. ¶ 6).

As alleged in the Complaint, on January 17, 2022, the School Board convened a public

meeting, during which a contentious debate occurred between Dr. Taylor and Detschelt concerning

the daily broadcast of CNN-10 (the “CNN Broadcast”) during the homeroom period to all School

District students. (Docket No. 1, ¶ 9). Dr. Taylor supported showing the CNN Broadcast, while

Detschelt opposed it. (Id.). On February 14, 2022, the School Board conducted a workshop during

which it passed a motion, advocated by Detschelt, prohibiting the CNN Broadcast. (Id. ¶ 10).

Shortly thereafter, Detschelt received national media coverage for playing a key role in

removing the CNN Broadcast, while, according to the Complaint, Dr. Taylor received criticism

from the public as Superintendent because he was in charge of providing administrative oversight

to the School District and because he had supported showing the CNN Broadcast. (Docket No. 1,

¶¶ 11, 12). In subsequent public meetings of the School Board, Detschelt, as a member of the

School Board’s Policy Committee, discussed and recommended that the Board adopt an official

policy that prevented teachers from discussing their personal political views in the classroom, and

Dr. Taylor announced his dissatisfaction with Detschelt in later meetings. (Id. ¶ 13).

During a School Board executive session on June 6, 2022, attorney Russell Lucas

(“Lucas”), whose law firm was acting as the School District’s Solicitor, distributed printouts of a

judicial opinion issued in Zurchin v. Ambridge Area School District, 300 F. Supp. 3d 681 (W.D.

Pa. 2018), in which the court found that a hostile work environment existed because of particular

behaviors and comments that a school district’s board of directors had made regarding a school

administrator. (Docket No. 1, ¶ 14). According to the Complaint, Lucas brought Zurchin to the

School Board’s attention in reaction to prior comments, made by Detschelt and another School

Board Director, that were critical of Dr. Taylor, with whom Lucas “shares political goals that are

diametrically opposed to those of” Detschelt and the other School Director involved. (Id. ¶ 20).

The Complaint avers that Lucas provided the Zurchin opinion to the Board in an attempt to prevent

Detschelt and his fellow School Board Director from voicing any further concerns or criticism of

Dr. Taylor through fear, intimidation, and implicit coercion. (Id. ¶ 21). At the same meeting,

Detschelt gave a presentation to the School Board in which he expressed the views and impressions

that he had formed during the first six months of his term as a School Board Director, and Detschelt

made statements and comments that were critical of the School District Administration. (Id. ¶ 22).

At a School Board meeting on October 17, 2022, Detschelt and another School Board

Director informed the Board that its Superintendent Evaluation was in violation of the School Code

because the evaluation was unlawfully submitted without the feedback from the entire School

Board. (Docket No. 1, ¶ 23).

A few days later, on October 25, 2022,2 Detschelt posted an image of a satirical Halloween

costume package (the “Meme”) on the Norwin Area Talk Facebook page, which Detschelt

describes as a private community for “people to talk/vent without having to be politically correct.”

2 The Court takes judicial notice that Pennsylvania’s general election took place on November 8, 2022.

(Docket No. 1, ¶ 24). Detschelt posted the Meme with the message “I call your Uncle Festerman

and raise you with a virtue signaler” in apparent reference to another meme depicting then-

senatorial candidate John Fetterman and referring to him as a “Supersized Slacker.” (Id.; Docket

Nos. 1-1, 1-2). The Meme Detschelt posted contained and displayed the phrase “[Expletive

deleted] Retard” in reference to a person depicted with a “Medical Mask” and “Virtue Cape” who

has had “3 [presumably Covid] Boosters” and has a “Sense of Superiority.” (Docket No. 1-1).

Shortly after posting the Meme, Detschelt removed it and posted the following message:

Sorry if anyone was offended by my costume meme that was in the same light

as the meme above [referencing the meme depicting Fetterman] except for the

word “retard” in the costume description. It’s a meme, that’s all it was with no

I’ll [sic] intent, but I’ve removed it due to some people reaching out feeling

strongly against it.

