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

In the Amended Complaint filed in this matter, Plaintiff Alexander Detschelt (“Detschelt”)1

alleges, pursuant to 42 U.S.C. § 1983, that Defendants Norwin School District and Jeffrey M.

Taylor (collectively, “Defendants”) retaliated against him for engaging in protected speech in

violation of the First Amendment of the Constitution of the United States. (Docket No. 29).

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. 30, 31), Detschelt’s

response and brief in opposition (Docket Nos. 33, 34), and Defendants’ reply brief (Docket No.

35). For the following reasons, Defendants’ motion to dismiss the Amended Complaint will be

granted, and Detschelt’s claim against Defendants will be dismissed without prejudice.

I. BACKGROUND

The Court presents an abbreviated version of the relevant facts as alleged in the Amended

Complaint2 and in the light most favorable to Detschelt. Detschelt is a resident of Westmoreland

1 Detschelt was previously represented by counsel in this case. However, after Defendants’ first motion to

dismiss was granted, Detschelt filed a motion to withdraw/substitute attorney. (Docket No. 24). After the Court held

a status conference, Detschelt’s attorneys were withdrawn as counsel, and Detschelt (who is also an attorney) was

granted leave to proceed pro se in this matter. (Docket Nos. 26-28).

2 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. 29, ¶ 2).

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. 29, ¶ 4).

Defendant Norwin School District (the “School District” or the “District”) is a Pennsylvania

municipal corporation, and at all times relevant to the Amended 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 Amended Complaint, was the duly elected and commissioned

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

As alleged in the Amended Complaint, during and prior to Detschelt’s campaign for school

board director, he vocally criticized in social and print media and at board meetings, Dr. Taylor,

the School District administration, the School Board, and union leadership for their support and

implementation of COVID-19 policies. (Docket No. 29, ¶ 9). 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. (Id. ¶ 10). Dr. Taylor supported showing the

CNN Broadcast, while Detschelt opposed it. (Id.). On February 14, 2022, the School Board

conducted a workshop meeting during which it passed a motion, advocated by Detschelt,

prohibiting the CNN Broadcast. (Id. ¶ 11).

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

removing the CNN Broadcast, while, according to the Amended 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. 29, ¶¶ 12, 13). 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.

¶ 14).

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.3 (Docket No. 29, ¶ 15). According to the Amended 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. ¶ 16). The Amended Complaint avers that Lucas provided the Zurchin opinion to the School

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.

¶ 17). 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 Dr.

Taylor and the School District Administration. (Id. ¶ 18).

During an August 8, 2022, School Board meeting, Detschelt indicated that the Assistant

Superintendent’s son’s college roommate was hired as a School District teacher, that nobody on

3 This characterization of Zurchin is based solely on the averments in the Amended Complaint and not on the

actual opinion itself.

the School Board knew of this connection, and that the anti-nepotism policy being discussed at

that meeting should be amended to require full disclosure of potential hires of friends and relatives

of School District employees. (Docket No. 29, ¶ 19). 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. (Id. ¶ 20). At that same meeting, Detschelt

made critical comments about the use of a book entitled “All Are Welcome” by the School District

in an elementary school, stating that that book about inclusivity “neglects to differentiate between

legal immigrants and foreign invaders.” (Id. ¶ 21). As a result of these and other comments

pertaining to such book, Detschelt made newspaper (print and online) appearances and public

media appearances to discuss his criticism of the book and its use by the School District, causing

Dr. Taylor to put out a statement that “Mr. Detschelt has not been authorized to speak on behalf

of the District, the Board, or the Administration regarding this book or the District’s program or

curriculum.” (Id. ¶ 22).

A few days later, on October 25, 2022,4 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.”

(Docket No. 29, ¶ 23). 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.” (Docket No.

29 at 18-19). The Meme that Detschelt posted contained and displayed the phrase “[Expletive

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

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

has had “3 [presumably Covid] Boosters” and has a “Sense of Superiority.” (Id. at 18).

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. 29, ¶ 24; Docket No. 29 at 19). 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. 29, ¶ 25; Docket No. 29 at 20).

