District lawyers warn Eighth Circuit ruling could narrow Pickering protections for schools

Attorneys for the Shakopee School District argued in a packet letter that an Eighth Circuit panel opinion has taken a narrow approach to Pickering that could limit school districts' ability to manage speech by third-party providers and volunteers. "By excluding individuals who work with students, but are paid by entities that, in turn pay school districts from the Pickering analysis, the Eighth Circuit has negatively impacted school districts' ability to respond to inappropriate speech," the letter states, signed by Christian R. Shafer and Adam J. Frudden.

The authors contrast the panel majority with a concurring judge who noted McNeally "provided educational services to the District's students" and that the District gained "significant benefit" from the contractual arrangement — factors the concurring judge said weighed in favor of applying Pickering. The letter cites prior Eighth Circuit and out-of-circuit cases applying Pickering to contractors in settings such as hospitals and law-enforcement instructors and argues those precedents support broader application for school contexts.

The letter frames the panel's reasoning — especially attention to the technical direction of payments — as a problematic, categorical rule that could exclude co-located service providers, community-education instructors, and volunteers who interact with students but are paid by third parties. It urges MSBA intervention and offers the authors' assistance drafting an amicus brief. The transcript includes the full letter text in the meeting packet but does not record board debate or an action taken on the request.