Georgia Clark v. Fort Worth Independent School District

• Court: Court of Appeals of Texas
• Decided: January 25, 2023
• Docket: 03-21-00275-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00275-CV

Georgia Clark, Appellant

v.

Fort Worth Independent School District, Appellee

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-19-008899, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING

MEMORANDUM OPINION

Appellant, Georgia Clark, challenges the termination of her continuing contract

with Fort Worth Independent School District where she was a high-school teacher. Although an

independent hearing examiner recommended that Clark’s contract not be terminated, the school

district decided to terminate Clark’s contract. Clark appealed to the Commissioner, who reversed

the school district’s decision. The school district appealed to the district court, which reversed

the Commissioner’s decision and reinstated the school district’s decision to terminate Clark’s

contract. Clark’s first three issues challenge the school district’s decision based on the statutory

requirements for a school board’s written decision terminating a teacher’s contract. Specifically,

Clark asserts that the Commissioner correctly determined that: (1) the board failed to adopt

conclusions of law sufficient to support the determination that good cause existed to terminate

Clark’s contract; (2) the board failed to state the legal basis and reasons for changing or rejecting

the hearing examiner’s proposed conclusions of law; and (3) the board failed to establish that Clark violated the holding in Plyler v. Doe, 457 U.S. 202 (1982). Clark’s fourth issue raises a

First Amendment claim. We affirm the district court’s final judgment.

FACTS

Clark was employed by Fort Worth ISD under a continuing contract during the

2018–2019 school year. In May 2019, Clark publicly posted the following tweets on the social-

media platform Twitter, which were directed to then-President Donald Trump: 1

[posted May 17, 2019]

Mr. President, Fort Worth Independent School District is loaded with illegal students from Mexico. Carter-Riverside High School has been taken over by them. Drug dealers are on our campus and nothing was done to them when drug dogs found the evidence.

I contacted the feds here in Fort Worth a few months ago and the person I spoke with did not want to help me or even listen to me. The campus police officer spends his time texting on his cell phone and doing the bidding of Jennifer Orona, Hispanic assistant . . .

. . . principal who protects certain students from criminal prosecution. There is fraud being committed by Orona and how the Special Education Department on our campus is being run. FWISD knows about this and turns a blind eye to it.

I need protection from recrimination should I report to the authorities but I do not know where to turn. I contacted the Texas Education Agency and then my teacher organization. Texas will not protect whistle blowers. The Mexicans refuse to honor our flag.

I do not know what to do. Anything you can do to remove the illegals from Fort Worth would be greatly appreciated. My phone number is [. . .] and my cell is [. . .]. Georgia Clark is my real name. Thank you.

[posted May 22, 2019]

Mr. President, I asked for assistance in reporting illegal immigrants in the FWISD public school system and I received an alarming tweet from someone identifying

1 The hearing examiner made findings of fact that Clark believed she was communicating with the president privately. However, her tweets were posted publicly.

2 himself as one of your assistants followed by a second tweet from the same person ...

. . . with the f word used in the dot com. I promptly deleted both tweets and sent a message to Twitter about it. I really need a contact here in Fort Worth who should be actively investigating and removing the illegals that are in our public school system. Thank you.

The school district was notified of the tweets on May 29, 2019, two days before the school year

ended. That same day, the school district placed Clark on administrative leave. Also on the

same day, multiple news outlets began publishing stories regarding the tweets and requesting

information from the school.

The school district received multiple emails from concerned current and former

students, parents, and community members. During the school board’s June 4, 2019 meeting,

fourteen members of the public spoke about their concerns regarding the tweets during the public-

comment portion of the meeting. Their concerns included that students may be kept home from

school due to fear created by the tweets and that the tweets could affect students’ learning, mental

health, and general well-being. After hearing public comment, the board voted unanimously to

propose the termination of Clark’s contract.

Clark then requested a hearing before an independent hearing examiner. See Tex.

