Marion County Schools denies free-speech violation in teacher's lawsuit over Black Lives Matter post

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Ben Benton, Chattanooga Times Free Press, Tenn.
·4 min read
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May 4—The school system in Marion County, Tennessee, has filed an answer to a federal lawsuit filed by a school teacher who was suspended and reassigned after she posted social media comments critical of George Floyd and the Black Lives Matter protests that followed Floyd's death.

Emily Jayne Bourque, a teacher in the county since 2008 who was formerly assigned to Marion County High School, filed the suit March 9 in U.S. District Court claiming the school system and officials violated her First Amendment right to free speech.

Bourque is seeking rehire to an equivalent job, back pay and benefits, punitive damages and compensatory damages for emotional distress, career damage and physical harm she claims she suffered when, following the post, she was transferred from her position teaching reading, language arts and English at Marion County High School.

Bourque was reassigned to the county's alternative school with the intent of pushing her to resign, the lawsuit claims.

"By posting as a private citizen on her Facebook page, Ms. Bourque was engaged in constitutionally protected speech," her lawsuit states. "Only narrowly defined categories of speech, like true threats or fighting words, are unprotected by the First Amendment."

The suit asserts that "the reason for the transfer was the content and viewpoint of Ms. Bourque's speech. Had she expressed opposite views (similar to her coworkers), the acts complained of in this case would not have occurred."

Additionally, the transfer "was also due to public opinion and perception. This is not a permissible reason for a state to chill speech or retaliate against those who exercise free speech rights," the suit states.

"The fear of 'going viral' is not a reasonable justification for a restriction on an employee's speech," Bourque's lawsuit states.

In its answer filed April 26, the Marion County school system denies that its actions violated Bourque's rights under the First Amendment to free speech as a school system employee.

According to the school system answer by Chattanooga attorneys D. Scott Bennett and Mary C. DeCamp, the school system's interest in its own effective and efficient operation "outweighs any interest [Bourque] may have in her free speech with regard to the Facebook post at issue," the document states.

The school system's actions "were taken in good faith and for legitimate and non-retaliatory reasons in the interest of the effective and efficient operation of the Marion County school system," and the system had a right to address issues created by Bourque's June 5, 2020, post "to the extent they substantially disrupted or had the potential to substantially disrupt the efficient operations of the Marion County school system," the answer to the suit states.

The school system also denies public school teachers have unlimited freedom of speech with regard to their posts on social media.

School system attorneys deny that any fear of "going viral" motivated official actions with regard to Bourque's post about Floyd and BLM.

Floyd, a Black man, died May 25, 2020, under the knee of a white Minneapolis police officer, sparking weeks of nationwide and even worldwide protests for racial justice and against police brutality. The police officer accused in Floyd's death, Derek Chauvin, was found guilty April 20, 2021, of unintentional second-degree murder, third-degree murder and second-degree manslaughter.

Bourque wrote, "OK, yes. BLM, I agree that all lives matter and realize that BLM is not saying that they are the only ones that matter. I have seen racism even against whites, my family included, when in high black communities; it does make you feel unsafe. Although I have not personally witnessed racism against a black person due to the color of their skin, it doesn't mean it doesn't happen. My heart breaks for people of all colors that I have personally known if they have been victims of this. I have known amazing people of all colors as well as thugs of all colors.

"I do NOT agree with all these protests and violent riots taking place at all."

She made several other derogatory comments about Floyd and concluded, "All of this to say they need a better role model! Why do all of this over a known felon who commits violent crimes?"

According to the fact-checking website Snopes, Floyd was charged and convicted of aggravated robbery in 2007 and had several drug and theft convictions in prior years.

Federal scheduling orders require both parties to confer within 30 days to consider the nature and basis of the case and to discuss a potential, prompt settlement or move forward with presentation before a federal magistrate judge.

Contact Ben Benton at bbenton@timesfreepress.com or 423-757-6569. Follow him on Twitter @BenBenton or at www.facebook.com/benbenton1.