From Judge Mark Goldsmith's opinion in Hernden v. Chippewa Valley Schools(E.D. Mich.); note that the question here is simply where the Board could potentially be held liable as an entity for the Bednard e-mail, not yet whether the e-mail actually violated Hernden's constitutional rights (for more, see the Complaint and the attached e-mails):
Hernden alleges that she is a police officer and the mother of a child who was educated in the Chippewa Valley school system in Clinton Township, Michigan. The Board allegedly implemented policies that limited in-person instruction during the COVID pandemic, and Hernden expressed her opposition to these policies by contacting members of the Board via Zoom, email, and in-person Board meetings.
On December 11, 2020, Defendant Elizabeth Pyden—a member of the Board serving as its secretary—allegedly forwarded a series of emails between Hernden and Pyden to Hernden's "then-supervisor, challenging Plaintiff's conduct as unbecoming of a police officer." Hernden submits that her supervisor then commenced an investigation to determine whether Hernden had violated any departmental rules, though Hernden was not disciplined.
In a subsequent email to the Board, Hernden allegedly "cautioned" the Board against "interrupting her public comments" and suggested that doing so violated the First Amendment. In Hernden's view, this email constituted "an implied threat of legal action against the Board and/or its individual members for perceived violations of Plaintiff's First Amendment rights during public comments at the Board's public meetings."
Hernden alleges that Defendant Frank Bednard—member and president of the Board— then forwarded Hernden's email to the United States Department of Justice (DOJ) with a complaint about her behavior. Bednard also informed the other members of the Board about his communication with the DOJ. The email from Bednard reflects that, on October 5, 2021, Bednard wrote an email addressed to "DOJ" that contained the following assertions, and then shared this communication with the Board members listserv:
