Reply Brief — Kari MacRae, Petitioner v. Matthew Mattos, et al.

No. 24-355

IN THE

Supreme Court of the United States

_________

KARI MACRAE,

v.

Petitioner,

MATTHEW MATTOS, ET AL.,

Respondents,

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

_________

REPLY BRIEF FOR PETITIONER

_________

MICHAEL BEKESHA

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street, S.W.

Suite 800

Washington, DC 20024

(202) 646-5172

mbekesha@judicialwatch.org

Counsel for Petitioner

Dated: February 14, 2025

LEGAL PRINTERS LLC ! Washington, DC ! 202-747-2400 ! legalprinters.com

i

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ...................................... ii

INTRODUCTION .......................................................1

I.

The Petition Raises a Question of

Exceptional Importance Concerning

Unrelated, Preemployment Speech on

Matters of Public Concern..................................1

II.

This Case Is the Ideal Vehicle Concerning

Unrelated, Preemployment Speech on

Matters of Public Concern..................................8

CONCLUSION ............................................................9

ii

TABLE OF AUTHORITIES

Cases

Page(s)

Andrade v. City of San Antonio,

143 F. Supp. 2d 699 (W.D. Tex. 2001) ....................3

Beilan v. Bd. of Pub. Educ.,

357 U.S. 399 (1958) .................................................7

Branti v. Finkel,

445 U.S. 507 (1980) .................................................8

Christopher v. City of Chicago,

2022 U.S. Dist. LEXIS 225900,

Case No. 20-cv-2716

(N.D. Ill. Dec. 15, 2022) ......................................2, 3

Cleavenger v. Univ. of Oregon,

2015 U.S. Dist. LEXIS 102972,

Case No. 13-cv-1908

(D. Or. Aug. 6, 2015) ...............................................3

Connick v. Myers,

461 U.S. 138 (1983) .............................................7, 8

Flanagan v. Munger,

890 F.2d 1557 (10th Cir. 1989) ...............................5

Humphrey v. Fulk,

2021 U.S. Dist. LEXIS 175066,

Case No. 20-cv-001158

(E.D. Ark. Sep. 15, 2021) ........................................4

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) .................................................7

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) .................................................7

iii

Mitchell v. Grady County Crim. Justice Auth.,

2012 U.S. Dist. LEXIS 77093,

Case No. CIV-10-1121

(W.D. Okla. June 4, 2012) ......................................4

Riel v. City of Santa Monica,

2014 U.S. Dist. LEXIS 207663,

Case No. CV 14-04692

(C.D. Cal. Sep. 22, 2014) .........................................2

Shelton v. Tucker,

364 U.S. 479 (1960) .................................................7

Tiger v. Powell,

2022 U.S. Dist. LEXIS 165184,

Case No. 21-cv-01892

(D. Colo. Sep. 13, 2022) .......................................4, 5

United States v. Robel,

389 U.S. 258 (1967) .................................................7

Weiman v. Updegraff,

344 U.S. 183 (1952) .................................................7

1

INTRODUCTION

In her petition, Kari MacRae demonstrates how

the First Circuit’s unprecedented use of the Pickering

balancing test for unrelated, preemployment speech

on matters of public concern will erode the free speech

rights of the four million public-school teachers and

the tens-of-million aspiring teachers.

Amici

highlights how the First Circuit’s ruling, if

unreviewed, will negatively affect any citizen who is

or seeks to be a public employee at the federal, state,

or local level. For these reasons alone, the Court

should review and reverse the decision below.

Hanover Public Schools’ opposition also

highlights why the Court should review the First

Circuit’s ruling. As the school district describes it, the

law is clear: the Pickering balancing test allows school

administrators to fire a teacher if they do not like the

teacher’s speech, even if that speech occurred before

the teacher was employed by the school and was not

about the school district or its administrators,

teachers, parents, or students. If that novel test were

to survive, private citizens who decide to become

public school teachers will no longer have the same

free speech rights as their fellow citizens.

I.

The Petition Raises a Question of

Exceptional

Importance

Concerning

Unrelated, Preemployment Speech on

Matters of Public Concern.

Whether the Pickering balancing test applies to

unrelated, preemployment speech on matters of

public concern is a question of exceptional

importance.

Hanover Public Schools, in its

2

opposition, suggests otherwise. Each reason put forth

by the school district is without merit.

1.

Hanover Public Schools asserts that there

is no circuit split on the issue. Opp. at 9. MacRae has

not suggested one exists because the appellate court’s

ruling is one of first impression. No other court has

applied the Pickering balancing test to speech that

was not about work. In fact, some of the cases cited

by Hanover Public Schools concerned speech about

the employer.

In Riel v. City of Santa Monica, the plaintiff was

hired as the city’s spokesperson responsible for

managing “all activities related to public information,

intergovernmental relations, . . . and City Council

support.” No. CV 14-04692, 2014 U.S. Dist. LEXIS

207663, *3–4 (C.D. Cal. Sep. 22, 2014). The city fired

the plaintiff after discovering an article she wrote

prior to employment criticizing the city’s

transparency with the public. Id. at 4. The city also

discovered that before hiring the plaintiff, the

plaintiff contributed to a “hit piece” against a current

city councilmember whom the plaintiff was expected

to work with in her position. Id. at 5.

In Christopher v. City of Chicago, the plaintiff

applied for the city’s Emergency Crew Dispatcher

position after his termination from a different city

position years earlier. No. 20-cv-2716, 2022 U.S. Dist.

LEXIS 225900, *2 (N.D. Ill. Dec. 15, 2022). On the

application, the plaintiff briefly explained that he was

fired after he questioned the city’s hiring practices.

Id.

The city reviewed the plaintiff’s file and

discovered that the official reason for his termination

was due to misconduct relating to an argument with

3

his supervisor. Id. at 7. After this discovery, the city

did not hire the plaintiff. Id. at 7–8. In response to

the plaintiff’s retaliation claim, the court found that

his earlier speech made during his employment with

the same employer “contain[ed] no indication of any

motivation related to furthering the public interest in

preventing politically discriminatory or patronagerelated hiring practices by the city.” Id. at 12.

In Andrade v. City of San Antonio, the court

applied the “public concern” test because the

challenged speech occurred when the plaintiff, then

an applicant to the city’s fire department, challenged

the department’s hiring practices in court. 143 F.

Supp. 2d 699, 715 (W.D. Tex. 2001). Pending

temporary injunctions, the plaintiff was placed in the

department’s training program as a probationary

employee despite “reasons exist[ing] for [his]

rejection.” Id. at 705, 718. After the suit concluded

and probationary employees were held to be “at will”

employees, the department terminated the plaintiff

for the same reasons his application was originally

flagged. Id. at 705.

In Cleavenger v. University of Oregon, the

plaintiff was hired as an officer for the university

police department. No. CV 13-1908, 2015 U.S. Dist.

LEXIS 102972, *1–2 (D. Or. Aug. 6, 2015). The

plaintiff was terminated, and in his retaliation claim

against the department, he pointed to several

instances of speech including a school speech he gave

years ago opposing the department’s use of tasers. Id.

at 19–20.

In Mitchell v. Grady County Crim. Justice

Auth., it appears more likely that the speech occurred

4

during employment, since the plaintiff notes in her

complaint that her speech occurred between January

and February 2010, and the plaintiff did not return to

work until after she had already been terminated in

late February 2010. Compl. ¶ 16, No. CIV-10-1121,

2012 U.S. Dist. LEXIS 77093, *3 (W.D. Okla. June 4,

2012). Regardless, the court found that the plaintiff’s

speech complaining of her employer’s compensation

discrepancies, safety concerns, lack of training, lack

of equipment, and state regulatory compliance issues

were “made pursuant to her role as a jail supervisor,”

and thus unprotected. Id. at 19.

In Humphrey v. Fulk, the plaintiff was

appointed Chief of Police for the City of Little Rock

after previously serving as Chief of Police in a

different jurisdiction. No. 4:20-CV-001158, 2021 U.S.

