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Vermont district agrees to pay almost $150,000 to settle parent’s First Amendment suit

Vermont Today reports that Addison Rutland Supervisory Union (ARSU) has agreed to pay $147,500 in order to settle a suit brought by the American Civil Liberties Union of Vermont (ACLU-VT) on behalf of a parent that claimed that his First Amendment speech rights had been violated when he was banned from school district property and was, thus effectively, prevented from communicating with school board members at board meetings. In September of 2014, a federal district court ruled that ARSU violated Marcel Cyr’s right to free speech when officials barred him from attending board meetings or entering schools in the school district. 

Cyr was served no-trespass orders in September 2011 and in March 2012 after school officials said they feared for their safety because of Cyr’s physical size, loud voice and the sometimes harsh comments he made about the education his son was receiving at Benson Village School. Cyr and his family moved out of Benson in 2012. Gilbert said the case served as a powerful message to school districts that parents and members of the public can’t be lightly denied access to open meetings. Gilbert said, “Basic rights were taken away. Schools need really good reasons to serve no trespass orders. This case is a win for everyone who cares for education, democracy and how public policy is done.”

After months of court-ordered mediation dealing with damages following the court’s ruling, ACLU-VT and ARSU reached a deal that ACLU executive director Allen Gilbert said was probably the best Cyr could hope for. “You have to think about what a jury might award in these cases,” Gilbert said. “Civil rights cases are hard because they can be very expensive to bring, and even if you prevail, the award might not be much.” According to Gilbert, the family will receive about $40,000 of the award, with the remainder going to pay for court fees and legal expenses.

ARSU Superintendent Ron Ryan said that he would rather lose a lawsuit than risk the safety of teachers, school staff members, students and parents. “We’re always looking at safety first,” Ryan said. “That’s what’s so difficult here. From a superintendent’s standpoint, I’ll always look at safety first whether I’ve lost a case or not.” However, Ryan remarked that moving forward, the school district would look at taking the court’s advice of utilizing alternatives to barring Cyr, which would include paying a police officer to stand guard at School Board meetings. “From this point forward, I guess if we suspect someone is being unruly, we’ll hire a law-enforcement officer to stand guard,” Ryan said. “It could be expensive, but that’s what we have to do.”

Source: Vermont Today, 1/6/15, By Brent Curtis

[Editor’s Note: In September 2014, the federal district court in Vermont  in Cyr v. ARSU granted Cyr summary judgment on his First Amendment freedom of expression claim and his Fourteenth Amendment due process claim. However, it denied his motion for summary judgment on his First Amendment right to access claim and, instead, granted summary judgment to ARSU on that claim. The court concluded that the school district was could be held liable under § 1983 basis on the theory of municipal liability established in Monell v. Department of Social Services, 436 U.S. 658 (1978). 

The district court determined, as a matter of law, that the parent could not succeed on the right to access claim because there is no tradition in the United States of  municipal government meetings being open to the public. However, it came to the opposite conclusion in regard to the parent’s freedom of expression claim. After determining that school board meetings are designated open fora, the court concluded that by barring the parent from school district property, the school district effectively negated his ability to communicate with board members, which violated his First Amendment speech rights. It also found the school district had violated the parent’s due process rights by depriving him of his First Amendment right to express his views at school board meetings without adequate process.  

Finally, it concluded that the school district was liable for the violations of the parent’s freedom of expression and due process rights based on the theory of municipal liability because the superintendent was acting as final policymaker for the school district when he issued the notice of trespass barring the parent from school district property.

In November 2012, Legal Clips summarized an article in the Rutland Herald reporting that Rutland civil court judge William Cohen had dismissed a lawsuit by a Vermont school district against a parent who criticized school administrators and filed a request for documents about why he was barred from school grounds.

ACLU-VT, on behalf of  Cyr, sued ARSU, claiming that by labeling Cyr as dangerous and barring him from all school functions, the school district had allegedly violated his constitutional rights under the First Amendment and his right for due process as guaranteed by the Fourteenth Amendment.

In his ruling, Judge Cohen said that allowing the Rutland Addison Supervisory Union to proceed with its case against Cyr would “undermine the legislative scheme” of the state’s Public Records Act.]




Tennessee district hit with race discrimination suit by white security officers terminated for using excessive force on African American student

Courthouse News Service reports that two former security officers, who are white, have filed a federal suit against Memphis City Schools and Shelby County Schools boards of education claiming they were terminated from their positions based on race. Richard Pinner and Henry Todd were employed as security officers at Northwest Prep Academy at the time of the incident that led to their firing.