(Docket No. 1, ¶ 25; Docket No. 1-2). Later that day, Detschelt posted the following message in

another private Facebook group (a group called “Norwin 5 Days Strong!!!”):

I need to clear up some nonsense that’s been taken out of context (as is the case

with most of the stuff I say or do). Earlier today I posted a “costume meme” in

a different group after a similar “costume meme” (about Uncle Festerman) was

posted, but the one I reposted contained the word “retard” in it. I didn’t make

the meme and my comment to the meme was regarding the virtue-signaling

liberals that the costume would appeal to – “retard” was part of the meme and

not something I would use in regular conversation. The screenshot that’s been

circulating is the one with just the meme that I posted, alone, so the context to

why it was posted was missing.

I don’t take issue with words unless they are used in a direct offensive context

and to me, they are still just words. However, a parent of a special needs child

called me today and told me that although she doesn’t see the meme as me

saying something offensive via that meme, the word caused emotions to run

through her because her son has been called retarded over the years by other

kids. She indicated that other parents may also have a similar emotional reaction

when seeing that word. Therefore, I took the post down.

…but I still stand by the humor of the overall meme and hope it makes the libs

“Reeeeeeeeee.”

(Docket No. 1, ¶ 26; Docket No. 1-3).

In an email dated October 28, 2022, Dr. Taylor informed the School Board that he had

drafted an official statement on behalf of the School District (the “District’s Statement” or the

“Statement”), and announced his intention to send the Statement to the “stakeholders” of the

School District in order “to minimize misinformation being disseminated on social media.”

(Docket No. 1, ¶ 29). Also on that day, Dr. Taylor sent the Statement to the stakeholders through

the School District’s “e-Blast” email list. (Id. ¶ 30). According to the School District’s

Communication Plan (attached to the Complaint), there are approximately 7,713 stakeholders of

the School District, including students, teachers, employees, administrators, Board of Education,

Parents and Guardians, PTA, alumni, households in the district without children, local businesses

and organizations, etc. (Id. ¶¶ 37, 38). The District’s Statement indicated as follows:

Dear Norwin Families and School Community,

As you may be aware, over the past week, a member of the Norwin Board of

Education posted several comments on social media which have offended many

employees and members of our school community.

As advocates for all children, it is the District’s responsibility to promote our

Board-approved Mission, Vision, and Core Values. The mission of the Norwin

School District is to provide a positive, learner-centered environment that

supports the growth of all students. Our Core Values include: (1) “nurturing the

health and well-being of students and relationships,” and (2) “promoting a

positive school climate and safe environment.”

In response to media inquiries about the posts, the District has shared an official

statement. I am including a copy of the statement below for your information.

Best regards,

Dr. Jeff Taylor,

Superintendent

District Official Statement:

The District was made aware of social media posts shared on Facebook by a

member of the Norwin Board of Education, Mr. Alex Detschelt, containing the

“R-word” and later edited to include the “Reee” phrase. The District recognizes

that many found his posts to be insensitive and offensive not only to our families

of students with special needs, but to members of our school community.

The Norwin School District does not condone nor support the use of these terms

in any capacity. While Mr. Detschelt spoke on his own behalf, it is important to

note that his social media posts represent his personal views and do not

represent, nor reflect, the views of the Norwin School District, the District

Administration, or the Norwin Board of Education.

The Norwin School District and the Norwin Board of Education do not believe

in discrimination on the basis of handicap, disability, or political affiliation in

its educational or employment programs and activities. We believe in

embracing empathy for all by promoting equality, diversity, and inclusivity.

The mission of the Norwin School District is to provide a positive, learner-

centered environment that supports the growth of all students.

No further comment will be issued at present regarding this matter.

(Docket No. 1-5). Also on October 28, 2022, the School District issued a press release (the “Press

Release”), which is substantially identical to the District’s Statement. (Docket No. 1, ¶ 39; Docket

No. 1-6).