Educ. Code § 21.253. The hearing examiner held an evidentiary hearing, issued findings of fact

and conclusions of law, and ultimately recommended that Clark’s contract not be terminated. He

concluded that there was not good cause for termination because Clark’s tweets did not violate any

state or federal law or policy and that her tweets were protected free speech and her interests

outweighed the district’s. Regarding the disturbance caused to the district, the examiner found

that on May 28, 2019, the district began receiving numerous comments through social media

websites, phone calls, emails, and text messages expressing concern, support, and outrage

3 regarding the tweets, and began receiving media inquiries the next day. The examiner also found

that at least one individual tweeted an intent to come onto district property to visit Clark regarding

her tweets; the district superintendent received a text message that included “nice house by the

way,” which he felt threatened by and which caused him to file a police report; the school’s

principal testified that at least one parent wanted to keep her children home from school out of fear

resulting from the tweets and the public reaction to them; the district’s social media coordinator

testified that the volume of the reaction made it more difficult for her to perform her duty of

monitoring social media for threats to the district for a short time; the public reaction caused “some

disruption to [district] operations and created concern about safety and security for students and

staff at” the district; and the tweets were “the subject of widespread publicity by numerous media

outlets beginning on May 29, 2019, including local, national, and international outlets.” The

examiner also made the following specific findings regarding a school board meeting at which

members of the public made public comment regarding Clark’s tweets:

During the Public Comment portion of the June 4, 2019, Board meeting, fourteen people, including parents, current and former students, and community members, expressed concern and serious reservations regarding Ms. Clark’s ability to fairly educate students at [the district] without bias or discriminatory animus. . . .

At least one commenter at the Public Comment portion of the June 4, 2019, Board meeting expressed the concern that Ms. Clark’s tweets could have a chilling effect on immigrant students attending school at [the district].

Several commenters at the Public Comment portion of the June 4, 2019, Board meeting expressed their concern that Ms. Clark’s tweets and classroom conduct could affect students’ learning, mental health, and general well-being.

Following the June 4, 2019 Board meeting, [the district] and its staff and officials continued to receive numerous phone calls, emails, and other messages regarding Ms. Clark’s conduct and [the district’s] decision to propose termination of her contract.

4 The examiner concluded that “Clark’s tweets were free speech,” her tweets were statements of a

citizen on a matter of public concern protected by the U.S. constitution, the evidence was not

sufficient to show that the tweets caused a substantial and continuing disruption to the efficient

functioning of the district, and her interest in free speech outweighed the district’s interest in the

efficient provision of public services.

The board later issued its decision to terminate Clark’s contract, based on its

determination that good cause existed to do so. See id. § 21.257(a-1) (authorizing board to reject

determination by hearing examiner regarding good cause), .259(b)(1)(same). The district

concluded that good cause existed because Clark’s tweets “failed to comply with both the District’s

policies and federal law by publicly attempting to instigate the removal of FWISD students based

on their ethnicity and/or immigration status.” The district also concluded that its interest

outweighed Clark’s.

Clark appealed the board’s decision to the Commissioner. See id. § 21.301(a). The

Commissioner reversed the school district’s decision to terminate Clark’s contract and ordered

her either to be reinstated with backpay and benefits or to be paid one year’s salary from the date

she would have been reinstated. The commissioner concluded that the school district had not

entered any conclusions of law regarding good cause. The Commissioner declined to resolve the

Pickering 2 balance test regarding Clark’s free speech retaliation claim, and thus did not decide the

First Amendment issue.

2 Pickering v. Board of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968).

5 The school district appealed the Commissioner’s decision to the district court. Id.

§ 21.307. The district court reversed the Commissioner and reinstated the board’s decision. This

appeal followed.

STANDARD OF REVIEW

In reviewing the district court’s judgment, we focus on the decision of the

Commissioner. See id.; Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000).

We “may not reverse the decision of the commissioner unless the decision was not supported by

substantial evidence or unless the commissioner’s conclusions of law are erroneous.” Tex. Educ.

Code § 21.307(f). Under substantial-evidence review, we

shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov’t Code § 2001.174(2).

Substantial-evidence review requires “‘only more than a mere scintilla,’ to support

an agency’s determination.” Davis, 34 S.W.3d at 566 (quoting Railroad Comm’n v. Torch

Operating Co., 912 S.W.2d 790, 792–93 (Tex. 1995)). “Essentially, this is a rational-basis test to

6 determine, as a matter of law, whether an agency’s order finds reasonable support in the record.”

Jenkins v. Crosby Indep. Sch. Dist., 537 S.W.3d 142, 149 (Tex. App.—Austin 2017, no pet.).

“[T]he evidence in the record actually may preponderate against the decision of the agency

and nonetheless amount to substantial evidence.” Texas Health Facilities Comm’n v. Charter

Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984). Any legal basis in the record may

support affirming the Commissioner’s decision. Edinburg Consol. Indep. Sch. Dist. v. Esparza,

603 S.W.3d 468, 478 (Tex. App.—Corpus Christi–Edinburg 2020, no pet.); Goodie v. Houston

Indep. Sch. Dist., 57 S.W.3d 646, 650 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); see

Texas Emp. Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962) (“If the Commission’s conclusion

was correct, it is immaterial that it may have proceeded to the conclusion on an erroneous theory

or may have given an unsound reason for reaching it.”). But “[t]he Commissioner may not

substitute his or her judgment for that of the board unless the board’s decision is: (1) arbitrary,

capricious, or unlawful; or (2) not supported by substantial evidence.” Esparza, 603 S.W.3d

at 471; see Tex. Educ. Code § 21.303(b).

ANALYSIS

Good Cause

We turn first to Clark’s three issues that concern the good-cause determination.

A school district may terminate a teacher’s continuing contract at any time for good cause.

Tex. Educ. Code §§ 21.154(4), .156(a). Good cause in the context of terminating a continuing

contract is statutorily defined as “the failure to meet the accepted standards of conduct for the

profession as generally recognized and applied in similarly situated school districts in this state.”

Id. § 21.156(a).

7 When a school district proposes termination of a teacher’s contract, the teacher

may request a hearing before an independent hearing examiner, who is assigned by the

Commissioner. Id. § 21.253. The hearing examiner must issue a written recommendation that

includes findings of fact and conclusions of law and may include a proposal for granting relief.

See id. §§ 21.251–.257.

After considering the hearing examiner’s recommendation, a school board must

announce a decision that includes findings of fact and conclusions of law, and the board must

“state in writing the reason and legal basis for a change or rejection” made to a conclusion of law

or a finding of fact of the hearing examiner. See id. §§ 21.258–.259(a)(1), (d). A school board is

permitted to “adopt, reject, or change the hearing examiner’s: (1) conclusions of law, including a

determination regarding good cause for suspension without pay or termination; or (2) proposal for

granting relief.” Id. § 21.259(b)(1). However, a school board may only reject or change a finding

of fact of the hearing examiner if the finding of fact is not supported by substantial evidence. Id.

§ 21.259(c). Notably, a hearing examiner’s determination regarding good cause for termination is

considered a conclusion of law. Id. § 21.259(b)(1).

A teacher may appeal the board’s decision to terminate the teacher’s contract to

the Commissioner. See id. § 21.301. The Commissioner may not reverse a board’s decision to

terminate a teacher’s contract unless the board’s decision is arbitrary, capricious, or unlawful or

not supported by substantial evidence. Id. § 21.303(b)(1). The Commissioner may not reverse a

decision of a school board based on a procedural irregularity or error by the board “unless the

Commissioner determines that the irregularity or error was likely to have led to an erroneous

decision.” Id. § 21.303(c). The Commissioner must issue a written decision that includes findings

8 of fact and conclusions of law. See id. § 21.304. The Commissioner’s decision may be appealed

by either party to a district court. Id. § 21.307.

Here, the board rejected the hearing examiner’s decision concerning good

cause. The Commissioner, however, did not consider whether the board’s changed and adopted

conclusions of law were based on substantial evidence. See id. § 21.303(c). Instead, the

Commissioner found that the board failed to make any conclusions of law regarding good cause.

Specifically, the Commissioner concluded that:

While the board rejected in whole or in part certain Conclusions of Law, no new or changed Conclusions of Law were adopted. There is no Conclusion of Law in [the board’s] Decision that there is good cause to terminate Petitioner’s contract and no Conclusions of Law which are determinations regarding good cause that support the ultimate conclusion that good cause exists to terminate Petitioner’s contract.

....

[The board] could have adopted a conclusion of law that there is good cause to terminate [Clark’s] contract. It did not.

For the reasons explained below, we determine that the board adopted conclusions of law regarding

good cause and that its conclusions were supported by substantial evidence. See id.

There is no statutory requirement that a school board adopt conclusions of law in a

specific manner. The only requirements are that the decision include findings of fact and

conclusions of law and that the school board “shall state in writing the reason and legal basis for a

change or rejection made under this section.” Id. § 21.259(a)(1), (d). “[T]he label attached,

‘finding of fact’ or ‘conclusion of law,’ is not determinative; the focus is on whether the issue

determined is ultimately one of policy, and if so, whether a school board’s decision is supported

by substantial evidence and free of erroneous legal conclusions.” Davis, 34 S.W.3d at 566.