Their suit claims that it was necessary to use force on a female African American student who was violent and out of control. The suit states:

Officer Pinner attempted to place handcuffs on the student. The student jerked her arm with only one handcuff on the wrist. The student swung her arm with the partially loose handcuff attached. Officer Pinner became concerned for his own safety and others from the loose swinging handcuff. He used accepted law enforcement procedures to take the violent and dangerous student to the ground to complete handcuffing.

They allege that after the incident Chamella Branch, the school’s principal who is African American, threatened Pinner and Todd. According to the suit, she said, “I’m tired of you white officers beating up on my black babies. I’m going to have you fired.”

The security officers were immediately suspended and then fired for using excessive force. They say their race was the real reason for their termination.

“Plaintiffs are members of a protected class consisting of members of the white race,” the complaint states. “The adverse employment actions taken by Memphis City Schools terminating plaintiffs were done so because plaintiffs are white; members of the black race would not have been terminated under the same circumstances.”

The suit alleges that African American officers accused of excessive force are counseled rather than fired on their first offense, but that plaintiffs were not afforded that due process. It adds, “Termination in this case was based entirely upon the racial animosity expressed by Ms. Branch whose relative, upon information and belief, is the chief executive of labor relations.”

Source: Courthouse News Service, 1/6/15, By Kevin Lessmiller

[Editor’s Note: In August 2014, Legal Clips summarized an article in The Washington Post reporting that Jon Everhart, a former teacher who is white, had won a $350,000 jury award in his reverse discrimination suit against the Prince George’s County Board of Education (PGCBOE). Everhart’s suit claimed he was forced out of his job by an African American principal. According to Everhart, he was subjected to years of racial harassment at Largo High School (LHS) by Principal Angelique Simpson-Marcus. Simpson-Marcus declined to comment on the reason for Everhart’s termination, but said the complaints of ill treatment and retaliation were “unfounded.”]


Sua Sponte: In conjunction with ED/DOJ’s joint guidance on state and school districts’ obligations under federal law regarding English language learner (ELL) students, ED/DOJ provide toolkit for identifying ELL students and will be providing additional toolkits with regard to this guidance

The press release announcing the U.S. Department of Education (ED) and Department of Justice’s (DOJ) joint guidance on the obligations of states and districts under federal law regarding English language learner (ELL) students provides a link to a toolkit for school districts to use to identify potential English learners. The toolkit, “Identifying Potential English Learners,” emphasizes that school districts must identify ELL students in need of language assistance services in a timely manner.

The toolkit points out that many state departments of education require a state developed home language survey (HLS ) or provide a sample for school districts  to use and suggests that districts check with their state departments about HLS guidance. The toolkit provides a checklist  to assist with developing HLS instruments and procedures. However, it warns that the ” checklist provides suggestions only, and that schools and [school districts] should check their [state department of education’s] policies to ensure compliance with state requirements.”

ED has advised that it will be providing several additional toolkits to be used in conjunction with this new guidance.

Sua Sponte: ED/DOJ issue joint guidance regarding states’ and school districts’ obligations under federal law regarding English language learner students

The U.S. Department of Education’s (ED) Office for Civil Rights (OCR) and the Department of Justice (DOJ) have issued guidance in the form of a “Dear Colleague Letter” (DCL) regarding the obligations that states, school districts and schools have under federal law to “ensure that English language learner (ELL) students have equal access to a high-quality education and the opportunity to achieve their full academic potential.” 

According to the accompanying press release, the guidance explains schools’ obligations to:

  • identify English learner students in a timely, valid and reliable manner;
  • offer all English learner students an educationally sound language assistance program;
  • provide qualified staff and sufficient resources for instructing English learner students;
  • ensure English learner students have equitable access to school programs and activities;
  • avoid unnecessary segregation of English learner students from other students;
  • monitor students’ progress in learning English and doing grade-level classwork;
  • remedy any academic deficits English learner students incurred while in a language assistance program;
  • move students out of language assistance programs when they are proficient in English and monitor those students to ensure they were not prematurely removed;
  • evaluate the effectiveness of English learner programs; and
  • provide limited English proficient parents with information about school programs, services, and activities in a language they understand.


California district’s lawsuit claims local municipality’s breach of contract in failing to provide police officer resulted in school shooting

According to Courthouse News Service, Taft Union High School District (TUHSD) is suing the City of Taft claiming that the city’s breach of contract led to the shotgun wounding of two people at Taft Union High School (TUHS). The suit, filed in Kern County Superior Court, alleges that the city failed to send a police officer to TUHS during school hours to prevent truancy, among other things, as agreed upon in the contract executed by the parties.

