School Principal Loses Free-Speech Appeal Over LGBTQ+ Advocacy

A Minnesota middle school principal spoke as a public employee when she used employer funds to purchase a Pride flag and otherwise promoted LGBTQ+ inclusivity at her school, the Eighth Circuit ruled Tuesday.

That conclusion was fatal to her First Amendment retaliation claims over her reassignment as a special projects coordinator and one-week unpaid suspension after an investigation found her advocacy created a divided and negative work environment for other staff, a unanimous panel said.

Public employees can’t prove free-speech retaliation when the speech at issue was made pursuant to their official duties, the US Court of Appeals for the Eighth Circuit said. The panel’s decision also turned on Mary Kay Thomas’ lack of proof that her advocacy drove Marshall Public Schools and school district decision-makers to reassign and suspend her.

In what capacity someone spoke—as a public worker or as a private citizen—and whether they can show their speech was a factor in adverse job action are issues that frequently determine the outcome in government-employee First Amendment lawsuits.

In addition to her use of school funds, evidence supporting the school’s argument that Thomas wasn’t speaking as a private citizen included her directing custodial staff to arrange the Pride flag and approximately 29 others that were part of her inclusion-project display. Thomas also confiscated a student petition aimed at removing the Pride flag, distributed Pride ally stickers for staff to display, and declined “requests to install flags of differing viewpoints,” Judge Ralph R. Erickson said.

Those activities distinguished her case from Kennedy v. Bremerton School District, which involved a football coach saying a brief, private prayer at mid-field on his own personal time after games, the Eighth Circuit said.

Thomas argued that her communications seeking to build a coalition of community support as events were unfolding were also protected private speech. But she didn’t show the individuals involved in deciding to remove her as principal relied on those communications “or the advocacy campaign itself,” Erickson said.

Evidence of the uncomfortable work environment for staff who opposed Thomas’ advocacy or were concerned about discussing LGBTQ+ issues with middle schoolers undercut her ability to prove her speech was a factor in the defendants’ adverse actions, the judge said. There was no showing that the decision-makers acted for any reason other than staff morale and hostile-work-environment concerns, he said.

Because Thomas failed with her First Amendment claims, a lower court didn’t abuse its discretion when it declined to continue handling her claims under the Minnesota Human Rights Act, the Eighth Circuit said.

Judges James B. Loken and Jonathan A. Kobes joined the opinion.

Apollo Law LLC, Premo Frank PLLC, and Nichols Kaster PLLP represented Thomas. Ratwik, Roszak & Maloney represented the defendants.

The case is Thomas v. Marshall Pub. Sch., 2025 BL 302050, 8th Cir., No. 24-03176, 8/26/25.