According to the Complaint, Dr. Taylor devised, issued, and publicly released the District’s

Statement and Press Release in retaliation for Detschelt: (1) posting the Meme and what he

characterizes as apologies, and (2) previously criticizing and opposing Dr. Taylor in his

performance as Superintendent and highest-ranking public official of the School District’s

Administration. (Docket No. 1, ¶ 40). Detschelt further alleges that Dr. Taylor issued the

District’s Statement and Press Release for the sole purpose and effect of chilling and deterring

Detschelt “from engaging in pure speech and expressive conduct” protected by the First

Amendment, “activity such as criticizing the administrative regime of the School District or

privately posting potentially offensive memes on private Facebook pages that are nonetheless with

in the ambit of speech covered by the First Amendment.” (Id. ¶ 41). Detschelt avers that the

District’s Statement adversely affected his protected speech and ability to perform his job as

School Board Director, e.g., he received significant backlash from numerous “stakeholders” that

included demands that he resign and express threats of physical violence. (Id. ¶ 42).

In Count I, the sole Count of the Complaint, Detschelt alleges that Defendants retaliated

against him on the basis of his speech that related directly to and involved matters of public

concern, i.e., speech that was political, social, or subject to legitimate news and general interests

of the community and public. (Docket No. 1, ¶ 46). Detschelt avers that Defendants’ conduct was

sufficient to deter any reasonable person of ordinary firmness from exercising his or her

constitutional rights and that the conduct, in fact, hindered Detschelt in his ability to engage in free

speech, deterred him from exercising his rights to free speech in the future, and retaliated against

him for exercising those rights in the past. (Id. ¶ 47). Detschelt alleges that he had the right to

1) make non-threatening comments critical of Dr. Taylor’s work as Superintendent and the School

District Administration, and 2) post a comment in a meme that was socially inappropriate and

politically incorrect but non-threatening in nature and nowhere near “hate speech,” which

constituted free speech that was clearly established by law to be protected by the First Amendment

at the time Dr. Taylor released the District’s Statement and Press Release. (Id. ¶ 48). Detschelt

seeks compensatory damages, costs, attorney fees, punitive damages, and such other relief that the

Court deems just, equitable, or proper. (Id. at 11).

Defendants have filed their motion to dismiss, it has been fully briefed by the parties, and

it is ripe for decision.

II. STANDARD OF REVIEW

A. Rule 12(b)(6)

In considering a Rule 12(b)(6) motion to dismiss, the factual allegations contained in the

complaint must be accepted as true and must be construed in the light most favorable to the

plaintiff, and the court must “‘determine whether, under any reasonable reading of the complaint,

the plaintiff may be entitled to relief.’” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d

Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)); see Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007). While Federal Rule of Civil Procedure

8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled

to relief,” the complaint must “‘give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’” Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555

(internal citation and quotation marks omitted)). Moreover, while “this standard does not require

‘detailed factual allegations,’” Rule 8 “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Id. (quoting Twombly, 550 U.S. at 555); Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

It should be further noted, therefore, that in order to survive a motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The Supreme

Court has noted that a “claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (citing Twombly, 550 U.S. at 556). The standard “‘does not impose a probability

requirement at the pleading stage,’ but instead ‘simply calls for enough facts to raise a reasonable

expectation that discovery will reveal evidence of’ the necessary element.” Phillips, 515 F.3d at

234 (quoting Twombly, 550 U.S. at 556). Moreover, the requirement that a court accept as true all

factual allegations does not extend to legal conclusions; thus, a court is “‘not bound to accept as

true a legal conclusion couched as a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 555 (internal citation and quotation marks omitted)).

To review a complaint under this standard, the Court proceeds in three steps. See Connelly

v. Lane Constr. Corp., 809 F.3d 780, 787 (3d Cir. 2016). First, the Court notes the elements of a

claim. See id. (citing Iqbal, 556 U.S. at 675). Second, the Court eliminates conclusory allegations.

See id. (citing Iqbal, 556 U.S. at 679). And finally, the Court assumes the remaining well-pleaded

facts are true and assesses “‘whether they plausibly give rise to an entitlement to relief.’” Id.