TUHSD charges that the city failed to send an officer on the day that truant student, Bryan Oliver, went onto campus and shot fellow student Bowe Cleveland. TUHSD claims that the shooting would not have happened had the city made sure a police officer was on campus that morning, in accordance with its contract. “Under the contract, a police officer was to be assigned for at least 40 hours per week to Taft Union High School, and one was assigned to be there at the time of the shooting. This gave rise to a duty to have a police officer at the high school,” the legal complaint states.

Cleveland sued the school district in April 2013, claiming that it knew Oliver was dangerous because he had made a hit list the previous year with nearly 30 names on it, including Cleveland’s, and because several students had previously reported being threatened by Oliver. TUHSD contends that the shooting would not have happened had the city made sure a police officer was on campus that morning, in accordance with its contract.

Though the contract contained a “mutual indemnity clause,” the city refuses to indemnify the school district, forcing it to incur the costs of hiring an attorney and defending itself in court, the complaint alleges. TUHSD is seeking damages for breach of contract, contractual indemnity, equitable indemnity and contribution. It also wants a declaration that the city must indemnify the school district in Cleveland’s lawsuit and contribute to the costs of defense.

Source: Courthouse News Service, 1/5/15, By Rebekah Kearn

[Editor’s Note: In July 2014, Legal Clips summarized a decision by an Indiana Court of Appeals three-judge panel in Metropolitan Sch. Dist. of  Martinsville v. Jackson holding that a school district was not entitled to immunity from a negligence suit for an on-campus student-on-student shooting.] 

NSBA Council of School Attorneys Webinar January 14, 2015 – Students with Allergies and Infectious Diseases – 504 Plans, Individual Health Care Plans, Emergency Action Plans, and Federal Guidance

Allergies are becoming more prevalent among children, leaving school districts responsible for determining how best to address issues involving students with allergies. This webinar provides information all school attorneys should know about accommodating students with allergies – including how to determine whether a student needs a Section 504 Plan, an Individual Health Care Plan, an Emergency Action Plan, or some combination thereof.  Register now for this webinar.

  • Time: 1:00 p.m. – 2:15 p.m. (EST)
  • Host: Sonja Trainor, Director, Council of School Attorneys
  • Presenter: Jennifer Deutch and Lori Martin, Partners, Hodges, Loizzi, Eisenhammer, Rodick, & Kohn LLP, Arlington Heights, IL


Florida court tosses teachers union’s suit challenging law expanding state’s voucher program

NorthEscambia.com reports that Leon County Chief Circuit Judge Charles Francis dismissed “with prejudice,” a lawsuit filed by the Florida Education Association (FEA) seeking to reverse a 2014 law that packed together an expansion of eligibility for the voucher program with several other education measures. In September 2014, the judge ruled that the named plaintiff lacked legal standing to bring suit, but gave FEA the opportunity to amend the suit’s language to show that the plaintiff had standing.

However, Judge Francis concluded that the amended complaint also failed to pass legal muster. “In order to sustain standing, the plaintiffs are required to allege sufficient facts to support a finding of special injury,” Francis stated. “As currently pled, the Amended Complaint for Declaratory Judgment also fails to allege a legally sufficient basis to sustain a finding of special injury and the court is of the opinion that further amendments to the complaint will not result in a legally sufficient complaint.”

The judge rejected  the claims by the named plaintiff, and two parents who joined the new lawsuit, that the expansion of the Tax Credit Scholarship Program hurt them because it could lead to reduced funding for their schools. The program provides tax credits to companies that donate money to nonprofit entities that pay for children to go to private schools.

Instead, Francis sided with the state, which argued that to fall under the constitutional provision, a lawsuit had to challenge a bill based on a constitutional limit on how the Legislature spends money. He said the plaintiff couldn’t sue just because the law he was challenging had an impact on the budget.

This latest ruling does not affect a separate suit challenging the constitutionality of the voucher program.

Source: NorthEscambia.com, 12/31/14, By Staff

[Editor’s Note: “With prejudice” is a legal term of art that means that the suit is dismissed and the plaintiff is further barred from re-filing or amending the suit. Judge Francis filed a brief two page order dismissing the claim. 

In September 2014, Legal Clips summarized an article in the Miami Herald reporting on Judge Francis’ dismissal of FEA’s suit, challenging recently enacted legislation expanding the state voucher program and creating new scholarships for children with disabilities. The suit claimed that the law violates a state constitutional requirement that each law be limited to a single subject. Judge Francis held that the teacher named as the plaintiff did not have legal standing to bring the lawsuit. The judge found that the teacher would have had to have demonstrated that he had been harmed by the voucher expansion law.]


