What Should Happen When a Schoolteacher Posts Hateful Memes to TikTok?–MacRae v. Mattos

Kari MacRae is a grandmother to four grandkids and a Republican candidate for Massachusetts state senate. During the relevant time period, she was a public school teacher. She maintained a TikTok account at the alias “NanaMacof4.” (Nana is a synonym for grandma). TikTok eventually terminated her account for violating its community standards.

In 2021, she “liked, shared, posted, or reposted” 6 memes to her TikTok. My apologies for the memes’ crudeness, but the details about those 6 memes matter:

• A photo of Dr. Rachel Levine, the United States Assistant Secretary for Health and a transgender woman, with text that reads: “‘I’m an expert on mental health and food disorders.’ . . . says the obese man who thinks he’s a woman.”
• A text display that reads: “I feel bad for parents nowadays. You have to be able to explain the birds & the bees . . . The bees & the bees . . . The birds & the birds . . . The birds that used to be bees . . . The bees that used to be birds . . . The birds that look like bees . . . Plus bees that look like birds but still got a stinger!!! . . .”
• A photo of a muscular, bearded man wearing a sports bra with text at the top that reads: “Hi my name is Meagan, I’m here for the Girl’s track meet.” The photo then includes additional text at the bottom that reads: “Equality doesn’t always mean equity.” [Note: MacRae subsequently claimed that a third party posted this meme and tagged her. This could have raised an interesting Section 230 issue, but that didn’t come up.]
• A photo of a young and (presumably) white American man with text that reads: “Retirement Plan: 1) Move to Mexico 2) Give up citizenship 3) Come back illegally 4) Set for life!”
• A photo of a panda bear with text that reads: “Dude, racism is stupid. I am black, white, and Asian. But everyone loves me.”
• A photo of Thomas Sowell with a quote that reads: “Racism is not dead, but it is on life support — kept alive by politicians, race hustlers and people who get a sense of superiority by denouncing others as ‘racists.'” The photo then includes additional text at the top that reads: “Thank you Mr Sowell!!”

Below I’m including screenshots of these six memes (again, apologies for the crudeness). You can see the third meme was posted by “The_Art_Guy__2017,” not MacRae.

I can imagine how these memes might seem normal and even tame in MAGA circles. As someone not in the target audience, the memes offended and confused me.

After posting these memes, MacRae applied for and got a new teaching job at the Hanover public high school. A few weeks after she started, the school administration learned of her TikToking and fired her because her social media posts “would have a significant negative impact on student learning.” MacRae sued the high school for First Amendment violations.

After some preliminaries, the analysis devolves into a standard Pickering balancing test between a teacher’s free speech rights and a school’s right to be free from disruption.

In MacRae’s favor, “some of her memes touched upon hot-button political issues, such as gender identity, racism, and immigration.” However, “MacRae’s First Amendment interest weighs less than it normally would because some of her memes comment upon such hot-button political issues in a mocking, derogatory, and disparaging manner.”

Also in MacRae’s favor, there was no evidence that the memes actually disrupted the school. In the school’s favor, their concerns were reasonable. MacRae’s posts had sparked conversation and media cover in her hometown of Bourne, where she was on the school board. Further,

MacRae had a much more public-facing and, particularly, student-facing role at Hanover being a teacher, than she did at Bourne….MacRae’s classes included LGBTQ+ students whose identities her posts could reasonably be seen to mock….[the administrators] consistently testified that students would not feel safe or comfortable learning from MacRae, given the potential to perceive some of her posts as transphobic, homophobic, or racist….

MacRae, a newly-hired teacher, was hired to educate a diverse population of young students.

As a result of its reasonable concerns about MacRae’s TikToking on the students she was teaching, the high school defeated MacRae’s lawsuit.

Implications

The Limited Free Speech Rights of Public-Facing Public Servants. I’m a tenured professor, so I probably wouldn’t lose my job if I TikToked like MacRae did (not that I would do so). However, my students would be very upset, and my colleagues would shun me.

The social media rules are different for public servants who provide public-facing services. If a police officer, a nurse, or a public school teacher publicly (and in this case unapologetically) articulates hateful views, it raises legitimate constituent fears that those views will infect how the public servant performs their job, including the employee’s tiny day-to-day professional judgments and discretionary choices that the law cannot fully regulate. That’s an untenable situation for everyone. This is one of the reasons why governments adopt social media policies for employees–in part to help protect bigots from themselves.

[Another recent example: Vanleuven v. Prince George’s County Police Department, 2024 WL 3221077 (Md. App. Ct. June 28, 2024), upholding the firing of a police officer who “posted a meme to his personal Instagram page consisting of the phrase “Mein Neger” overlaid on an image of Adolf Hitler. Mr. Vanleuven commented on the post: “Lmao! Why does everything sounds [sic] funnier in German? So wrong … Lol.”]

What Should Have Happened to MacRae? Go back and review the contents of the memes MacRae posted. The underlying sentiments are repulsive to me, but I’m less clear what the school district should have done about it. Was termination too strong a remedy? Too weak? Inapposite to the concerns?

As I’ve indicated over the years, when I see people making mistakes in school settings, I look for ways to turn that into pedagogical moments and perhaps engage in restorative justice. Thus, my first reaction to MacRae’s meme-ing was to wonder if the school could have engaged a community-wide discussion about the importance of tolerance of people for different views and life circumstances, and perhaps also explore restorative ways to repair the community and bring it closer together. But those aspirations seem impossible in this case because MacRae apparently felt no remorse even after it became obvious that she was denigrating some of her students.

Do you have any better ideas what the school district should have done in MacRae’s case?

Case Citation: MacRae v. Mattos, 2024 WL 3218851 (1st Cir. June 28, 2024)