(quoting Iqbal, 556 U.S. at 679).

B. Qualified Immunity

The qualified immunity doctrine “shield[s] government officials performing discretionary

functions . . . ‘from liability [for] civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would have known.’”

Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). Qualified immunity is not a “mere defense to liability,” but rather it is “an entitlement

not to stand trial or face the other burdens of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526

(1985). It is thus important to “resolv[e] immunity questions at the earliest possible stage in

litigation.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (quoting Hunter v. Bryant, 502 U.S.

224, 227 (1991)). In considering a claim of qualified immunity, a court must determine both

whether the plaintiff has shown a violation of a constitutional right and whether the right was

“clearly established” at the time of the alleged constitutional violation. See id. (discussing Saucier

v. Katz, 533 U.S. 194, 201 (2001)).

III. DISCUSSION

Detschelt brings his constitutional claim pursuant to 42 U.S.C. § 1983, which does not

create any substantive rights, but rather provides a remedy for deprivations of rights created by the

Constitution of the United States or federal law. See City of Oklahoma City v. Tuttle, 471 U.S.

808, 816 (1985). Thus, “[t]o state a claim for relief in an action brought under § 1983, [a plaintiff]

must establish that [he was] deprived of a right secured by the Constitution or laws of the United

States, and that the alleged deprivation was committed under color of state law.”3 American Mfrs.

Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). In this case, Detschelt asserts that Defendants

violated his right to engage in free speech without retaliation under the First Amendment to the

Constitution of the United States. (Docket No. 1 at 10-11).

A. First Amendment Retaliation

To plead a claim of retaliation for the exercise of First Amendment rights, a plaintiff must

adequately allege the following three elements: “(1) constitutionally protected conduct,

(2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his

constitutional rights, and (3) a causal link between the constitutionally protected conduct and the

retaliatory action.” Mirabella v. Villard, 853 F.3d 641, 649 (3d Cir. 2017). Notably, the first

element of a First Amendment retaliation claim concerns the plaintiff’s conduct, while the second

element concerns the defendant’s conduct. See Caristo v. Blairsville-Saltsburg Sch. Dist., 370 F.

Supp. 3d 554, 570-71 (W.D. Pa. 2019).

1. First Element: Detschelt’s Constitutionally Protected Conduct

In his Complaint, Detschelt alleges that Defendants retaliated against him for exercising

his constitutional right to: (1) make comments that were critical of Dr. Taylor’s work as

Superintendent and the School District Administration (“Superintendent/Administration

criticism”); and (2) post a meme and related comments on Facebook that were “socially

inappropriate and politically incorrect” (“Facebook posts”). (Docket No. 1, ¶¶ 46, 48). Detschelt

specifically alleges that the Facebook posts were made in his capacity as a private citizen (id. ¶ 27),

3 The parties do not appear to dispute that Dr. Taylor and the members of the School Board are state actors.

whereas, although Detschelt does not specifically allege so, his criticisms of the Superintendent

and the School District’s Administration appear to have been made in Detschelt’s official capacity

as a School Board Director.4 Despite identifying these two different types of speech in the

Complaint, Detschelt’s response to Defendants’ Motion to Dismiss seemingly narrows the basis

of his claim to his Facebook posts made as a private citizen, and not his

Superintendent/Administration criticism made as a School Board Director.

Specifically, in responding to Defendants’ motion, Detschelt initially states that he

“has pled adequate facts to sustain the inference that the Defendants engaged in legally sufficient

adverse retaliatory actions against him for exercising core First Amendment rights while acting in

his capacity as a private citizen.” (Docket No. 11 at 2 (emphasis added)). Later on, Detschelt

explains that he filed his Complaint “asserting one count for retaliation under the First Amendment

because the Defendants intentionally inflicted adverse actions and consequences upon him solely

because he exercised the cherished and adorned constitutional rights to free speech and political

affiliation/association in his capacity as a private citizen.” (Id. at 8 (emphasis added)).

