By William Hornbeck, ACLR Featured Blogger


           When a prisoner violates prison rules, a guard can give him or her a citation depriving the prisoner of some of his or her privileges (e.g., TV viewing time). Unsurprisingly, many prisoners who have sued their guards for various constitutional violations find that they now receive more citations than their less litigious fellow prisoners. But when prisoners challenge their citations in court, courts in some circuits ask only whether the citation was justified by the prisoner’s misconduct (the so-called “checkmate rule”). Other circuits go beyond the justifications for the citation and look at whether the citations were retaliatory. This blog post argues that the former approach (the checkmate rule) is inconsistent with the First Amendment and with the Supreme Court’s jurisprudence on First Amendment retaliation.

            The leading case on First Amendment-proscribed retaliation is Mount Healthy City Board of Education v. Doyle.[i] Doyle, an untenured teacher at a public school in Ohio, was involved in several incidents: arguing with another teacher (who then slapped him); arguing with cafeteria workers for not giving him enough spaghetti; calling students “sons of bitches” in a disciplinary complaint; and making an obscene gesture[ii] to several students who refused to obey his orders as cafeteria supervisor. When the principal circulated a memo changing the teacher dress code to present a more professional public image, Doyle sent the memo to his friend, a local disc jockey, who reported about the memo on his radio show. When Doyle came up for tenure, the school board declined to renew his contract, thus making him ineligible for tenure. When Doyle asked the district to state their reasons for not renewing his contract, the district told Doyle that he had shown a lack of tact, both in reporting the dress code to the radio and in making the obscene gesture at the students.

Doyle sued the school board, alleging that the board had unlawfully retaliated against him for exercising his First Amendment right to discuss the dress code, a matter of public importance. The district court agreed with Doyle, finding that the call to the radio station was constitutionally protected conduct and that the call was a “substantial factor” in Doyle’s dismissal. The Sixth Circuit affirmed in a brief per curiam opinion.

            The Supreme Court, in a unanimous opinion by Justice Rehnquist, vacated the lower court opinions and remanded the case to the district court. According to the Supreme Court, finding that Doyle’s constitutionally protected speech was a “substantial” or “motivating” factor in his dismissal was only the first step in a First Amendment retaliation analysis. After Doyle showed that the speech was a substantial factor in his dismissal, the burden flipped to the school district to show by a preponderance of the evidence that Doyle would have been dismissed (or in this case, not given tenure) even if he had never spoken on the dress code or made the “obscene” gesture. Because the district court had not conducted this inquiry, the Supreme Court left this question for the court to determine on remand.[iii]

            Since Mount Healthy, some circuits have developed an alternative way to avoid reaching the merits of a prisoner’s First Amendment retaliation claim: the checkmate rule. As explained by the Eighth Circuit, when a prisoner claims to have been given misconduct citations in retaliation for making constitutionally-protected speech, a disciplinary conviction based on “some evidence of the violation . . . essentially checkmates [a] retaliation claim.”[iv] For example, if a prisoner is cited for wearing a weave cap,[v] a court will not inquire into the guard’s motivation for citing the prisoner if there is some evidence that shows that the prisoner did wear a weave cap. The Third,[vi] Sixth,[vii] and Eleventh[viii] Circuits have adopted the Eighth Circuit’s checkmate rule. The Second,[ix] Fifth,[x] and Ninth[xi] Circuits expressly reject the checkmate rule, conducting a full Mount Healthy inquiry for prisoner retaliation claims. The Seventh Circuit has adopted a similar rule to the checkmate rule,[xii] and the First[xiii] and Tenth[xiv] Circuits have obliquely criticized the reasoning of the checkmate rule.

            While courts are understandably frustrated with having so many prisoner suits on their dockets, the checkmate rule is an inappropriate way to resolve these cases. In Mount Healthy, the school district could have refused to rehire Doyle for plenty of reasons not forbidden by the First Amendment, but that alone did not prove that its decision was not retaliation for Doyle exercising his First Amendment rights. First Amendment retaliation applies equally to prisoners and teachers alike: whatever limits courts might put on prisoners’ underlying First Amendment rights,[xv] allowing retaliation will give guards an additional weapon to use against prisoners to curtail what remaining rights prisoners have. If a guard cites a prisoner for wearing a weave cap, the correct question to ask under Mount Healthy is not whether the prisoner did or did not wear a weave cap but instead whether the guard would have issued the citation even if the prisoner had not exercised his First Amendment rights (in another context). In most cases, little inquiry will be required to determine that the citation would have been issued even if the prisoner had not made protected First Amendment speech. But because the prison environment creates a situation where guards have the power and the incentive to retaliate against prisoners for exercising their First Amendment rights, it is necessary for courts to at least ask the correct questions.

            The Supreme Court passed on an opportunity to rule on the validity of the checkmate rule in the current term. When a prisoner whose retaliation claim was “checkmated” filed a pro se petition for certiorari in February, the Supreme Court surprisingly requested a response from the State of Michigan, but then denied the petition on the first day of the term.[xvi] Even though the Court did not grant certiorari in this case, the decision to request a response to the petition suggests that at least one justice recognizes the circuit conflict over the checkmate rule and that the Court might soon decide whether the checkmate rule is justified under Mount Healthy or the First Amendment. When they do, I hope that they will reaffirm the applicability of the Mount Healthy inquiry to the prisoner retaliation context, rather than set a lower First Amendment protection standard for those in our society most vulnerable to retaliation.