Employment Law Daily Teacher’s concerns about special education were unprotected speech
Friday, March 25, 2016

Teacher’s concerns about special education were unprotected speech

By Lorene D. Park, J.D. When a public school teacher voiced concerns about the school’s special education program to supervisors, those were “up-the-chain-of-command” complaints; and her speech to parents was part of her job as head of the school’s special education program. As such, she could not show her speech was made as a private citizen and summary judgment was affirmed on her First Amendment claim. However, the Ninth Circuit remanded her state-law wrongful discharge claim because Washington’s high court overruled the analysis on which summary judgment was based and the district court should decide whether to continue exercising supplemental jurisdiction (Coomes v. Edmonds School District No. 15, March 23, 2016, O’Scannlain, D.). Teacher expresses concerns. The employee was the manager of a middle school’s new “Emotional/Behavioral Disorders” (EBD) program and the primary teacher for EBD students. At first, she got along with the administration and received good reviews, but things soured after she disagreed with the assistant principal and the principal over the “mainstreaming” of her students. She believed some of her students were ready for mainstreaming classes but were being denied access for impermissible financial reasons. In March 2010, she sent an email to her union rep and to an HR manager expressing these concerns. She also forwarded the email to a group of other middle school teachers and the email chain worked its way to the school principal. Principal reacts. The principal sent the email chain to school district administrators, stating that it contained false accusations and hoped the district would “take a very strong position in stopping this behavior.” A few weeks later, the principal emailed the HR manager and the assistant superintendent to express her disagreement with a proposal to reassign the employee to another school—she believed reassignment would publicly validate the employee’s complaints. Program changes. During the next school year, the EBD program changed significantly and EBD students were placed in more mainstream classes as a “concerted effort to move the EBD program from a self-contained model to a more inclusive . . . model.” The employee objected at first, sending an email to the assistant principal to express that new sixth-grade EBD students should be in the EBD class full time so she could get to know their needs in a new school setting. Employee transferred. As the employee continued to express concerns about changes to the EBD program, her evaluations became more negative. The principal and assistant principal wrote a number of letters criticizing her performance. After she complained to the superintendent, she was transferred to a high school for the 2011-2012 year. However, before that school year started, she collapsed in the school’s halls, “falling to the floor and sobbing uncontrollably.” She was granted medical leave through December 31, 2011. But on the advice of her therapist, decided not to return to work. On September 9, her attorney sent the district a letter stating it was “impossible” for her to return and she had been constructively discharged. Employee wasn’t speaking as “private citizen.” Affirming summary judgment against the employee’s First Amendment retaliation claim, the Ninth Circuit found that she spoke not as a private citizen, but as a public employee when expressing concerns about the EBD program. It noted that the “First Amendment does not protect speech by public employees that is made pursuant to their employment responsibilities—no matter how much a matter of public concern it might be.” Also, the Supreme Court emphasized in Lane v. Franks that the critical question was whether the speech was itself “ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” In prior Ninth Circuit cases, the court has explained that whether or not an employee confined her communications to her chain of command was a relevant, if not dispositive factor in deciding whether she spoke pursuant to her official duties. Job descriptions may also shed light as to the scope of an employee’s duties. Here, the employee described her speech as relating to two topics—the “illegal and improper treatment of vulnerable students in the public school system” and “bullying and harassment” by administrators “in retaliation for taking a stand.” Her speech was transmitted to district personnel and parents. Speech within scope of duties. In the appellate court’s view, the employee’s speech to district personnel was part of her job. Her job description showed that she was responsible for managing the EBD program and her expressed concerns were sent up her chain of command. This speech was therefore not protected by the First Amendment. As to her speech to parents, which was clearly outside her chain of command, the appeals court again concluded that communicating with parents on students’ progress in the EBD program was “part and parcel” of her job. Indeed, the employee’s own declaration repeatedly emphasized that her duties included collaborating with parents and encouraging their involvement. Furthermore, the employee pointed to no evidence indicating that her conversations with parents went beyond discussing individual students and the district’s EBD program. Thus, her speech to parents was also within the scope of her duties and not protected by the First Amendment. Wrongful discharge claim remanded. Remanding the employee’s claim under Washington law for wrongful discharge against public policy, the Ninth Circuit explained that, after oral argument on appeal, the Washington Supreme Court expressly discarded the analysis on which the federal district court’s analysis was based. Accordingly, the district court should consider whether to continue to exercise its supplemental jurisdiction.

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