Moreover, although he notes his official speech that was critical of Defendants in summarizing the

factual background, in making his argument in opposition to Defendants’ motion, Detschelt

focuses on his Facebook posts, and not his Superintendent/Administration criticism. (Id. at 9-10).

For example, Detschelt argues that, in moving to dismiss:

. . . Defendants completely disregard the averments in the Complaint which

emphasize that, at all times pertinent hereto, Mr. Detschelt was acting as private

citizen, discussing public affairs, i.e., politics, and on matters wholly unrelated

to his duties as a Board member, and in a private context where there was

nothing, including the Meme, that could remotely suggest that Mr. Detschelt

was proceeding in an official capacity or represented the views of the Board or

4 For example, many of Detschelt’s allegations concern his criticisms of the Superintendent/Administration

that occurred during School Board meetings (Docket No. 1, ¶¶ 9, 10, 13, 22, 23) and/or concern his “proper statements

and topics to bring before the Board because they were fair comments and criticism” that were “asserted in order to

address issues that were exclusively related to the administration of school business” (id. ¶¶ 17, 18).

the School District.

(Id. at 10). Detschelt then states that he “surely does not forfeit his core First Amendment rights

when he acts as a private individual in a private forum simply because he wears the other hat of

being a member of the Board.” (Id.). Detschelt further explains that:

While the Defendants devote much of their brief alleging that Dr. Taylor

sanctioned and punished Mr. Detschelt because Mr. Detschelt was acting in an

official capacity and as a public figure, as a member of the Board engaged in

the political process . . . Mr. Detschelt avers a completely different set of

facts, an entirely opposite contrast and painting of the story, asserting that

he was retaliated against for exercising First Amendment rights as a

private citizen.

(Id. at 12 (emphasis added)).

Since, in his opposition brief, Detschelt does not address or defend his allegation of

retaliation to the extent it is based on his criticisms of the Superintendent and the School District’s

Administration and addresses retaliation only to the extent it is based on his Facebook posts made

as a private citizen, it appears that Detschelt may no longer wish to pursue his claim of retaliation

based on his criticisms expressed as a member of the School Board, and since the Court is

dismissing the Complaint without prejudice to amendment, the Court presently will limit its

analysis to whether the Complaint states a plausible claim of retaliation based on the Facebook

posts Detschelt avers to have made as a private citizen.

Notably, Detschelt asserts that Defendants retaliated against him “on the basis of speech

that related directly to and involved matters of public concern, i.e., speech that was political, social,

or subject to legitimate news and general interests of the community and public.” (Docket No. 1,

¶ 46). Thus, Detschelt argues that his Facebook posts are a matter of public concern and are

protected by the First Amendment, while Defendants do not explicitly agree with this contention.5

5 See Docket No. 9 at 12 (“Setting aside the issue of whether Plaintiff’s pejorative reference to a “[Expletive

deleted] Retard” was protected by the First Amendment . . . .”).

For purposes of considering Defendants’ Motion to Dismiss, the Court finds that the Complaint

plausibly alleges speech in Detschelt’s Facebook posts that is a matter of public concern because

such posts included a meme of Senator Fetterman and referred critically to Covid-related measures

and “liberals” shortly before an election for which Fetterman was on the ballot. (Docket Nos. 1-1,

1-2, 1-3). Accordingly, the Court finds that Detschelt engaged in constitutionally protected

conduct when he posted the meme and meme-related comments – matters of public concern – as

a private citizen, and thus that he sufficiently pleads the first element of a First Amendment

retaliation claim.

2. Second Element: Defendant’s Retaliatory Action

As to the second element of his First Amendment retaliation claim, Detschelt alleges that

Defendants retaliated against him by issuing the District Statement and Press Release, which are

essentially identical in the speech they contain.6 (Docket No. 1, ¶¶ 39, 40). The parties dispute

whether such act by Defendants – issuing the District Statement, its own official speech – was, in

fact, retaliatory.7

“Because the alleged retaliatory conduct by [Defendants] is in the form of [its] own speech

6 Because the District Statement and Press Release contain nearly identical language and were released near

the same time, the Court will refer to both herein as the “District Statement.”