9 The first sentence of the introduction section in the board’s decision states: “The

Board determines that good cause exists to terminate the employment of Georgia Clark based

on the statements she publicly posted on Twitter.” The same section ends with the sentence:

“Accordingly, the Board rejects the Hearing Examiner’s Recommendation and concludes that

good cause for the termination of Ms. Clark’s continuing employment contract exists in this case.”

The board then detailed in Section II and Section III the facts, policies, and multiple legal theories

that it relied upon to reach this conclusion. In Section V, the board went through the hearing

examiner’s findings and conclusions and detailed which it adopted or rejected, explained which

findings of fact were actually conclusions of law because they were good-cause determinations,

identified which findings of fact were actually explanations of fact, and identified which findings

of fact it rejected because they were unsupported by substantial evidence. The board ended its

decision by restating that it found that good cause existed for the termination of Clark’s contract.

Based on our review of the board’s written decision, which states that “based on the statements

she publicly posted on Twitter[,] . . . . [the board] concludes that good cause for the termination of

Ms. Clark’s continuing employment contract exists in this case,” and which includes detailed

descriptions of the facts and legal theories relied on, we determine that the school board adopted

conclusions of law regarding good cause. Thus, the Commissioner’s decision based on the

conclusion that the district failed to adopt any conclusions of law regarding good cause is not

supported by substantial evidence. See id. § 21.307(f).

Because the school board adopted conclusions of law and gave written reasons and

legal basis for its changes and rejections, we then look to whether the school board’s decision to

10 terminate Clark’s continuing contract was based on substantial evidence. 3 Tex. Educ. Code

§ 21.307(g) (“The court may not reverse a decision of the commissioner based on a procedural

irregularity or error by . . . the commissioner unless the court determines that the irregularity or

error was likely to have led to an erroneous decision by the commissioner.”); North E. Indep. Sch.

Dist. v. Riou, 598 S.W.3d 243, 253–54 (Tex. 2020) (determining that Commissioner’s reasoning

for concluding good cause was error but affirming Commissioner’s decision under different

theory). If the board’s decision was not supported by substantial evidence, we must affirm the

Commissioner’s ruling. Tex. Educ. Code §§ 21.209, .307(f). “The question whether an agency’s

determination meets [the substantial evidence] standard is one of law.” Davis, 34 S.W.3d at 566.

The Supreme Court of Texas has explained the statutory definition of “good cause”

for termination under a continuing contract as follows:

The statute requires evidence of a failure to meet generally accepted standards of professional conduct but not, as Riou suggests, evidence that similarly situated school districts would have ended her contract under these specific facts. District policies implementing state and federal law denote generally accepted standards of professional conduct—such policies reflect standards applicable to school districts throughout the state. Evidence of a failure to meet a district policy that implements state law supports a good cause determination.

Riou, 598 S.W.3d at 246.

One good-cause reason given by the school district was Clark’s failure to comply

with the following district policy, adopted on February 28, 2017:

WHEREAS, the Fort Worth Independent School District Mission is to prepare ALL students for success in college, career, and community leadership; and,

3 Because the Commissioner found that the school board failed to make any conclusions of law regarding good cause, he did not consider whether there is substantial evidence to support the board’s decision.

11 WHEREAS, it is FWISD’s commitment to our community that our schools will create a safe and caring learning environment so as to foster a culture of trust and respect; and,

WHEREAS, FWISD policy FFFI (LOCAL), prohibits discrimination, including harassment, against any student on the basis of race, color, religion, gender, sexual orientation, gender identity and expression, national origin, disability, or any other basis prohibited by law; and,

WHEREAS, under the 1982 United States Supreme Court ruling (Plyler v. Doe, 457 U.S. 202), all children are entitled to a public education regardless of their immigration status or the status of their parents; and,

WHEREAS, every student should go to school to safely learn and engage with their teachers and classmates; and,

WHEREAS, we want our community to feel that schools and classrooms are safe, welcoming, and inclusive places for all students and all families, regardless of their immigration status;

NOW, THEREFORE, BE IT RESOLVED that the Fort Worth Independent School District will strive to create the safest possible environments for its students and employees, providing them the foundation needed to learn, thrive, seek assistance and information, and reach each child’s potential in an education-focused environment, free of insecurity and fear, for all its employees, students, and their families, regardless of their immigration status.