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. 29, ¶ 29). Also on that day, Dr. Taylor sent the Statement through the School

District’s “e-Blast” email list to 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. ¶ 30). 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. 29 at 23-24). 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. 29,

¶ 31; Docket No. 29 at 25).

At the November 7, 2022, School Board meeting, the School District via the School Board

presented a motion for censure, and with majority vote passed the motion to censure Detschelt (the

“School Board’s Censure” or the “Censure”) in his capacity as a member of the Board of School

Directors. (Docket No. 29, ¶ 41). The Censure read as follows:

Motion to censure Alex Detschelt in his capacity as a member of the Board of

School Directors for the following reasons:

(a) Mr. Detschelt has made comments which are not consistent with the

District’s core values, including comments criticizing diversity and

comments offensive to people with disabilities; and

(b) Mr. Detschelt has repeatedly failed to state that his views are not the views

of the Norwin School Board, that he does not have the authority or

permission to speak on behalf of the Board and that his views are his alone;

and

(c) Mr. Detschelt has used his District-provided email address to criticize and

speak disrespectfully toward members of the public who have expressed

their opposition to his views or their intention to speak against his views.

Further, the Board calls on Mr. Detschelt to apologize to members of the

community for his comments, both his offensive comments and his

disrespectful comments made to members of the public, and to further make

clear that statements made by him are not being made on behalf of the Board.

(Docket No. 29 at 26).

According to the Amended Complaint, Dr. Taylor and/or the School District devised,

issued, and publicly released the District’s Statement, and drafted and passed the School Board’s

Censure, in retaliation for Detschelt’s: (1) prior criticism of School District policies and

instructional material; (2) prior public criticism of, and opposition to, Dr. Taylor’s performance as

Superintendent and the School District’s Administration; and (3) repeated print, television/radio,

and online media appearances where his criticisms of the School District and its administration

were presented. (Docket No. 29, ¶ 45). Detschelt further alleges that Dr. Taylor and/or the School

District devised, issued, and publicly released the District’s Statement, and drafted and passed the

Censure, which adversely affected Detschelt’s protected speech as a private citizen and his ability

to do his job as School Board Director:

. . . making him far more reluctant to (1) criticize Dr. Taylor’s performance as

Superintendent or the School District Administration, (2) post potentially

offensive political memes on Facebook, and (3) express himself in any manner,

online or in person as a private citizen, under ongoing trepidation if such

protected speech as a private citizen may result in being singled out by Dr.

Taylor and/or the School District and being subjected to School District-

initiated derision broadcast to a population at large.

(Id. ¶ 46). Detschelt avers that Dr. Taylor and/or the School District issued the Statement and

passed the Censure 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 or using potentially offensive language on private Facebook pages that are

nonetheless within the ambit of speech covered by the First Amendment.” (Id. ¶ 48). Detschelt

avers that the District’s Statement and the Censure adversely affected his “protected speech as a

private citizen and his 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 on social media and messaging. (Id. ¶ 49).

In Count I, the sole Count of the Amended Complaint, Detschelt alleges that he spoke as a

private citizen in his Facebook posts, and that – to the extent such speech was a private matter –

(1) his right to make non-threatening comments critical of Dr. Taylor’s performance as

Superintendent and the School District Administration’s policies and instructional material, and

(2) his right to post the word “retard,” is free speech clearly established by law to be protected by

the First Amendment at the time the Statement was released. (Docket No. 29, ¶¶ 56, 57). Detschelt

avers that Defendants retaliated against him “as a private citizen” with the Statement and Censure

with respect to his use of the word “retard.” (Id. ¶ 57). Detschelt further avers that Defendants’

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

her constitutional rights and that that 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. ¶ 57).

Alternatively, Detschelt alleges that – to the extent his speech was a matter of public

concern – 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

political 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. (Docket No. 29, ¶ 58). Detschelt avers that Defendants

retaliated against him, as a private citizen, with official speech that was of a particularly virulent

character, specifically, that of intimidation, intimating that punishment, sanction, or regulatory

action will follow, with such in fact occurring by virtue of the Statement and Censure. (Id.).