Additionally, the Court disagrees with Defendants to the extent they argue that this second element cannot

be satisfied because Detschelt has continued to exercise his constitutional free speech rights. (Docket No. 20

(Defendants’ Supplemental Brief in Support of Motion to Dismiss)). Such argument fails because “whether an act is

retaliatory is an objective question.” Mirabella, 853 F.3d at 650 (citing Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir.

2012)). Thus, the Court considers whether the act would deter a person of ordinary firmness, not whether a specific

plaintiff was deterred. See id. Thus, courts will not reward government officials for “‘picking on unusually hardy

speakers,’” nor should government officials “‘be liable when the plaintiff is unreasonably weak-willed.’” Id. (quoting

Bennett v. Hendrix, 423 F.3d 1247, 1252 (11th Cir. 2005)).

7 In briefing, Plaintiff hints for the first time that Defendants engaged in a series of retaliatory behaviors,

including the debate over the CNN Broadcast, the Solicitor’s “thinly veiled threat to sue Mr. Detschelt for his political

speech,” and the issuance of the District Statement and Press Release in response to Detschelt’s posting the meme.

(Docket No. 11 at 12-13). However, these allegations, although mentioned (in part) as factual background in the

Complaint, are not alleged therein to be retaliatory acts, nor is it clear to the Court, based on the Complaint as currently

pled, how those allegations constitute retaliatory actions. (Docket No. 1).

(i.e. official speech), the Court must first determine whether this speech can amount to a retaliatory

act before it can determine whether it could be sufficient to deter a person of ordinary firmness

from exercising [his] constitutional rights.”8 Caristo, 370 F. Supp. 3d at 570 (citing Mirabella,

853 F.3d at 651 (when the alleged act of retaliation is the official’s own speech, “we employ a

more specific test to determine whether the official’s speech amounts to a retaliatory act”)).

“Official speech will only constitute a retaliatory act if it is of a ‘particularly virulent character.’”

Id. at 571 (quoting McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir. 2001)). This standard is in

place because public officials – here, Defendants Dr. Taylor and the School District – have their

own countervailing First Amendment rights vis-a-vis Detschelt. See id. Under this test, the Court,

considering the allegedly retaliatory speech at issue, asks “‘whether there was a threat, coercion,

or intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.’”

(Id. (quoting Mirabella, 853 F.3d at 651 (additional quotation marks and citation omitted)).

The “virulent character” test only applies, however, “if the case involves a matter of public

concern” and not if the official’s conduct relates to a private matter, such as the job performance

of a former employee. Caristo, 370 F. Supp. 3d at 571 (citing Conard v. Pennsylvania State Police,

902 F.3d 178 183 (3d Cir. 2018)). This limitation on the application of the “virulent character”

test, sometimes called an exception, is important because “[p]ublic policies supporting the

‘virulent character test,’ such as public interest in having officials fulfill their duties (which may

require public criticism), are not in play when the speech concerns a private matter.” Id. (noting

8 Defendants argue that this case “is not a typical First Amendment Retaliation case” because the action

Detschelt is challenging (the District Statement) was made by Dr. Taylor and Detschelt’s peers in the political arena,

and the Statement was consistent with a “censure” that was later voted on and approved by a majority of Detschelt’s

fellow School Board Members. (Docket No. 9 at 12-18). Defendants assert that the censure is a critical fact that the

Court should consider in determining whether Detschelt’s First Amendment rights were violated. (Id. (citing in

support of their argument a number of cases from the Court of Appeals for the Ninth Circuit, rather than cases from

the Third Circuit). Detschelt, too, discusses the censure in his brief. (Docket No. 11 at 13-16). However, matters

involving the censure are not alleged in the Complaint and the Court will not consider the censure on the present

pleadings.

that, in Conard, the retaliatory speech involved false statements by a former public employer to a

prospective employer in response to a reference request). Here, however, Detschelt affirmatively

pleads in his Complaint, and he argues in his opposition brief, that his plausibly averred speech

involved a matter of public concern. (Docket Nos. 1 at ¶ 46; 11 at 10). The Court agrees that both

Detschelt’s Meme and related posts, as well as the School District’s counterstatements, are matters

of public concern. Therefore, the Conard exception does not apply, and Detschelt’s claim for

First Amendment retaliation is subject to the “virulent character” test. See Caristo, 370 F. Supp.