This policy cites the federal law that it implements: Plyler v. Doe extended the

benefit of the Equal Protection Clause to undocumented school children and children of

undocumented parents. 457 U.S. at 215. Undisputed evidence in the record—the tweets posted

by Clark to former-President Donald Trump—supplies substantial evidence that Clark violated the

school district’s policy. Specifically, the school board explained that because Clark’s tweets called

for an investigation to identify and remove students from the school district based on immigration

status, the tweets violated the district’s policy. Accordingly, we hold that substantial evidence

supports the school board’s decision that it had good cause to terminate Clark because of her

violation of district policy implementing federal law. See Riou, 598 S.W.3d at 246 (explaining

12 that evidence of failure to meet district policy that implements state or federal law supports good

cause determination); Davis, 34 S.W.3d at 567.

We overrule Clark’s first three issues.

Free Speech

Clark argues in her fourth issue that the contents of her tweets were protected free

speech that the school district is prohibited from using as the basis for terminating her contract.

The school district argues that it is not prohibited by free-speech protections from terminating

Clark’s contract because the Pickering balancing test weighs in the school district’s favor. 4 See

Pickering v. Board of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968).

Here the evidence was undisputed that Clark’s tweets were not made pursuant to her official duties.

Although the parties do not dispute that the tweets included topics of public

concern, “an appellate court has an obligation to ‘make an independent examination of the whole

record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the

field of free expression.’” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984);

see also Connick v. Myers, 461 U.S. 138, 148, n. 7 (1983) (“The inquiry into the protected status

of speech is one of law, not fact.”); City of Dallas v. Stewart, 361 S.W.3d 562, 577 (Tex. 2012)

(noting that appellate courts are required to conduct an independent factual constitutional

analysis to determine whether speech falls within constitutional protections). “Speech is of public

concern when it can ‘be fairly considered as relating to any matter of political, social, or other

concern to the community.’” Snyder v. Phelps, 562 U.S. 443, 453 (2011); see also King v. Paxton,

4 The school district also argues Clark waived her free-speech rights when she signed her contract. For purposes of this opinion, we assume without deciding that Clark did not waive her free speech rights when she signed her employment contract.

13 576 S.W.3d 881, 902 (Tex. App.—Austin 2019, pet. denied). “The arguably ‘inappropriate or

controversial character of a statement is irrelevant to the question whether it deals with a matter of

public concern.’” Snyder, 562 U.S. at 453 (quoting Rankin v. McPherson, 483 U.S. 378, 387

(1987)).

Here, Clark’s tweets included expressions of concern regarding immigration,

school safety, and public employee effectiveness. The additional content of her tweets while

relevant to the Pickering balance test as discussed below, does not invalidate that her speech

regarded matters of public concern. See id.; see also Myers, 461 U.S. at 149 (conducting Pickering

balancing test where teacher was terminated for disseminating a questionnaire in which one out of

fourteen questions included a matter of public concern).

Thus, we turn to the balancing test. In this context, whether Clark’s speech was

constitutionally protected under the First Amendment involves balancing her interests in

expressing her concerns with the school district’s “interest in performing its services efficiently.”

See Pickering, 391 U.S. at 568 (“The problem in any case is to arrive at a balance between the

interests of the [employee], as a citizen, in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the efficiency of the public services it performs

through its employees.”). In considering the balance, proper considerations include “whether the

statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact

on close working relationships for which personal loyalty and confidence are necessary, or

impedes the performance of the speaker’s duties or interferes with the regular operation of the

enterprise.” Rankin, 483 U.S. at 388. The factor the parties focus on in this case is interference

with the school district’s regular operation.

14 Clark argues that the school district’s interests do not outweigh her interests by

emphasizing that her tweets were made off campus, after work hours, and to a public official; that

her tweets concerned topics of public concern; and that she believed they were private. The school

district argues that the disruption was significant and interfered with the district’s interest in

operating its schools in an environment in which children feel safe.

The Commissioner agreed that both Clark and the school district had significant

interest in this issue:

There is a high First Amendment interest in [Clark’s] communications because they involve a citizen bringing concerns to an elected official who has authority over those claims. The First Amendment of the United States provides the right “to petition the Government for a redress of grievances.”

