recognizing “that it is permissible for a district court of appeal to consider constitutional issues in such appeals where the record from the agency is sufficient for complete determination of the issues raised”
How later courts described this case
- recognizing “that it is permissible for a district court of appeal to consider constitutional issues in such appeals where the record from the agency is sufficient for complete determination of the issues raised”
Written by the judges who cited it.
The opinion
FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
________________________________
Case No. 5D2023-2081
LT Case No. 20-5259 TTS
________________________________
THOMAS CAGGIANO,
Appellant,
v.
DUVAL COUNTY SCHOOL BOARD,
Appellee.
_______________________________
Administrative appeal from the
School Board of Duval County.
Jason E. Bloch, Miami, and Kelly B. Mathis, of Law Office of Kelly
B. Mathis, Jacksonville, for Appellant.
Craig D. Feiser, Assistant General Counsel, City of Jacksonville
Office of the General Counsel, Jacksonville, for Appellee.
February 21, 2025
MAKAR, J.
Thomas Caggiano taught mathematics in the public school
system of Duval County, Florida, for over twenty-five years with
positive employment evaluations and no prior discipline. That was
until he made politically tinged Facebook posts that led the Duval
County School Board to initiate disciplinary charges against him.
Caggiano contests the School Board’s ruling that two of his posts
violated the teacher code of conduct thereby justifying a three-day
suspension, a reprimand, and diversity training. He asserts that
the School Board violated his right of free speech under the First
Amendment to the United States Constitution.
I.
Around 2008, Caggiano’s daughter helped him set up a
personal Facebook account, which laid dormant for over a decade,
both believing it was on a private rather than public setting.
Around the time of the 2020 election, Caggiano made several posts
to his account. For reasons not entirely clear, the posts could be
publicly viewed. Caggiano claimed that his account was hacked
and made public, but no credible evidence supports that view.
Caggiano did not use the account for school-related purposes
though some teachers had “friended” him and were thereby
recipients of his posts.
The School Board asserted that seven of Caggiano’s posts
violated the teacher code of conduct. The hearing officer
characterized the posts/reposts as “memes,” describing them as
“amusing or interesting pictures, videos, etc., that are spread
widely through the internet or social media—or comments to
memes or articles.” The School Board received a complaint about
Caggiano’s posts and, after inquiry, claimed that the following
seven posts/reposts/comments were sanctionable violations of the
teacher code of conduct:
(a) A repost from a Facebook entity called
“Messenger of Liberty,” which states: “My son is taking
part in a social experiment. He has to wear a Bernie 2020
t-shirt for 2 weeks and see how people react. So far he’s
been spit on, punched and had a bottle thrown at him! I’m
curious to see what happens when he goes outside.”;
(b) A repost from an individual and an entity called
“LIFT — LONG ISLANDERS FOR TRUMP,” which
states: “Crazy but TRUE, If this girl sees a penis at a
party it’s a crime . . . [with an accompanying photograph
of a young woman], but if this girl sees a penis in the
woman’s bathroom . . . it’s tolerance [with an
2
accompanying photograph of a girl in a bathroom]. Vote
Republican and put an end to the madness.”;
(c) A post authored by Mr. Caggiano which states:
“Dumb ass liberals are now organizing protest against
the killing of the Iranian general (terrorist) who was
responsible for many attacks against the USA. Amazing
how TRUMP derangement syndrome can cause
democraps, and the main stream media, to support our
enemies.”;
(d) A repost from another individual, which appears
to be a “screen grab” from a Fox News segment, which
states, at the top, “MAN AND WOMAN,” and which then
states: “A man goes home and masturbates his typical
fantasy. A woman on her knees, a woman tied up, a
woman abused. A woman enjoys intercourse with her
man—she fantasizes being raped by 3 men
simultaneously. . .” The “screen grab” attributes this
quote to Bernie Sanders, currently a United States
Senator from Vermont, sometime in the 1970’s (the
exhibit copy is unclear), and Mr. Caggiano’s handwritten
notes next to this exhibit states: “Bernie said this!”;
(e) A repost from a Facebook entity called “Maine
Bikers,” which states: “Meanwhile at the ‘Bikers for
Bernie’ rally. . .[,]” and which contains a picture of two
nude men on a motorcycle;
(f) What appears to be an attempted repost by Mr.
Caggiano, which Facebook apparently removed with the
message “False information, Checked by independent
fact-checkers,” but which also contains the following
comments from Mr. Caggiano: “Teach this childish nasty
bitch a lesson. Have her treasonous ass removed from
office and put in jail.”; and
(g) A repost, dated August 19, 2020, from Mr.