3d at 572.

The specific language of the District Statement does not satisfy the virulent character test.

In essence, the District Statement explained that the School District was made aware that Detschelt

had posted the Meme and subsequent comments on Facebook containing the word “retard” that

“many found . . . to be insensitive and offensive not only to our families of students with special

needs, but to members of our school community,” and conveyed that the School District “does not

condone nor support the use of these terms in any capacity” and that Detschelt’s postings

“represent his personal views and do not represent, nor reflect, the views of the Norwin School

District, the District Administration, or the Norwin Board of Education.” (Docket No. 1-5). The

Court finds that the District Statement, on its face, in no way communicates “a threat, coercion, or

intimidation, intimating that punishment, sanction, or adverse regulatory action will follow.”9

Mirabella, 853 F.3d at 651 (quoting McLaughlin v. Watson, 271 F.3d 566, 573 (3d Cir. 2001)).

Accordingly, the Court concludes that the “‘quantum of governmental authority brought to bear’”

9 Detschelt submits that the facts alleged in the Complaint meet this standard because the District Statement

“forewarned” Detschelt that he would face adverse disciplinary action, and shortly thereafter the Board issued the

“censure” for conduct Detschelt committed as a private citizen. (Docket No. 11 at 16 n.7). However, the Complaint

does not allege that the District Statement forewarned Detschelt that he would face adverse disciplinary action.

Further, as explained, supra, the censure referenced by the parties in briefing is also not part of the Complaint and will

not be considered for purposes of ruling on Defendants’ present motion to dismiss.

in the District Statement and Press Release is minimal. Id. (quoting R.C. Maxwell Co. v. Borough

of New Hope, 735 F.2d 85, 88 (3d Cir. 1984)).

Therefore, as Detschelt has failed to plausibly plead that Defendants engaged in a

retaliatory act, the second element of a First Amendment retaliation claim, the Court need not

consider the third element of such claim, whether a causal link has been pled. Accordingly,

Detschelt’s claim against Defendants will be dismissed for failure to state a claim upon which

relief can be granted. Such dismissal will be without prejudice, however, and Detschelt will be

given leave to amend his claim, should he choose to do so.

B. Whether Dr. Taylor is Entitled to Qualified Immunity

Defendants also argue that Dr. Taylor is entitled to qualified immunity. Although the Court

is dismissing Detschelt’s Section 1983 claim against Defendants in its entirety for failing to state

a claim upon which relief can be granted, the Court must still consider whether Dr. Taylor is

entitled to qualified immunity here. See Roth v. City of Hermitage, 709 F. App’x 733, 736 (3d Cir.

2017) (“Failing to consider the qualified immunity defense before dismissing without prejudice on

the merits was error because the District Court failed to resolve a motion asserting qualified

immunity . . . at the earliest possible stage in the litigation.” (internal quotation marks and citation

omitted)). Defendants contend that Dr. Taylor is entitled to qualified immunity because his

issuance of the District Statement was entirely consistent with an eventual public censure of

Detschelt by the School District, the Statement did not deprive Detschelt of his First Amendment

rights, and even if Detschelt does allege a violation of a constitutional right, that right was not

clearly established at the time Dr. Taylor issued the Statement. (Docket No. 9 at 18). However,

because Detschelt’s claims are undeveloped at this time (as set forth above), because Defendants

do not discuss this issue in their reply brief in response to Detschelt’s opposition, and since

Detschelt is being given leave to amend his Complaint, the Court cannot now resolve qualified

immunity but will address it only briefly at this time.

