The farm was maintained as an homage to American history, or at least what was considered American history before it was reinvented to show that it was the history of awfulness. Still, students from the Claremont School District went there on field trips. Until they didn’t. David French explains why.

Though it was lost in the national news cycle, Central District of California Judge Jesus Bernal — an Obama appointee — issued a ruling that directly challenged government boycotts and reprisals against allegedly intolerant business owners. The case is called Riley’s American Heritage Farms v. Claremont Unified School District, and the facts are similar enough to  government actions against Chick-fil-A that the franchise’s lawyers should take notice.  The farm is a “living history farm,” and it frequently hosts school field trips. At the farm “immersive presentations focused on the American Revolution, Civil War, American colonial farm life, California Gold Rush, and pioneering homesteading history.” The presentations strive to be historically accurate and contain no political or cultural commentary. The farm maintains a social media presence, and its social media accounts are also politics-free.

Whether Riley’s farm is a testament to the American experience or our colonialism and original sin, it was there for students to see. But one of the farm’s owners, James Riley, also had some thoughts of his own.

For example, he once posted, “I have just realized we may have been the last generation born with only two genders.” He also compared Senator Kirsten Gillibrand to an ice sculpture and “juxtaposed Black Lives Matter members and ISIS.” 

These words were spied by parents of students, who naturally were offended and brought their outrage to the school district’s doorstep. Parents complained to principals, and principals prohibited teachers from subjecting their students to this farm of living history owned by this man of horrible opinions. When Riley complained to the district, he got told good and hard.

The District’s letter referenced Riley’s social media commentary and asserted that “[n]othing in the First Amendment obligates the District to continue doing business with any individual or organization that makes public statements which are inimical to the District’s educational mission . . . The District has . . . no obligation to expose children to an individual who engaged in these crude and tasteless comments.” The letter further insinuates the action was necessary to “secure and protect” students from“discrimination and harassment” and to avoid “expos[ing] them to inappropriate sexist or racist attitudes” or “sexually explicit, indecent or lewd speech.”

Riley sued the district and Judge Bernal held that while it’s correct that the First Amendment does not compel a school district to do business with Riley, what it does is prohibit a school district from ceasing doing business in retaliation for his exercise of free speech.

Terminating this benefit is a matter of discretion reserved to the District and its agents; however, Defendants’ cannot terminate the benefit for unconstitutional, retaliatory reasons. Because Plaintiffs plausibly allege the cancelled field trips and prohibition of field trips were in retaliation for Riley’s online political commentary, Plaintiffs state a claim for First Amendment retaliation.

Conceptually, this is reminiscent of the law as to at-will termination of employment, that an employer can fire someone for any reason or no reason, except for an unlawful reason. Had the district decided that sending students to a living history farm was no longer in their educational interests, it could have ended its field trips without giving rise to a plausible cause of action.

But that wasn’t the issue. Their complaint was that allowing students to go to the farm “expose[d] them to inappropriate sexist or racist attitudes.” No one can be exposed to an “attitude,” but to words and deeds. 

Can a school district be constrained to tolerate words that the parents of its students find offensive? Riley wasn’t haranguing students or parents with his political views during their field trips, but expressed his views on social media. It was public, but does doing business with a public entity require a forfeiture of First Amendment rights, or suffer the consequences?

Had Riley put up a big sign at the gate to the farm with the same words, it might present a different problem, as that would at least have subjected the students to a message the district did not deem consistent with its mission. But if so, would that not also be retaliatory?

Judge Bernal rejected application of the Supreme Court’s Pickering balancing test.

In 1996, the Supreme Court extended the First Amendment protection afforded to government employees to independent contractors. The Court held that the Pickering balancing test could be adjusted to weigh the government’s interests as contractor rather than as employer to determine the extent of protection. The Court noted unconstitutional conditions precedent exist on a spectrum ranging from government employees, who have the closest relationship with the government, to private citizens with less close relationships with the government and whose viewpoints on matters of public concern the government has no legitimate interest in repressing. Independent contractors lie somewhere between these poles.

Riley’s farm provided no government services, but was analogized to a contractual provider of goods and services rather than an independent contractor to the district. In other words, Riley was providing access to a historic farm, and whatever he had to say had nothing to do with what he was selling. It didn’t reflect an endorsement from the district of his views, and parents’ offense at his politics was none of the district’s business.

Judge Bernal recognized, but rejected under the facts of this case, that had Riley tried to infuse the farm with his politics, it could raise fair pedagogical concerns that were best left to the school district.

They assert they were “well within their discretion to determine that a politically charged environment such as that was not appropriate for elementary school students.” (Id.) But even considering Exhibit A, there is not enough before the Court to conclude as a matter of law that Defendants’ pedagogical concerns justify the alleged retaliatory conduct. Exhibit A does not describe the Farm as a politically charged place, as the article focuses on Riley’s personal Twitter handle. The only discussion of the Farm itself is a quote of Riley’s statement on the Farm’s website explaining his tweets reflected his personal convictions with no effect on the Farm or the content of the living history programs. (Ex. A.) There is no indication of any change to the pedagogical experience at the Farm.

The problem, of course, is once the parents learned of Riley’s personal views on social media, the absence of connection to the farm was then theoretical, as the connection was created as a result of their outrage where it didn’t exist in the first place. But as with the child who killed his parents, it’s disingenuous to throw oneself on the mercy of the court because one’s an orphan. Riley gets to say whatever he pleases, because his First Amendment rights remain intact, and the district doesn’t get to retaliate against him because parents connected attenuated dots and created an untenable issue for the district.