Caggiano, of an article from an entity called
“Lifesitenews.com,” with a headline that states: “Teen
girls stage school walkout to protest boys in their
3
bathroom who claim to be ‘girls’”; and to which Mr.
Caggiano commented, “Love it! About time people stood
up to this insanity.”
After a full evidentiary hearing involving sixteen witnesses,
including Caggiano, and documentary evidence, the
administrative law judge found that only two posts/reposts—items
(a) and (d)—warranted further judicial inquiry.* The School Board
has not claimed it was error for the hearing officer to do so; it filed
no exceptions to the administrative law judge’s findings and
conclusions, nor did it file a cross-appeal claiming error. In short,
only the two posts/reposts are at issue in this appellate proceeding.
The administrative law judge concluded that the two
“Facebook posts or reposts concern violence and abuse of a child,
as well as discriminatory and degrading views of women being
abused and raped.” On that basis, the administrative law judge
concluded that Caggiano violated the teacher code of conduct
because he:
• Failed to exercise best professional judgment and
integrity. Fla. Admin. Code. R. 6A-10.081(1)(b).
• Failed to maintain the respect and confidence of his
colleagues, students, and parents, as well as failed to
sustain the highest degree of ethical conduct. Fla.
Admin. Code. R. 6A-10.081(1)(c).
• Failed to make reasonable effort to protect students
from conditions harmful to learning and/or to the
students’ mental and/or physical health and/or safety.
Fla. Admin. Code. R. 6A-10.081(2)(a)1.
• Intentionally exposed students to unnecessary
embarrassment or disparagement. Fla. Admin. Code.
R. 6A-10.081(2)(a)5.
• Failed to take reasonable precautions to distinguish
between personal views and those of any educational
* Screenshots of items (a) and (d) are in the Appendix to this
opinion.
4
institution or organization with which he is affiliated.
Fla. Admin. Code. R. 6A-10.081(2)(b)1.
• Engaged in “immorality,” which is “conduct that
brings the individual concerned or the education
profession into public disgrace or disrespect and
impairs the individual’s service in the community.”
Fla. Admin. Code. R. 6A-5.056(1).
• Engaged in conduct that denigrates or shows hostility
or aversion toward an individual because of his/her
actual or perceived identity with regard to gender.
Duval County School Board Policy 10.10(IV)(A).
The administrative law judge concluded that just cause existed
for a written reprimand from the School Board and recommended
that Caggiano be suspended for three days without pay. The
School Board subsequently adopted the administrative law
judge’s recommendations.
II.
On appeal, Caggiano argues that his suspension and
reprimand violate his free speech rights, a claim the
administrative law judge lacked authority to rule upon, but which
can be asserted for the first time in a Florida appellate court,
provided the record is sufficient to adjudicate the claim. See Key
Haven Associated Enters., Inc. v. Bd. of Trs. of Int. Imp. Tr. Fund,
427 So. 2d 153, 158 (Fla. 1982) (holding that appellate courts
“provide a proper forum to resolve” constitutional challenges to an
agency’s application of a statute or rule “because those courts have
the power to declare the agency action improper and to require any
modifications in the administrative decision-making process
necessary to render the final agency order constitutional”); Great
House of Wine, Inc. v. Dep’t of Bus. & Prof’l Reg., 752 So. 2d 728,
729–30 (Fla. 3d DCA 2000) (recognizing “that it is permissible for
a district court of appeal to consider constitutional issues in such
appeals where the record from the agency is sufficient for complete
determination of the issues raised”). The record in this case—
consisting of testimony and evidence presented in a four-day
evidentiary hearing before the administrative law judge—is more
than adequate to allow for judicial review of Caggiano’s
constitutional claim.
5
At the outset, it is important to emphasize that the charges
against Caggiano involve no use of school resources, no
communications or contact with students, and no improper
conduct on or with school property; they do not involve false or
defamatory statements about the school district, administrators,
teachers or students; they do not involve matters of school
administration. The swirl of controversy about Caggiano’s
treatment of a transgender student formed no basis for the charges
against him; the School Board chose not to pursue sanctions for
the incident, which plays no role in this appellate proceeding.
Instead, the disciplinary charges involve only Caggiano’s two
Facebook posts made from his own personal computer, which were
both reposts of third-party content that was derogatory of a
candidate in the 2020 Presidential election, Senator Bernie
Sanders.
Turning to the law, the contours of teacher free speech are
governed by the principles of Pickering v. Board of Education, 391
U.S. 563 (1968), and its progeny whose framework created a
balance between the constitutional rights of a teacher who
comments upon matters of public interest as a citizen and the
government’s interest in the efficient delivery of the public
educational services it provides through its teachers,
administrators, and staff.
