Over the years, courts have grappled with the legal dimensions of social media, including delineating the bounds of school district authority to regulate or institute consequences for student or employee postings on social media (e.g., Mahanoy Area School District v. B.L., 2021). Currently, the U.S. Supreme Court is deliberating a case involving a different but related issue: whether school board members can block parents’ access to their social media accounts. This issue is related to but more narrowly focused than a recent “Legal Matters” column on employee speech more broadly (Decker et al., 2024).

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The case, O’Connor-Ratcliff v. Garnier (2023), involves two school board members (O’Connor-Ratcliff and Zane) who created Facebook pages and X (formerly known as Twitter) accounts during their campaigns, which they later amended to include their school board titles after election and where they regularly posted about school district-related issues. Two parents (the Garniers) used these social media pages to express their concerns regarding racial inequities in the school district, concerns they felt were not being heard during school board meetings. The Garniers posted multiple times on these accounts. O’Connor-Ratcliff and Zane blocked the parents’ access to the accounts, and the Garniers filed a lawsuit alleging a violation of their First Amendment rights.

The Court heard oral arguments in the case on Oct. 31, 2023 and is expected to render a decision by June. Since the Court has not yet reached a decision, the purpose of this article is to provide an overview of the case and the potential future implications for educational leaders to consider. More specifically, in this article, we present foundational cases that inform the issues before the Court, and summarize the lower court decisions and issues raised during oral arguments in O’Connor-Ratcliff v. Garnier.

Relevant Cases

There are several relevant cases that have informed arguments on both sides of this case. West v. Atkins (1988) is one such case. This case, in which private medical professional Dr. Atkins entered into a government contract to provide medical services in a state prison, lays a foundation for how the Supreme Court views state action. Dr. Atkins was sued by incarcerated individual West for providing inadequate medical treatment. The lower courts decided that Dr. Atkins’ error was not attributable to the state, but the Supreme Court reversed this decision.

The Supreme Court found that an official conducts state action when he “exercis[es] his responsibilities pursuant to state law” (West v. Atkins, 1988, p. 50). Relatedly, a key element in the O’Connor-Ratcliff case is about whether the school board members acted in their official capacities on social media.

Lane v. Franks (2014) is another case that attempts to discern when an employee engages in private action and when they cross over into employee action. In this case, Lane, the director of a program for underserved youth, fired an employee for not showing up to work on multiple occasions. Later, it became clear that the fired employee had engaged in mail fraud and theft. Lane was called to testify as to why he had fired the employee. When the program began to experience budget deficiencies, the president of the program fired Lane, an action that Lane believed was in retaliation for providing testimony. Lane sued for retaliation. A key consideration in this case was whether Lane’s testimony was part of his official duties or if it was speech protected by the First Amendment. The Supreme Court decided that even if an individual’s speech relates to their job duties, the speech is protected if it is on a public matter and falls outside of the individual’s regular duties.

Lower Court Decisions

Both the U.S. District Court for the Southern District of California and the U.S. Court of Appeals for the Ninth Circuit ruled that school board members O’Connor-Ratcliff and Zane acted under the color of state law as district officials in blocking the Garniers from their social media accounts. They also both ruled that blocking the Garniers was a violation of the First Amendment since they were acting in their official roles. However, the two courts utilized slightly different frameworks to reach their conclusions.

The district court found that since the board members’ social media accounts were found to be public forums, and the board members frequently used the social media accounts to communicate with constituents and share information about what was going on in the school district, the board members acted under the color of state law. They “could not have used their social media pages in the way they did but for their positions on PUSD’s Board” (Garnier v. O’Connor-Ratcliff, 2021, p. 10). Furthermore, since the board members, acting in their official duties, blocked the Garniers from their public forums on social media for upwards of three years, the blocking was not narrowly tailored to address the Garniers’ repetitive social media comments, thus resulting in a violation of the First Amendment.

In the Ninth Circuit, the judges applied a more extensive framework to assess whether the board members acted under the color of state law. The judges used the Nexus Test—whether such a close nexus exists between “seemingly private speech” and government action that the challenged speech could be considered public. They further relied on the following framework to make their decision: If the employee (1) purports to act under the color of state law, (2) influences the behavior of others while acting in those official duties, and (3) inflicts harm due to the performance of those duties, the state actor is acting under the color of state law. The Ninth Circuit ultimately determined that the board members did act under the color of state law and violated the First Amendment by blocking the Garniers.

Oral Arguments

During oral arguments, the Justices and the attorneys wrestled with a few factors and potential legal frameworks the Court might apply to determine when a public official is acting as a state actor and when they are acting as a private citizen. On one side of the case, the attorney representing the Garniers argued that since the posts were almost exclusively about school district-related matters, the board members were operating in their official capacity as state actors. In opposition, the attorney representing O’Connor-Ratcliff and Zane argued that these are private accounts that any private citizen could create when running for office.

“Two parents (the Garniers) used these social media pages to express their concerns regarding racial inequities in the school district, concerns they felt were not being heard during school board meetings.”

To guide the Court’s analysis, the Justices and attorneys proposed a series of hypotheticals. One proposed test, offered by the attorney representing the school board members, considers whether a public official has the duty or authority to make the post. Related to this proposed test, the Court raised a question regarding what constitutes a duty, including whether a duty must be explicitly written or can be implied. To implement the duty or authority test, the attorney proposed consideration of control or facilitation of the account, the use of resources to maintain the account, and whether there is an exclusive duty to post the content. Related discussion involved the use of funds or staff to maintain the account, whether a boss could tell the public official what to post, and whether the content was posted elsewhere and if this account was secondary to a primary space where the information could be found.

Another test, proposed by the attorney for the parents, asks whether the government official is doing their job.

To support this test, she argued that out of the hundreds of posts by the school board member, only three were non-job related, and the posts were facilitated by her position as a board member and the information wasn’t available elsewhere. The posts also referred to “our” survey and used “we,” which the attorney argued implied that she was acting on behalf of the school board rather than in her individual capacity. The attorney also noted that school board policy required school board members to clarify when they are acting in their personal capacity, a disclaimer that was not provided on these social media accounts. When questioned about duty, the attorney for the parents suggested the court turn to state law, history and tradition, custom, bylaws, or handbooks.

Final Thoughts

The Court has several issues to consider in an effort to construct a test or framework that can be meaningfully and practically applied not only in this case but in other contexts as well. Whether the court adopts the “duty and authority” test, the “doing their job” test, or some other test, the decision will present implications for educators, administrators, and school board members. It is important for educational leaders to follow the upcoming Court decision because it will provide insights into legal rights and responsibilities under the First Amendment and legally significant distinctions between professional and personal actions.

Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Gabriella Achampong is a senior at Pennsylvania State University, where she is studying education and public policy, with a specific interest in equity and civil rights.

References

Decker, J. R., Fetter-Harrott, A., & Steketee, A. F. (2024, January). Employee speech rights: Content, context, and form matter. Principal Leadership. nassp.org/publication/principal-leadership/volume-24-2023-2024/principal-leadership-january-2024/legal-matters-january-2024/

Garnier v. O’connor-Ratcliff, 513 F. Supp. 3d 1229 (S.D. Cal. 2021).

Lane v. Franks, 573 U.S. 228 (2014).

Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021).

O’Connor-Ratcliff v. Garnier, Docket No. 22-324 (2023).

West v. Atkins, 487 U.S. 42 (1988).