I meant to blog about this case last April when it was issued, but got sidetracked with Kennedy v. Bremerton Public School matters, so I will post this now, because this is one of the few cases that addresses an issue that school boards are increasingly confronting: can a school board end a business relationship with an outside vendor because the board does not like political or social positions that are publicly taken by the vendor?  During the last four years, many school boards have been pressured to stop doing business with outside companies that the community perceives to have the “wrong” (however the community defines “wrong”) position on various political or social issues, usually involving LGBTQ or racial issues.  While I think many school boards believe that there are no major repercussions (outside of a possible breach-of-contract claim) to ending such vendor relationships, Riley’s American Heritage Farms v. Elsasser, 32 F.4th 707 (9th Cir. 2022) may teach us differently.

Riley’s Farm was an outside vendor that provided educational field trip venues and opportunities for public school children, with whom the Claremont Unified School District (a school district in California) had a longstanding business relationship. Riley, the owner of the Farm, had made several tweets on his personal Twitter account about a range of controversial topics, including President Trump’s alleged relationship with Stormy Daniels, Senator Warren’s heritage, and Riley’s opinion on gender identity.  The tweets had nothing to do with Riley’s Farm or its operations, and did not reference anything related to the school district or school field trips in general.

After a few parents complained to the school, however, and indicated that they were not comfortable with their children attending field trips to the Farm, the administration decided to stop using the Farm for such trips.  Riley’s Farm brought suit against the school district, arguing that ending the business relationship with the Farm because of Riley’s personal tweets violated the First Amendment.  As an initial matter, the Court found that the relationship between the vendor and the district was similar enough to the employer-employee relationship to warrant using the Connick-Pickering test used for employment retaliation cases.

After concluding that Riley’s tweets were protected, because they discussed matters that fell within “the core of protected First Amendment activity including politics, religion, and issues of social relations,” the Court held that summary judgment was inappropriate for the school district, because a fact issue existed as to whether enough disruption had occurred in the school workplace as a result of Riley’s posts:

While Hamlett asserted that multiple parents asked the [] principal to either excuse their children from the field trips or choose an alternative venue, there is no evidence regarding the number of parents or the nature of those complaints.

The Court examined several similar cases in which dozens or hundreds of parents and/or students had complained about the speech at issue and asked that the students be removed from the teachers’ classrooms, and concluded that unlike in those cases, “the record here shows only a handful of parent requests that a child be excused from a single field trip. Such requests do not evidence the substantial disruption that may arise from a large number of parents threatening to remove their children from school.”

However, the court ultimately granted qualified immunity to the school officials, concluding that there were no previous cases that would have placed “beyond debate” the question of whether a school district could cease patronizing a company providing historical reenactments and other events for students because the company’s principal shareholder had posted controversial tweets that led to parental complaints.