Judge says case favors Crook in establishing a violation of First Amendment

In an ongoing legal battle between the Creston Community School District and high school English teacher Melisa Crook, District Judge Rebecca Goodgame Ebinger has stepped in, canceling the termination hearing that was scheduled for Tuesday evening.

In a court order issued Monday, Goodgame Ebinger approved a temporary restraining order for Crook against the defendants, the Creston Community School District, CCSD School Board, Superintendent Deron Stender and Board President Don Gee.

Crook requested the TRO along with a preliminary injunction. An injunction is a a court order that temporarily prevents a party from taking a specific action until a final judgement is made. She also asked to be removed from administrative leave.

The judge approved a 14-day restraining order which halts the board from being able to hold a termination hearing Tuesday. The hearing would have allowed the school board to make the final decision regarding Crook’s employment.

“The defendants are [prohibited] from taking any other adverse employment actions against Plaintiff Melisa Crook based on the Notice of Recommendation to Terminate prepared by defendant Deron Stender,” Goodgame Ebinger wrote in the order. “Defendants are further [prohibited] from taking any adverse employment actions against Crook based on her Facebook comment.”

Crook’s request for a preliminary injunction will be decided at a preliminary injunction hearing scheduled for Oct. 31 at 1 p.m. Goodgame Ebinger denied the request to be removed from administrative leave.

The termination stems from an incident Sept. 10 in which Crook commented on a family member’s Facebook post about right-wing activist Charlie Kirk’s death, saying, “He is a terrible human being… terrible. I do not wish death on anyone, but he him not being here is a blessing.”

From there, Crook was placed on administrative leave and subsequently the school board accepted and filed a recommendation for termination by Stender.

Four factors

While First Amendment rights may not be applicable to private employment, CCSD is a public school and is therefore considered a special-purpose government entity.

“As a general matter, ’public employees do not surrender all their First Amendment rights by reason of their employment,’” the judge cited. “’Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.’”

The court is called to consider four [dataphase] factors, called in granting a TRO - the probability of success; the threat of irreparable harm; the state of the balance between this harm and the injury of granting the injunction; and the public interest.

“The court concludes each Dataphase factor weighs in favor of Crook as to her claims against Stender," Goodgame Ebinger wrote.

The court determined Crook was speaking as a citizen on a matter of public concern when she commented. She could still be terminated for a comment as a private citizen if the school district produced evidence indicaing the speech “had an adverse impact on the efficiency of the employer’s operations.”

In Stender’s investigative report, he stated he received “more than 111 emails and 140 calls” asking for Crook’s termination or to have their children removed from Crook’s classroom.

The report also stated Crook’s comment “resulted in the need to increase law enforcement presence.”

There was a rumor among students about potential violence, but Union County Sheriff Brian Bolton stated to union representation that the District had investigated the rumor and found it not to be credible but requested law enforcement presence anyway.

The school district said Crook’s “inability to effectively work with the parents of her students would significantly hamper her job performance.” They also said her comments made it “impossible to serve as a positive role model for her students.”

The court ruled that mere allegations of disruption without evidentiary support are insufficient.

“Defendants have not produced sufficient evidence to indicate Crook’s speech had an adverse impact on the operations of the District,” Goodgame Ebinger said.

The judge also sided in favor of Crook in the factors of adverse action and irreparable harm, saying, “Crook is likely to succeed in showing Stender took adverse action against her in response to exercise of her First Amendment rights.” She cited precedent that says, “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”

The school district argues they would be “significantly [disadvantaged] by the court interfering with their ability to operate government services” if the court grants the injunction after the Oct. 31 hearing.

The district said issuing the TRO or the preliminary injunction would defeat their decision to discharge an employee and impermissibly extends the employment of a potentially incompetent employee.

Despite this, the order states “The court finds the enforcement of First Amendment rights outweighs any potential employment harm to defendants. Further, the public has a compelling interest in protection of First Amendment and other constitutional rights.”