(This story has been updated because an earlier version included an inaccuracy.)
A federal judge has dismissed a lawsuit filed by a former Waukesha School District teacher who claimed the district violated her First Amendment rights when it fired her.
In her lawsuit, Melissa Tempel claimed her firing was in retaliation for comments she made on the social media platform Twitter. Tempel, who had been a teacher at Heyer Elementary School in Waukesha, criticized the district for not allowing the song “Rainbowland” to be performed at a first-grade concert.
In her Sept. 29 ruling dismissing the lawsuit, Judge Nancy Joseph wrote that although Tempel was speaking as a private citizen on a matter of public concern, because her tweet disrupted the district’s operations, its interests took precedence in this case.
“The School District of Waukesha is pleased that this matter has been dismissed by the U.S. District Court,” wrote district Superintendent James Sebert in an email to a reporter. “As always, our focus remains intently on ensuring the academic success, growth and wellbeing of all of our students.”
“We are obviously incredibly disappointed in this decision and disagree with the conclusion. We are carefully evaluating all available options, including an appeal to the Seventh Circuit,” said Tempel’s attorney, Summer Murshid, in an email to a reporter.
Case dates to 2023 tweet
The case dates to March 2023, when Tempel tweeted “My first graders were so excited to sing Rainbowland for our spring concert but it has been vetoed by our administration. When will it end?” The song is a collaboration between Miley Cyrus and Dolly Parton.
Heyer Elementary School principal Mark Schneider and a district administrator ruled the song was “controversial”under the district’s controversial issues policy, according to a statement the district made at the time.
The district placed Tempel on administrative leave in April 2023. In May 2023, Tempel received a letter from Sebert recommending her termination; the School Board voted in July 2023 to fire her.
At Tempel’s July 2023 termination hearing, Schneider testified that he and a district administrator discussed “Rainbowland” after a music teacher asked whether it could be sung at the concert.
Schneider and the administrator agreed there were better song options. Schneider said that he did not ban or veto “Rainbowland,” but told the music teacher to choose a different song. He said his concern was that one of the recording artists for the song was Miley Cyrus, who, he said, promoted inappropriate content for young children, which they might be exposed to if they looked her up online. There were no specific concerns over the song’s use of rainbows — and in fact said he approved the sing-along song “Rainbow Connection” by Kermit the Frog.
Tempel sued in September 2023, claiming she wrote her tweet as a private citizen and that it was protected by the First Amendment. She claimed the district retaliated against her for engaging in protected speech, her lawsuit said.
In her ruling, Joseph said she was not devaluing public school teachers’ rights to speak as private citizens on matters of public concerns. However, she said the law requires “a delicate balancing” of a public teacher’s First Amendment right to expression and the government employer’s right to exercise control over its employees to provide public services effectively. Joseph said she ruled that, in this case, balance favors the Waukesha School District in its operations over Tempel’s interest in expression.
Joseph said Tempel had to prove three things to support her First Amendment retaliation claim:
Joseph said Tempel was speaking as a private citizen and that she was speaking on a matter of public concern. However, in applying the balancing test to see whether Tempel’s expression outweighed the district’s interest in workplace efficiency, she noted that the district’s argument claiming that Tempel’s tweet caused disruption to the district’s operations was valid. That disruption included:
Joseph disagreed with Tempel’s assertions that the disruptions were insignificant, citing testimony from school staff about the nature of the calls they received; testimony from Schneider about staff disharmony and her identifying herself as a teacher and giving information about her first grade class, school and district that attracted widespread attention and criticism of the school, including national media attention.
She also said in response to Tempel’s response that she was trying to bring attention to the “years of sustained public criticism of and media attention about, the District’s controversial issues policy,” that even if the public did not know about the Rainbowland controversy before her tweets, the public already knew about the “controversy surrounding the District’s policies affecting LGBTQ+ rights.”
Contact Alec Johnson at (262) 875-9469 or alec.johnson@jrn.com. Follow him on Twitter at @AlecJohnson12.
This article originally appeared on Milwaukee Journal Sentinel: Federal judge dismisses Melissa Tempel’s lawsuit against the Waukesha School District
Reporting by Alec Johnson, Milwaukee Journal Sentinel / Milwaukee Journal Sentinel
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