[The school district] argues that the efficient operation of its schools was harmed and would continue to be harmed due to [Clark’s] communications if [Clark’s] contract was not terminated. [The school district] argues that undocumented families, fearing [Clark] may attempt to have them deported, might not send their children to school. If this were to occur, [the district’s] schools would be failing to achieve the central purpose of schools which is educating children. [The school district] also argues that three email threats were made after [Clark’s] communications became public and that the district received many complaints. [The school district] makes a strong disruption argument.

The Commissioner did not resolve the balancing test, but the school district did,

concluding that its interests outweighed Clark’s. 5 The hearing examiner found that: the district

5 The Fifth Circuit has noted that “Connick did not make ‘altogether clear whether Pickering ‘balancing’ was a question of mixed law and fact, or entirely one of law.’” Brady v. Fort Bend Cnty., 145 F.3d 691, 708 n. 7 (5th Cir. 1998) (quoting Richard Hiers, Public Employees’ Free Speech: An Endangered Species of First Amendment Rights in Supreme Court and Eleventh Circuit Jurisprudence, 5 U. Fla. J.L. & Pub. Pol’y 169, 281 (1993)). In an unpublished opinion the Fifth Circuit held that “[t]he Pickering balancing inquiry is also a question of law.” Davis v. Allen Par. Serv. Dist., 210 Fed. Appx. 404, 408 (5th Cir. 2006) (unpublished) (per curiam)

15 received numerous forms of communication from the public and the media regarding the tweets

and at least two perceived threats, the principal testified that at least one parent wanted to keep her

children home from school because of fear caused by the tweets and public reaction to them, there

was an in-person community response including fourteen individuals speaking out about their

concerns of the effects that Clark’s tweets could have on students at a school board meeting, and

there was widespread publicity of the tweets by local, national, and international media outlets.

Because the Commissioner may not substitute his judgment for that of the board

if the board’s decision is supported by substantial evidence, the dispositive question is whether

the board’s conclusion that the First Amendment does not prevent the termination of Clark’s

contract is supported by substantial evidence. See Tex. Educ Code § 21.303(b); Esparza,

603 S.W.3d at 471.

We agree that Clark has an interest in petitioning elected officials. U.S. Const.

amend. I. However, the school district argues that Clark’s contract was not terminated due to her

expression of her political views or her attempt to petition an elected official, but for the parts

of her tweets that specifically targeted a broad group of school children for identification and

removal from school because either they were “illegal” or “Mexican,” which created fear among

the students, parents, and community.

Clark relies on evidence in the record that supports a finding that the disruption was

minimal and ended on June 4, 2019, a week after the tweets were first reported to the district. The

(citing Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir. 2005) (“[O]ur review of the district court's Pickering balancing analysis is, in the absence of any disputed, material facts, also de novo.”), and Kinney v. Weaver, 367 F.3d 337, 363 (5th Cir.2004) (en banc) (“It is for the court to determine the importance of a plaintiff's speech interest, to determine the importance of a governmental interest in efficient operations, and to balance the relative weight of each.”)).

16 school district admits that the public response did diminish after June 4, 2019, but correctly points

out that this was the day the school board recommended termination of Clark’s contract. 6 The

district argues that the diminished community response coinciding with the district’s

recommendation for termination weighs in favor of its decision to address the disruption caused

by Clark’s tweets by terminating her contract.

Although Clark’s tweets sought assistance from an elected official, the board’s

conclusions that the balance weighed in the district’s favor and that her termination was not

prevented by the First Amendment reasonably relied on the hearing examiner’s findings of fact

that the tweets created community concern regarding the effect on students’ learning, mental

health, and general well-being, and a possible chilling effect that could prevent some children

from attending school, as well as the threats and security concerns created by the public outcry.

Thus, to the extent that the board relied on the tweets to conclude that there was

good cause to terminate Clark’s contract, we conclude that there was substantial evidence to

support the board’s decision that the First Amendment does not prohibit the district from

terminating her contract. The Commissioner would not have been entitled to substitute his

judgment to conclude otherwise. See Tex. Educ Code § 21.303(b); Esparza, 603 S.W.3d at 471.

We overrule Clark’s fourth issue.

6 The record includes emails dated after June 4, 2019, from community members, some expressing anger and others expressing support for the school district’s proposed decision to terminate Clark’s contract.

17 CONCLUSION

For these reasons, we affirm the district court’s final judgment.

__________________________________________ Gisela D. Triana, Justice

Before Justices Baker, Triana, and Theofanis

Affirmed

Filed: January 25, 2023