Defendants have filed their motion to dismiss the Amended Complaint, 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.”5 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.

A. First Amendment Retaliation

To plead a plausible claim of First Amendment retaliation, a plaintiff must adequately

allege that: “(1) he engaged in ‘constitutionally protected conduct,’ (2) the defendant engaged in

adverse retaliatory action ‘sufficient to deter a person of ordinary firmness from exercising his

constitutional rights,’ and (3) there is “a causal link [ ] between the constitutionally protected

conduct and the retaliatory action.’” Ruttle v. Brady, No. 22-3000, 2023 WL 5554648, at *2 (3d

Cir. Aug. 29, 2023) (quoting Palardy v. Twp. of Millburn, 906 F.3d 76, 80-81 (3d Cir. 2018) (citing

Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)) (additional internal quotation marks

omitted)); see 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).

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

1. Allegations of Detschelt’s Constitutionally Protected Conduct

The Court notes, at the outset, that the allegations in the Amended Complaint are somewhat

unclear and confusing, and at times certain allegations appear to overlap or contradict each other,

but the Court makes every attempt to address the allegations logically and thoroughly herein.6

After setting forth a lengthy recitation of background factual allegations in the Amended

Complaint, Detschelt ultimately alleges that the constitutionally protected conduct that is

specifically at issue in this case concerns his First Amendment freedom of speech rights to:

(1) “make non-threatening comments that [were] critical of Dr. Taylor’s performance as

Superintendent and the School District Administration’s policies and instructional material”

(hereinafter, “School District criticism”); and (2) “post a political meme,” or “post the word

‘retard,’” which is “non-threatening in nature and nowhere near ‘hate speech,’” (hereinafter,

“Facebook posts”). (Docket No. 29, ¶¶ 57, 58). Detschelt further alleges that his Facebook posts

were made in his capacity as a private citizen (id. ¶ 56), while his School District criticism appears

to have been allegedly made in his official capacity as a School Board Director.7

Accordingly, the retaliation claim lodged in the Amended Complaint appears to be based

on allegations of two different types of constitutionally protected speech: (1) Facebook posts

allegedly made by Detschelt as a private citizen; and (2) School District criticism voiced by

Detschelt in his official capacity as a School Board Director. For purposes of Defendants’ motion

6 The Court notes, for instance, that it is at times unclear in the Amended Complaint when Detschelt is alleging

that he was acting in his private capacity, and when he is alleging that he was acting in his official capacity.

Additionally, Detschelt argues both that his speech was a matter of public concern and that his speech concerned a

private matter.

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

that occurred during School Board meetings (Docket No. 29, ¶¶ 10-11, 14, 18-21) 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. ¶ 16).

to dismiss, the parties do not appear to dispute that such averments adequately allege

constitutionally protected conduct, and the Court agrees. Therefore, the Court finds that the first

element of Detschelt’s First Amendment retaliation claim has been met.

2. Allegations of Defendants’ Retaliatory Actions

As to the second element of Detschelt’s First Amendment retaliation claim, the Amended

Complaint alleges that Defendants’ retaliatory conduct against Detschelt consisted of:

(1) the release of the District’s Statement, and (2) the passing of the School Board’s Censure.

(Docket No. 29, ¶¶ 57, 58). The parties dispute, however, whether Detschelt has adequately pled

facts showing that such actions by Defendants – the District’s Statement (its own official speech

in response to Detschelt’s speech) and the School Board’s Censure (a decision by an elected body

against one of its members) – were, in fact, retaliatory actions.

a. The District’s Statement

First, the Court considers whether the facts alleged in the Amended Complaint show that

the District’s Statement, another form of speech, was a retaliatory action. “Because the alleged

retaliatory conduct by [Defendants] is in the form of [its] own speech (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.” Caristo, 370 F. Supp. 3d at 571 (citing Mirabella, 853 F.3d at 651

(explaining that 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.