In Pickering, a teacher sent a letter that was critical of the
school board’s operations and budgetary decisions, which was
published in the local newspaper. Id. at 564. Pickering was fired
and a hearing was held, resulting in the board concluding that
sufficient evidence existed to support his termination. Id. at
566−67. The Illinois state courts concluded that Pickering’s letter
was “detrimental to the best interests of the schools” and rejected
the claim that his dismissal infringed upon his First Amendment
rights to speak on a matter of public concern. Id. at 567.
In a carefully drawn opinion, the Supreme Court held that
the facts presented did not establish a sufficient basis for the
school board to dismiss Pickering for his letter. Id. at 574. The
Court did not establish a definitive standard for evaluating
whether a public employee’s statement is constitutionally
6
protected, but it did provide guidance in “evaluating the conflicting
claims of First Amendment protection and the need for orderly
school administration” in the context of a teacher free speech
claim. Id. at 569. It noted that the “problem in any case is to arrive
at a balance between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public
services it performs through its employees.” Id. at 568.
The two-part test that has evolved is whether (a) the employee
spoke on a matter of public concern (i.e., one of significance or
importance in society at large), and, if so, (b) whether the
employee’s right to free speech outweighs the employer’s interest
in an efficient workplace without disruption. Id.
Pickering and the cases decided in its wake identify
two inquiries to guide interpretation of the constitutional
protections accorded to public employee speech. The first
requires determining whether the employee spoke as a
citizen on a matter of public concern. If the answer is no,
the employee has no First Amendment cause of action
based on his or her employer’s reaction to the speech. If
the answer is yes, then the possibility of a First
Amendment claim arises. The question becomes whether
the relevant government entity had an adequate
justification for treating the employee differently from
any other member of the general public. This
consideration reflects the importance of the relationship
between the speaker’s expressions and employment. A
government entity has broader discretion to restrict
speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that
has some potential to affect the entity’s operations.
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citations omitted).
This two-part judicial analysis is known as the Pickering-Connick
test, due to the subsequent case of Connick v. Myers, 461 U.S. 138
(1983), in which the Supreme Court further refined the public
employee free speech doctrine. See Garcetti, 547 U.S. at 418.
7
Applying the first part of the Pickering-Connick test makes
obvious that Caggiano’s two reposts and his accompanying
commentary address a matter of public concern: a Presidential
candidate. The Fox News screenshot from the Jesse Watters show
depicted a vulgar statement made by Senator Bernie Sanders at a
time when he was a college student. The statement was
newsworthy because it reflected poorly on the candidate and his
judgment. Caggiano’s comment that “Bernie said this!” merely
expressed his surprise at the statement. Likewise, the repost of the
Bernie 2020 T-Shirt schtick is clearly political humor that is
derisive of the candidate; its purpose is to commentate in a
humorous (to some) manner that Senator Sanders was lacking
support, perhaps even within his own ranks. It is hard to imagine,
as the School Board did, that this type of attempt at humor was
anything more than an innocuous political joke fallen flat.
Because the two reposts involved a matter of public concern,
the next question is whether they presented a risk to the School
Board’s interest in running an efficient workplace that is free of
disruption. On this point, no evidence was presented that the two
reposts had any meaningful impact on the School Board’s
operations or that they created any disruption. Indeed, the bulk of
the evidentiary focus was on Caggiano’s other posts (that were
deemed non-actionable) and the uncharged incident involving a
transgender student. Next to no evidence exists that anyone had
ever seen the two posts, let alone been offended to the point that
the school workplace was potentially disrupted in any way. The
notion that Caggiano was himself encouraging violence by
reposting the Bernie 2020 T-Shirt joke or was degrading women
by reposting the Fox News screenshot is wholly insupportable and
wildly off-the-mark. At best, the reposts demonstrated that
Caggiano disliked Senator Sanders (for his use of sexist language)
and was amused by sophomoric humor (that in no way promoted
violence). The posts occurred outside of the school, on Caggiano’s
own time and computer, and amounted to little more than
harmless political chitchat; they collectively amounted to the
proverbial hill of beans.
Because Caggiano’s two reposts involved a matter of public
concern, and the School Board entirely failed to show any risk or
actual disruption of its operations due to the reposts, the
8
Pickering-Connick balance tips entirely in Caggiano’s favor. His
suspension, reprimand, and diversity training were insupportable;
his free speech rights were violated. Because Caggiano has retired
from the school district, it is ordered that the suspension and
reprimand be stricken from his employment records and that he
be given full pay and related benefits for the time he was
suspended.
REVERSED with instructions to strike suspension and
reprimand from employment records and to reinstate pay and
related benefits from time of suspension.
JAY and SOUD, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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APPENDIX
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