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WASHINGTON, D.C. – Today, America First Legal (AFL) filed an opening brief in the U.S. Court of Appeals for the Tenth Circuit, appealing the dismissal of its First Amendment lawsuit against Cherry Creek School District (CCSD), on behalf of former Campus Middle School Dean of Students Patrick Hogarty, who was terminated for stating that he is proud to be an American.
AFL’s appeal challenges the district court’s extraordinary decision to dismiss Mr. Hogarty’s constitutional claims with prejudice. By permanently terminating his case at this early stage, the court eliminated Mr. Hogarty’s opportunity for factual development and denied him his day in court before evidence could even be tested or constitutional standards properly applied.
At the center of AFL’s appeal is the court’s misapplication of First Amendment doctrine governing public-employee speech. AFL argues the district court applied the wrong legal framework to Mr. Hogarty’s compelled speech claim, improperly treating constitutionally protected expression as unprotected, job-related speech, and requiring an improper balancing of interests prior to discovery.
AFL argues that even if a balancing of interests were to apply to Hogarty’s speech, those questions cannot be resolved without factual development. Yet, the district court prematurely extinguished the claims, insulating Cherry Creek School District’s conduct from judicial scrutiny. Notably, the court’s decision to dismiss with prejudice precludes Mr. Hogarty from any opportunity to amend his complaint with additional facts to overcome any of the court’s perceived deficiencies.
Mr. Hogarty’s claims arise from a CCSD-mandated “Courageous Conversations” training that explicitly invited employees to “speak your truth” in a confidential breakout session. When Mr. Hogarty expressed pride in being an American and stated his belief that the United States is the greatest country ever founded, district officials labeled his remarks as having “racist undertones.” Within weeks, his position was eliminated under a purported budget reduction, an excuse that was later contradicted by CCSD’s own staffing data.
“This appeal is about far more than one employee; it is about whether courts can shut down First Amendment claims without allowing the facts to come out first,” said Laura Stell, Attorney at America First Legal. “Public employees do not lose their First Amendment rights to their own views as citizens, and public employers may not force their ideological preferences on employees under the guise of ‘job duties.’”
AFL’s appeal builds on its broader exposure of systemic, ideologically based, discriminatory misconduct at the hands of Cherry Creek School District officials. In a civil rights complaint filed with the U.S. Department of Education’s Office for Civil Rights and the U.S. Department of Justice’s Civil Rights Division, AFL documented district-wide race-based decision-making, including labeling student misconduct as “culturally appropriate” based on race, overriding discipline, and retaliating against staff who objected — thereby violating federal civil rights law.
“Cherry Creek School District invited speech, promised openness, and then fired a teacher for stating that he was proud to be an American,” said Ian Prior, Senior Counsel at America First Legal. “If a public employer can lure its staff into speaking and then fire them because it doesn’t hear the answer that matches its ideological agenda — without even facing discovery — then the First Amendment becomes optional. AFL will continue to fight for its client to ensure that does not happen.”
AFL is seeking a reversal of the dismissal and remand to allow Mr. Hogarty’s claims to proceed to discovery.
Read the opening brief here.
Read AFL’s complaint against CCSD here.
Read more about the case here.
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