(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 internal 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 matter of only private concern. 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. Generally, “[s]peech deals with matters of public

concern when it can be fairly considered as relating to any matter of political, social, or other

concern to the community . . . or when it is a subject of legitimate news interest; that is, a subject

of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453

(2011) (internal quotation marks and citations omitted).

In considering Defendants’ motion to dismiss the original Complaint, the Court previously

found that Detschelt’s plausibly averred speech involved a matter of public concern – a conclusion

that the parties did not dispute. Therefore, the Court previously held that, under the facts averred

in the Complaint, the Conard exception did not apply to this case, and Detschelt’s claim for First

Amendment retaliation was subject to the “virulent character” test. See Caristo, 370 F. Supp. 3d

at 571-52. Now, however, in opposing Defendants’ motion to dismiss the Amended Complaint

(presumably in an attempt to avoid the application of the virulent character test), Detschelt argues

– somewhat confusingly, and in the alternative – that his constitutionally protected speech

concerned a “private matter” or that his speech was a “matter of public concern” (although, in

making such assertion, he does not differentiate between the two types of constitutionally protected

speech that he alleges).8 (Docket No. 29, ¶¶ 57, 58).

Detschelt does not make his alternative public/private concern argument regarding his

School District criticism, however, and he appears to concede that his School District criticism is

a matter of public concern. Therefore, for purposes of ruling on Defendants’ present motion to

dismiss and based on the allegations in the Amended Complaint, the Court finds (as it previously

found in considering Defendants’ first motion to dismiss) Detschelt’s School District criticism,

made in his official capacity, to be a matter of public concern. Thus, to the extent the District’s

Statement is considered to be speech in response to Detschelt’s School District criticism, the

virulent character test applies.

Similarly, with regard to his Facebook posts, Detschelt previously argued (in opposing

Defendants’ motion to dismiss his original Complaint) that such posts were a matter of public

concern and were thus protected by the First Amendment – while Defendants did not explicitly

agree.9 Nevertheless, viewing Detschelt’s allegations in the Complaint in the light most favorable

to him for purposes of considering Defendants’ motion to dismiss, the Court found that Detschelt

plausibly alleged protected speech in his Facebook posts that was a matter of public concern. In

so finding, the Court noted that such posts (which contained the words “retard” and “Reee”)

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,

8 In his original Complaint, Detschelt alleged that his speech related directly to and involved matters of public

concern, and the Court agreed. (Docket No. 1, ¶ 46).

9 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 . . . .”).

1-3). Accordingly, the Court found that in considering Defendants’ speech in response to

Detschelt’s Facebook posts, the virulent character test applies. Here, too, to the extent Detschelt

pleads in his Amended Complaint that his Facebook posts are a matter of public concern, the Court

finds that in considering the District’s Statement as speech in response thereto, the virulent

character test applies.

However, in response to Defendants’ second motion to dismiss, Detschelt now also argues

(in the alternative) that his protected speech was a private matter, despite the fact that the Amended

Complaint contains no new allegations regarding the Facebook posts. Instead of amending his

averments, Detschelt presents a new argument as to how the Court should evaluate the same

Facebook post allegations, which is, in essence, that Defendants’ response to Detschelt’s Facebook

posts “made” those posts a private matter. (Docket No. 29, ¶ 42). Specifically, Detschelt concedes

that his Facebook posts “taken as a whole” were “political in nature,” but he now argues that

Defendants “focused on just one word [retard] that had no political connotation or sentiment, with

the District’s retaliatory actions relating only on that word.” (Docket No. 34 at 3). Detschelt

contends that Defendants focused too much on the use of the word “retard” in responding to his

Facebook posts, and “failed to provide its own political speech as a countervailing viewpoint.”

(Id. at 4). Detschelt suggests various responses that Defendants could have provided in response

to his Facebook posts, which would have contained an explicitly political message. (Id.).

Detschelt asserts that, since Defendants did not respond in such a manner, however, the word

“retard” (and the accompanying “Reee” phrase) should be considered in isolation without the

surrounding context of his admittedly political posts, and the use of such word(s) should be found

not to constitute speech that is a matter of public concern.10 (Id. at 4-5).