“[G]overnment officials performing discretionary functions generally are shielded from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982). A federal right is clearly established for qualified immunity purposes if its

contours are “sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). Additionally, qualified

immunity must be assessed in the context of each individual defendant’s specific conduct,

including “an analysis of the facts adduced concerning the conduct of the official” claiming

immunity. Griffin-El v. Beard, 411 F. App’x 517, 519 (3d Cir. 2011) (quoting Brown v.

Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990)).

A Court may find that a government official is entitled to qualified immunity at the motion

to dismiss stage if “(1) the facts alleged show the [official’s] conduct did not violate a constitutional

right, or (2) the right violated was not clearly established in light of the specific context of the

case.” Taylor v. Rosa, 856 F. App’x 376, 378 (3d Cir. 2021) (citing Reedy v. Evanson, 615 F.3d

197, 223–24 (3d Cir. 2010)). Thus, “qualified immunity should only be granted on a motion to

dismiss when it is ‘established on the face of the complaint.’” Janowski v. City of N. Wildwood,

259 F. Supp. 3d 113, 126 (D.N.J. 2017) (quoting Thomas v. Independence Twp., 463 F.3d 285,

291 (3d Cir. 2006)).

Here, the facts alleged in the Complaint do not make clear that the conduct of Dr. Taylor

did not violate a constitutional right (or that such right was not clearly established). Because the

Complaint does not show that Dr. Taylor’s actions did not violate a clearly established

constitutional right, dismissal on qualified immunity grounds is premature. See Thomas, 463 F.3d

at 291 (noting that a dismissal based on qualified immunity will be upheld “‘only when the

immunity is established on the face of the complaint’” (quoting Leveto v. Lapina, 258 F.3d 156,

161 (3d Cir. 2001))). Additionally, the Court is granting Detschelt leave to amend his claim. If

Detschelt chooses to file an amended complaint, he should provide a more definite statement of

his claims, and the specific right at issue here, so that the qualified immunity issue may be resolved

expeditiously and without “subjecting the [i]ndividual [d]efendants who may be immune from suit

to needless discovery and the other burdens of litigation.” Id. at 299-301 (discussing the tension

between the concept of notice pleading and the qualified immunity doctrine).

Accordingly, at this juncture, the Court will decline to grant Defendants’ motion to dismiss

the claim against Dr. Taylor based on grounds of qualified immunity. See Debrew v. Auman, 354

F. App’x 639, 642 (3d Cir. 2009) (vacating an order granting a motion to dismiss on qualified

immunity grounds because the sparse complaint “failed to disclose whether the defendants’ actions

did not violate a clearly established constitutional right” and therefore “dismissal on qualified

immunity grounds was premature” (citing Thomas, 463 F.3d at 291)); see also Newland v.

Reehorst, 328 F. App’x 788, 791 n.3 (3d Cir. 2009) (cautioning against deciding qualified

immunity without a developed factual record). However, given that the Court is granting

Defendants’ motion to dismiss Detschelt’s claim on other grounds, Defendants are free to raise

this qualified immunity argument, if appropriate, in response to an amended complaint if Detschelt

chooses to re-allege his claim against Dr. Taylor.

C. Punitive Damages

In moving to dismiss, Defendants argue that Detschelt’s claim for punitive damages against

the School District and Dr. Taylor in his official capacity must be dismissed with prejudice. In

response, Detschelt concedes that he cannot recover such punitive damages. Accordingly, to the

extent Detschelt’s claim seeks punitive damages against the School District and Dr. Taylor in his

official capacity, that claim is dismissed with prejudice.

IV. CONCLUSION

For the reasons stated, Defendants’ motion to dismiss Detschelt’s Complaint is granted.

Detschelt’s claim against Defendants is dismissed without prejudice pursuant to Rule 12(b)(6)

for failure to state a claim upon which relief can be granted, although such claim is dismissed with

prejudice to the extent it seeks punitive damages against the School District and Dr. Taylor in his

official capacity.

An appropriate Order follows.

Dated: December 20, 2024 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record