Dist. LEXIS 175066, *7–10 (E.D. Ark. Sep. 15, 2021).

The plaintiff was “well known for the institutional

reforms he brought to the [department] from which he

came,” and believed his colleagues were retaliating

against him for his earlier statements expressing his

policing philosophy. Id. at 9–10. The court concluded

that the plaintiff’s statements in his prior position

were not protected because he was “acting as a public

employee making statements pursuant to his official

duties” as chief of police. Id. at 10. Had his earlier

position not been the same as his current position, the

court’s analysis may likely have been different.

In Tiger v. Powell, the challenged speech

occurred during the plaintiff’s earlier employment

with the city. No. 21-cv-01892, 2022 U.S. Dist. LEXIS

165184 (D. Colo. Sep. 13, 2022). In his previous

position, the plaintiff confronted his supervisor about

the supervisor’s use of an inappropriate nickname

5

before the plaintiff eventually quit. Id. at 2. When

the plaintiff later applied for a different position with

the city, his application was denied because of his

“negative employment history with a prior law

enforcement entity.” Id. at 3. The plaintiff accused

the city of retaliation over a conversation he had with

a different department. Id. at 35. The court found

that the plaintiff’s speech was unprotected because he

was a public employee at the time of the challenged

speech and his speech concerned internal personnel

disputes and working conditions. Id. at 36–38.

The cases cited by Hanover Public Schools all

concern speech about work. Here, MacRae’s speech

was not about work. It was not about the school

district or its administrators, teachers, parents, or

students. It was not about the curriculum or the

district’s policies. It was not even about the town.

MacRae’s speech added to the national public debate

on immigration policy, racism, and gender identity.

The First Circuit’s decision was the first of its kind.

2. Hanover Public Schools asserts that

MacRae’s speech was related to the school district.

Speech that is “about work” must be related to the

workplace, however. As the Tenth Circuit has noted,

speech that is “unrelated to any internal functioning

of the” government employer is not about work.

Flanagan v. Munger, 890 F.2d 1557, 1562 (10th Cir.

1989). MacRae’s speech was not related to the

internal functions of Hanover Public Schools. Nor

does the school district say that it was. The school

administrators instead assert that her speech was

about school because it “contravened the mission

statement and values of the District.” Opp. at 7.

6

Bluntly, any private speech could contravene a

value as opaque as “collaborative relationships and

respect for human differences.” Opp. at 6. For

example, social media posts by a diehard New York

Yankees fan who happens to be a Massachusetts

public-school teacher about how her baseball team of

choice is better than the Boston Red Sox could run

afoul

of

collaborative

relationships

in

a

Massachusetts school. Similarly, any discussion

about hot button political issues by a public-school

teacher could lead to a belief that the teacher does not

respect human differences. For example, a devout

Catholic parent may believe that a teacher who posts

on social media about how she escorts patients into a

Planned Parenthood clinic on Sundays does not

respect human differences. “About work” or “related

to work” must mean more than what Hanover Public

Schools asserts. Pickering cannot be so broad that it

sweeps private speech under the school district's

disciplinary purview because the speech, which is

unrelated to the school district or the teaching

position, abstractly conflicts with the broader mission

of the district. If the First Circuit's interpretation is

kept, school administrators may interpret a teacher's

private pre-employment speech that expresses any

viewpoint as possible grounds for termination.

3. Hanover Public Schools argues that the

Court should not hear this case because balancing

governmental interests is fundamental. Opp. at 11.

In making such an argument, the school district

seems to forget that Pickering is the exception, not the

rule. When the government acts—whether through

affirmative legislation or after-the-fact retaliation—

in response to First Amendment protected activity,

7

such action must be narrowly tailored to achieve a

compelling interest. Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507, 525 (2022) (“[T]his Court will find a

First Amendment violation unless the government

can satisfy ‘strict scrutiny’ by demonstrating its

course was justified by a compelling state interest and

was narrowly tailored in pursuit of that interest.”).