10 In the Amended Complaint itself, Detschelt avers that “[a]lthough the Meme as a whole is of a political nature

and thus considered a matter of public concern on its face,” Defendants’ response focusing on “the word ‘retard,’

The Court disagrees. Previously, based on the allegations in the Complaint and for the

reasons set forth in its Memorandum Opinion granting Defendants’ prior motion to dismiss, the

Court found Detschelt’s Facebook posts to be a matter of public concern – as Detschelt also urged

at that time. The allegations regarding Detschelt’s Facebook posts have not changed in the

Amended Complaint. Additionally, Detschelt has provided no legal support for his argument that

the Court should consider only one word from the Facebook posts, in isolation and while

discarding the surrounding context, in order to find that such posts did not involve a matter of

public concern. The Court is not persuaded that Defendants, in choosing not to respond to the

entirety of Detschelt’s Facebook posts (which were admittedly of public concern) with

“countervailing political speech,” and instead electing to indicate that they did not agree with

certain language that Detschelt used in his Facebook posts (and to clarify that Detschelt did not

speak for the School District in such posts), thereby “made” Detschelt’s speech a private matter,

as Detschelt now argues.

Moreover, the Court notes that to the extent Detschelt argues that the Conard exception

does not apply here – and that the virulent character test should therefore not be applied – based

on his allegation (in the alternative) that his Facebook posts involve a “private matter,” the Court

also disagrees. The type of concern regarding private matters that was raised in Conard is simply

not present here, under the facts alleged in the Amended Complaint. In Conard, the private matter

at issue – which merited an exception to the application of the virulent character test – was the

plaintiff’s job performance as a former employee, and the retaliatory speech was in the form of

false statements by a former public employer to the plaintiff’s prospective employer in response

without further context, thereby mak[es] Mr. Detschelt’s instant speech non-political and a private matter (i.e., not a

matter of public concern, no different than had he used any other English word by itself and without a political meme

associated with it).” (Docket No. 29, ¶ 42).

to a reference request. See 902 F.3d at 182-83. Other examples of speech that have been found to

be of only private concern include: information about a particular individual’s credit report that

was available only to five subscribers who could not disseminate it further, see Dun & Bradstreet,

Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761-62 (1985); and in the context of a government

employer regulating the speech of its employees, videos of an employee engaging in sexually

explicit acts, see San Diego v. Roe, 543 U.S. 77, 84 (2004). Detschelt’s Facebook posts, and the

District’s Statement issued in response thereto, do not appear to raise concerns like those raised in

connection with other types of matters that have been found to be “private.” Whether Detschelt’s

posts are viewed widely as criticism of a response to Covid, or narrowly viewed as focusing on a

certain word considered hurtful to a portion of the School Board’s and District’s constituents, such

concerns are public, not private. Thus, Detschelt has not shown that his Facebook posts involve a

purely private matter, such that the “virulent character” test should not be applied to the School

District’s response thereto.

Accordingly, as the Court previously found in ruling on Defendants’ first motion to

dismiss, the Court finds, here again and based on the same allegations, that the specific language

of the District’s Statement does not satisfy the virulent character test. In essence, the District’s

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. 29 at 23-24). The Court finds,

in considering the allegations of the Amended Complaint, that the District’s Statement, on its face,

in no way communicates “‘a threat, coercion, or intimidation, intimating that punishment, sanction,

or adverse regulatory action will follow.’” Mirabella, 853 F.3d at 651 (quoting McLaughlin, 271

F.3d at 573). The only reasonable reading of the Statement is that the District was disassociating

itself from that language used by Detschelt, who made the posts without the collective endorsement

of the School Board as a whole. Accordingly, the Court concludes that the “‘quantum of

governmental authority brought to bear’” in the District’s Statement is minimal. Id. (quoting R.C.

