by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–148. Speech which can be “fairly considered as relating to any matter of political, social, or other concern to the community” touches upon matters of public concern. Id. “While motive for the speech is a relevant factor, … the pertinent question is not why the employee spoke, but what he said,” meaning that a court must “examine the point of the speech in question[.]” Myers, 41 F.4th at 760.
The point of the flyer was to call out Dr. Donadio as a racist and to identify TPUSA (rightly or wrongly) as a racist organization. Certainly, identifying and addressing racism on college campuses is a matter of public concern. See Connick, 461 U.S. at 148 at n.8 (noting that the “right to protest racial discrimination” is “inherently of public concern”); Hardy v. Jefferson Cmty. Coll., 260 F.3d 671, 679 (6th Cir. 2001) (observing that “race, gender, and power conflicts in our society” are “matters of overwhelming public concern”); McLin v. Bd. of Police Comm’rs, 10 F. App’x 388, 389 (8th Cir. 2001) (“Assuming it is not related entirely to a private dispute between the plaintiff and defendant, racism in a public agency is inherently a matter of public concern.”).
Whether Plaintiffs’ allegations about Dr. Donadio and TPUSA are true or not the Court does not know and, at this point in the analysis, is irrelevant. See v. City of Elyria, 502 F.3d 484, 493 (6th Cir. 2007). What is relevant is that the speech “touched upon” a matter of public concern, even if the motive for the speech was mixed.
“‘If any part of an employee’s speech, which contributes to the [disciplinary action], relates to a matter of public concern, the court must conduct a balancing of interests test as set forth in Pickering[.]’” See Bonell v. Lorenzo, 241 F.3d 800, 812 (6th Cir. 2001) (quoting Rahn v. Drake Ctr., Inc., 31 F.3d 407, 412 (6th Cir. 1994)). Plaintiffs’ disagreement with Dr. Donadio and the group
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Case 2:21-cv-00039 Document 90 Filed 12/01/22 Page 16 of 27 PageID #: 8928