An exception however has been made for speech by an

employee. But the exception has no place when the

speech took place prior to employment and is not

about work.

Regardless, whether the Court adopts the

Pickering balancing test or another standard that

considers the government’s interest is not a reason to

deny the petition. In addition, MacRae proposes that

the correct standard is one previously adopted by the

Court and accounts for a school’s interest in whether

a prospective teacher is competent and fit for the job.

As the Court has made clear, any investigation into a

prospective public-school teacher’s private speech

must be for the sole purpose of determining her

competence and fitness for the position. Shelton v.

Tucker, 364 U.S. 479, 488 (1960). This was true

during the height of the McCarthy era and should

remain so today. See Connick v. Myers, 461 U.S. 138

(1983); see also Weiman v. Updegraff, 344 U.S. 183

(1952); Beilan v. Bd. of Pub. Educ., 357 U.S. 399

(1958); Shelton, 364 U.S. 479; Keyishian v. Bd. of

Regents, 385 U.S. 589 (1967); United States v. Robel,

389 U.S. 258 (1967).

In the public employment context, generally the

compelling interest is whether the employee is

competent and fit for the position.

See

Branti v. Finkel, 445 U.S. 507, 518 (1980). School

8

administrators

may

account

for

unrelated,

preemployment speech if that speech shows that the

private citizen is not competent or fit to be a publicschool teacher. If the speech relates to “any matter of

political, social, or other concern to the community,”

it will be difficult to show that such speech has any

bearing whatsoever on competence or fitness.

Connick, 461 U.S. at 146. Most often, such speech will

be unequivocally protected by the Court’s

unconstitutional conditions doctrine.

II.

This Case Is the Ideal Vehicle Concerning

Unrelated, Preemployment Speech

on Matters of Public Concern.

Hanover Public Schools fabricates facts and

misconstrues the case’s procedural posture to argue

that this case is not an ideal vehicle for the Court to

determine whether Pickering balancing applies to

unrelated, preemployment speech on matters of

public concern.

First, Hanover Public Schools repeats its

assertion that the speech was related to the school

district. Opp. at 12. However, the speech was not

made at school because, obviously, it was made

months before MacRae was employed by Hanover

Public Schools. App. 3a. Nor was the speech about

the school district or its administrators, teachers,

parents, or students. App. 25a. MacRae’s speech was

about national, hot button issues of immigration

policy, racism, and gender identity. Id. To say the

speech was related to the school district is false.

Second, Hanover Public Schools asserts that “the

school had received information that parents and

students were upset by” MacRae’s speech. Opp. at 12.

9

This assertion is not based in fact. As the First

Circuit noted, “While some teachers [] were concerned

about MacRae’s TikTok posts and some students were

aware of the posts and discussed them at school, there

is no evidence in the record that [Hanover Public

Schools] received calls or complaints from students,

parents, or community members.” App. 27a.

Third, Hanover Public Schools once again

asserts that the Court should not grant MacRae’s

petition because any framework concerning

unrelated, preemployment speech on matters of

public concern must take the government’s interest

into account. Whether the Court will uphold the First

Circuit’s decision is not a reason to deny MacRae’s

petition, however. At this stage, the question is

whether the Court should review the appellate court’s

ruling. Because there are no facts in dispute and both

the district and appellate courts employed the

Pickering balancing test to determine that Hanover

Public Schools did not violate MacRae’s free speech

rights when it fired her (App. 24a-25a), this case could

not be a more perfect vehicle for the Court to

determine the rights of the four million public-school

teachers (or the tens-of-millions aspiring teachers)

who spoke (or will speak) on matters of public concern

before they were (or are) employed.

CONCLUSION

The Court should grant the petition.

10

Respectfully submitted,

MICHAEL BEKESHA

Counsel of Record

JUDICIAL WATCH, INC.

425 Third Street, S.W.

Suite 800

Washington, DC 20024

(202) 646-5172

mbekesha@judicialwatch.org

February 14, 2025

Counsel for Petitioner