Maxwell Co. v. Borough of New Hope, 735 F.2d 85, 88 (3d Cir. 1984)). Thus, the Court finds that

Detschelt has failed to plausibly plead that the District’s Statement constituted a retaliatory action

against him by Defendants.

b. The School Board’s Censure

The Court next considers whether the facts alleged in the Amended Complaint plausibly

show that the School Board’s Censure of Detschelt constituted a retaliatory action by Defendants.11

As set forth, supra, the language of the Censure (quoted in part in the Amended Complaint, and

attached in full thereto as a “Motion to censure Alex Detschelt in his capacity as a member of the

Board of School Directors for the following reasons”) expressly indicated that: Detschelt had

made comments “not consistent with the District’s core values, including comments criticizing

diversity and comments offensive to people with disabilities”; he had repeatedly failed to state that

his views are not the views of the School Board; he had used his District-provided email address

to criticize and speak disrespectfully toward members of the public; and the Censure called for

11 Although the Censure was not specifically listed as a retaliatory action in the original Complaint, both

Detschelt and Defendants discussed the Censure at length in their briefs in support of and in opposition to Defendants’

first motion to dismiss. Additionally, Defendants argue repeatedly that the Censure is substantially the same as the

District Statement and should be treated similarly. Therefore, for purposes of ruling on Defendants’ present motion

to dismiss, the Court finds that the allegations regarding the Censure in the Amended Complaint relate back to the

date of the original Complaint, and the Court does not find such additional allegations regarding the Censure, as part

of Defendants’ alleged retaliation against Detschelt, to be time-barred. See Fed. R. Civ. P. 15(c).

Detschelt to apologize to members of the community for his comments and to make clear that

statements made by him are not made on behalf of the School Board. (Docket No. 29 at 26).

Detschelt asserts, without providing legal support, that the Censure “was a regulatory action,

created by a governing body, namely, the majority of the members of the District’s school board,

was acted upon at a legislative meeting of the District as an agenda item, . . . passed by a majority

vote . . . which by any objective measure qualifies as an adverse regulatory action (or sanction).”

(Docket No. 34 at 11).

A recent Third Circuit case, Ruttle v. Brady, No. 22-3000, 2023 WL 5554648 (3d Cir. Aug.

29, 2023), addressed whether a First Amendment retaliation claim could be sustained where a

censure was alleged to be an adverse retaliatory action. The plaintiff in Ruttle, a borough council

member, alleged a First Amendment retaliation claim against his fellow council members and the

borough, based on a council censure that he received after objecting to a council resolution. See

id. at *1. The Third Circuit affirmed the district court’s determination that the censure at issue did

not constitute an adverse retaliatory action, relying on the Supreme Court’s decision in Houston

Community College System v. Wilson, 595 U.S. 468, 479 (2022). In Houston Community, the

Supreme Court reversed the appellate court and found that a college board of trustees’ censure of

one of its members, after years of acrimony, did not qualify as a materially adverse action

consistent with the Court’s case law. Citing Houston Community, the Ruttle Court stated, “The

Supreme Court recently held that a verbal censure of a public official unaccompanied by any

punishment, like the one at issue here, is not an ‘adverse’ retaliatory action that can form the basis

of a First Amendment claim.” 2023 WL 555648, at *3 (citing Houston Community, 595 U.S. at

477-79). The Ruttle Court further noted that, in Houston Community, the Supreme Court explained

that “‘[i]n this country, we expect elected representatives to shoulder a degree of criticism about

their public service from their constituents and their peers—and to continue exercising their free

speech rights when the criticism comes.’”12 Id. (quoting Houston Community, 595 U.S. at 478).

