Supreme Court Refuses to Take School Teacher Free Speech Case – Justice Thomas Files Statement Agreeing with EPP’s Amicus Brief

Supreme Court Refuses to Take School Teacher Free Speech Case – Justice Thomas Files Statement Agreeing with EPP’s Amicus Brief

We have been following a case involving Massachusetts high school teacher Kari MacRae (pictured above), who was fired over some anti-CRT social media “memes” she posted before she was even hired: Massachusetts Teacher Fired Over Opposition To CRT, LGBTQ Agenda In Schools.

After her firing, with assistance from Judicial Watch, she filed a lawsuit against the school board that fired her: Judicial Watch Suing on Behalf of Teacher Claiming She Was Fired for Social Media Posts About Critical Race Theory

The November 29, 2021 Judicial Watch press release published at the time of filing suit explains what happened:

Judicial Watch Files Federal Civil Rights Lawsuit for Mass. High School Teacher Fired for Social Media Posts Objecting to Critical Race Theory in Schools

Judicial Watch announced today that it filed a federal civil rights lawsuit on behalf of Kari MacRae, a Massachusetts high school teacher who was fired in retaliation for posts on social media objecting to the inclusion of critical race theory in schools…

The lawsuit, which was filed in the [federal] United States District Court for the District of Massachusetts, asks for damages against Hanover School Superintendent Matthew Ferron and Hanover High School Principal Matthew Mattos for retaliating against MacRae, a math/business teacher at Hanover High School, for exercising her First Amendment rights.

The lawsuit details that MacRae, who was hired as a Hanover High School teacher on August 31, 2021, was fired over several TikTok video posts that were made months prior to her hiring at the school. MacRae, who in May of 2021 was elected to the Bourne School Committee, said she made the posts in her personal capacity as a citizen and candidate for public office…

“Kari MacRae was viciously targeted and unlawfully fired as a teacher because she exercised her First Amendment rights to criticize critical race theory,” stated Judicial Watch President Tom Fitton. “This civil rights lawsuit aims to hold accountable school district officials who are so desperate to push critical race theory that they will trample the civil rights of our client, Ms. MacRae.

Well, the Massachusetts federal court granted the school “summary judgment,” which meant the school won without even having to go to trial, and when Kari MacRae appealed, the First Circuit federal court of appeals affirmed the grant of summary judgment:

Positive that Defendants had unconstitutionally retaliated against her for exercising her First Amendment rights, Macrae took them to court. But Defendants didn’t agree with her take on things, and neither did the district court, which granted their motion for summary judgment. Now on appeal, Macrae implores us to do some course correction and fix what she says the district court got wrong. After taking the time to carefully review both sides’ arguments, however, we conclude that the district court got it right. In other words, we affirm.

So Kari MacRae filed a Petition for Certiorari, asking the U.S. Supreme Court to take the case. The Equal Protection Project team here at Legal Insurrection reviewed what had happened in the case, noted some bogus logic in the First Circuit’s opinion, and after some internal discussions, felt that it made sense to file an amicus curiae, or friend-of-the-court, brief with the Supreme Court. EPP and especially Legal Insurrection have had a longstanding commitment to supporting the free speech rights of teachers and parents in the public school system, who often have their speech rights curtailed by overbearing left-wing school administrators. So it made sense.

• Equal Protection Project Files SCOTUS Brief Supporting Right Of Public School Teachers To Criticize CRT:

EPP’s amicus brief was filed in support of Macrae on October 30, 2024. In the brief, which was filed pro bono on EPP’S behalf by Boston intellectual property attorney Ron Cahill of Barnes & Thornburg LLP, EPP supports Macrae’s argument for review by the Supreme Court, namely that the First Circuit improperly used the Pickering Balancing test on speech made before employment, but also argues several other key points unaddressed by Macrae.

One of the key points EPP raised was that the First Circuit federal court of appeals improperly afforded MacRae less First Amendment protection because the court thought her speech was demeaning, but that is not the law. As the Supreme Court ruled in the infamous “Slants” trademark case about the Korean rock band that wanted to trademark their name, just because something is derogatory does not mean it is automatically worth less from a free speech (or trademark worthiness) perspective.

From EPP’s amicus brief:

Under the First Amendment, political speech is afforded the highest level of protection…When courts apply only their own judgment in determining what is disparaging, especially without the full record of a trial, at least two problems arise. First, the courts involve themselves in cultural issues in which they have no expertise…Second, and more concerning, the issues resolved below on summary judgment are objectively partisan ones. The appeals court based its analysis on the memes relating to transgender issues. While growing numbers of Americans agree with the statement that gender is determined by sex at birth, Republicans agree at a 91% rate and Democrats only agree at a 39% rate…Contrary to the law of this Court, the appeals court applied its own judgment to conclude that the views held by one of the two main political parties in America are not worthy of the highest levels of protection…

Unfortunately, the Supreme Court has decided not to review the case, but Justice Thomas wrote a special “statement,” much of which was devoted to making the exact same argument EPP did in its amicus brief.

From Justice Thomas’ statement:

The First Circuit’s analysis strikes me as deeply flawed. To start, I do not see how the tone of MacRae’s posts can bear on the weight of her First Amendment interest. ‘Speech on matters of public concern is at the heart of the First Amendment’s protection.’ Snyder v. Phelps, 562 U. S. 443, 451–452 (2011) (internal quotation marks and alterations omitted). And, ‘[t]he inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.’ Rankin v. McPherson, 483 U. S. 378, 387 (1987). [H]umor, satire, and even personal invective can make a point about a matter of public concern.” De Ritis v. McGarrigle, 861 F. 3d 444, 455 (CA3 2017) (internal quotation marks omitted). Accordingly, we have declined to ‘affor[d] less than full First Amendment protection’ even for speech that we have deemed ‘particularly hurtful,’ such as the picketing signs used by the Westboro Baptist Church. Snyder, 562 U. S., at 454–456; see id., at 454 (listing, among other Westboro signs, placards reading, “‘God Hates the USA/Thank God for 9/11,’” “‘God Hates Fags,’” and “‘Thank God for Dead Soldiers’”). Against this backdrop, I do not see how the First Circuit could discount the First Amendment value of MacRae’s comparatively mild posts, all of which reflected positions that represent ‘by no means an isolated segment of public opinion.’ Noble v. Cincinnati and Hamilton Cty. Public Library, 112 F. 4th 373, 382 (CA6 2024)…

It undermines core First Amendment values to allow a government employer to adopt an institutional viewpoint on the issues of the day and then, when faced with a dissenting employee, portray this disagreement as evidence of disruption. And, the problem is exacerbated in the case of an employee such as MacRae, who expressed her views only outside the workplace and before her employment.

We are sorely disappointed that SCOTUS decided not to review this case, but it is satisfying to know that our work filing the amicus brief in this case was not completely for naught. Although Justice Thomas did not cite EPP by name, the similarity between our “disparaging speech” argument and what Justice Thomas stated is unmistakable.

Speaking of “sorely disappointed,” Judicial Watch is too, as the below X Post makes clear:

Let’s cut to the chase: Kari MacRae was fired because she spoke out against woke critical race theory before she was hired. The Supreme Court’s decision not to take up her case is a missed opportunity to uphold the First Amendment.

BREAKING: Judicial Watch President @TomFitton made a statement regarding the U.S. Supreme Court’s denial of its petition that challenged a lower court decision against Kari MacRae, a Massachusetts high school teacher who was fired in retaliation for social media posts, which… pic.twitter.com/rBeAUBBbsD

— Judicial Watch ⚖️ (@JudicialWatch) June 30, 2025

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