The Ruttle Court remarked that the censure at issue in that case, like the censure in Houston

Community, involved “‘a censure of one member of an elected body by other members of the same

body,’” and concluded that because the censure “‘[did] not involve expulsion, exclusion, or any

other form of punishment,’” similar to the censure at issue in Houston Community, such censure

could not support a viable First Amendment claim. Id. (quoting Houston Community, 595 U.S. at

482)

Here, too, the Court notes that, based on the allegations of the Amended Complaint, and

like the censures at issue in Houston Community and Ruttle, the School Board’s Censure was

issued against Detschelt in his official capacity by his fellow School Board members – i.e., against

one member of an elected body by other members of the same body. Additionally, like the

censures in Houston Community and Ruttle, the School Board’s Censure here did not involve

expulsion, exclusion, or any other form of punishment. As such, the Court finds that, as the

12 Justice Gorsuch authored the Houston Community opinion, further noting that “[w]hatever differences may

exist about interpretations of the First Amendment, there is practically universal agreement that it was adopted in part

to protect the free discussion of governmental affairs,” and “[w]hen individuals consent to be a candidate for a public

office conferred by the election of the people, they necessarily pu[t] [their] character in issue, so far as it may respect

[their] fitness and qualifications for the office.” 595 U.S. at 478 (internal quotation marks and citations omitted).

Justice Gorsuch continued:

The First Amendment surely promises an elected representative like [plaintiff] the right to speak

freely on questions of government policy. But just as surely, it cannot be used as a weapon to

silence other representatives seeking to do the same. The right to “examin[e] public characters

and measures” through “free communication” may be no less than the “guardian of every other

right.” Madison’s Report on the Virginia Resolutions (Jan. 7, 1800), in 17 Papers of James

Madison 345 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991). And the role that elected

officials play in that process “‘makes it all the more imperative that they be allowed to freely

express themselves.’” Republican Party of Minn. v. White, 536 U.S. 765, 781, 122 S. Ct. 2528,

153 L. Ed. 2d 694 (2002).

Id.

In other words, a public figure must “take it” just as well as they “give it.” And, here, what the School

District gave back to Detschelt seems to have been mild indeed.

Supreme Court concluded in Houston Community and the Third Circuit held in Ruttle when

considering censures, the Board’s Censure here does not constitute an adverse retaliatory action

and cannot support a viable First Amendment claim.

c. Summary

Detschelt has failed to plausibly plead that, through the issuance of the District’s Statement

or the passing of the School Board’s Censure, Defendants engaged in retaliatory actions necessary

to satisfy the second element of a First Amendment retaliation claim. Therefore, 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 one final opportunity to amend his claim, should he choose to do so.

B. Whether Dr. Taylor is Entitled to Qualified Immunity

As in their previous motion to dismiss, Defendants again argue, in moving to dismiss the

Amended Complaint, that Dr. Taylor is entitled to qualified immunity in this matter. Although the

Court is once again dismissing Detschelt’s Section 1983 claim against Defendants for failure to

state a claim upon which relief can be granted, the Court will again consider here whether Dr.

Taylor is entitled to qualified immunity. 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 the District’s

Statement in no way communicates a threat, coercion, or intimidation, intimating that punishment,

sanction, or adverse regulatory action will follow; Detschelt has not pled any specific facts against

Dr. Taylor relative to his involvement in the School Board’s Censure of Detschelt, which used

substantially similar language to the District Statement; and the Supreme Court has held that a

legislative body’s censure of one of its members is not a retaliatory act for purposes of First

Amendment retaliation. (Docket No. 31 at 16). However, because Detschelt’s claims remain

undeveloped at this time (as set forth above), because Defendants do not further discuss this issue

in their reply brief in response to Detschelt’s opposition to their motion, and since Detschelt shall

be permitted one final opportunity to amend his claim, the Court cannot now resolve qualified

immunity, and will address it only briefly here.

As the Court previously explained in ruling on Defendants’ motion to dismiss the

Complaint, “government 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 Amended 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 Amended Complaint does not show that Dr. Taylor’s actions did not violate a clearly

established constitutional right, dismissal on qualified immunity grounds is still premature at this

juncture. 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 one last time. If Detschelt chooses to file a second amended complaint, he

should provide a more definite statement of his claim, 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 time, 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 a second amended complaint if

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

IV. CONCLUSION

For the reasons stated, Defendants’ motion to dismiss Detschelt’s Amended 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.

An appropriate Order follows.

Dated: May 29, 2025 s/ W. Scott Hardy

W. Scott Hardy

United States District Judge

cc/ecf: All counsel of record

Alexander Detschelt