ACLU files federal complaint against Virginia school district on behalf of transgender student because the district has limited bathroom facilities available to the student

According to the Daily Press, the American Civil Liberties Union of Virginia (ACLU-VA) has filed a complaint against Gloucester County Public Schools (GCPS) with the U.S. Departments of Education (ED) and Justice (DOJ) on behalf of Gavin Grimm, a female to male transgender student at Gloucester High School. The complaint alleges that GCPS is discriminating against Grimm on the basis of sex because it has adopted a policy limiting the facilities available to transgender students.

The policy states that transgender students can only use single-stall bathrooms or facilities assigned to their biological gender. At the beginning of the 2014-15 school year, Grimm was allowed to use a single-stall restroom at the nurse’s station and some of the staff restrooms. He received permission to use the boys’ restrooms in October, after telling the principal that the earlier arrangement made him feel alienated and isolated.

The ACLU-VA claims that there were no complaints about Grimm’s use of the boys’ restrooms  prior to the Gloucester County School Board’s adoption of the new policy. According to the complaint, Grimm has been isolated and outcast by the new policy. “The real potential for such harassment is reflected in some of the public comments at the School Board meeting labeling Gavin as a ‘girl’ and a ‘freak,'” the complaint stated.

ACLU-VA legal director Rebecca Greenberg said courts have repeatedly ruled that discriminating against people on the basis of gender identity is sex discrimination. “Consigning transgender students to segregated bathrooms prevents them from participating in school activities on an equal basis and causes exclusion and isolation,” she added.

The complaint alleges that transgender bathroom policies violate Title IX, which states that students can’t be excluded from school programs or activities on the basis of sex. The ACLU-VA acknowledges that schools are allowed to protect students’ privacy, but insists they cannot do so by singling out transgender students for different treatment.

The board’s new policy won praise from a group founded by leaders of the Campus Crusade for Christ and Focus on the Family.

Source: Daily Press, 12/19/14, By Dave Ress

[Editor’s Note: The ACLU-VA’s administrative complaint with ED/DOJ asserts that GCPS’ “’biological gender’ policy on its face and as applied to [Grimm] discriminates against [him] on the basis of his sex in violation of Title IX.”

The complaint also cites the ED/DOJ resolution agreement with a California district over discrimination against a transgender student, which was reported in a previous issue of Legal Clips. In August 2013, Legal Clips published a Sua Sponte item reporting that Arcadia Unified School District (AUSD) had entered into a resolution agreement with the U.S. Department of Education, Office for Civil Rights and the U.S. Department of Justice, Civil Rights Division which ended the federal agencies’ investigation into allegations of discrimination against a transgender student. Under the resolution agreement, AUSD agreed to continue accommodations it began providing the student over a year before the agreement was executed.

In addition, the ACLU-VA cited a Colorado administrative decision upholding a transgender student’s right to use the girls’ restroom. In June 2013, Legal Clips summarized an article in The New York Times reporting that Colorado’s civil rights division had found that a school district discriminated against a transgender elementary student when it refused to let her use the girl’s bathroom. The division concluded that the Fountain-Fort Carson School District needlessly created a situation in which the student, Coy Mathis, would have been subjected to harassment when it barred her from the girls’ bathroom even though she clearly identified as female.] 


Sua Sponte: Legal Clips on hiatus December 24, 2014 through January 4, 2015

Legal Clips will be on hiatus from Wednesday, December 24, 2014, through Sunday, January 4, 2015. We will return on Monday, January 5, 2015, with fresh news and case summaries to brighten the new year. In the meantime, we wish all of our readers happy holidays and a litigation free new year.




Third Circuit rules that school district officials were not entitled to qualified immunity from former employee’s First Amendment retaliation suit based on his whistle blowing activities

Dougherty v. School Dist. Of Philadelphia, No. 13-3836 (3d Cir. Nov. 21, 2014)

Abstract: A U.S. Court of Appeals for the Third Circuit three-judge panel has ruled that school district officials were not entitled to qualified immunity from a First Amendment retaliation suit brought by a former school district employee. Affirming the federal court’s decision, it held that the  former employee had raised a valid claim in alleging that his free speech rights had been violated and that the asserted constitutional right was clearly established at the time the alleged violation had occurred.

The panel concluded that the former employee had not spoken “pursuant to official duties” when he reported the superintendent’s alleged misconduct to the newspaper. It rejected the defendants’ attempt to replace the Garcetti “pursuant to official duties” test with one that precludes First Amendment protection for speech that “owes its existence to a public employee’s professional responsibilities.” It also found that the balancing test laid out Pickering v. Board of Education, 391 U.S. 563 (1968), favored the employee’s interests over the employer’s. Finally, the panel determined that the right asserted by the former employee was clearly established.

Facts/Issues: Francis X. Dougherty was employed as the Deputy Chief Business Officer for Operations and the Acting Chief of Operations for the Office of the Deputy Superintendent within the School District of Philadelphia (PSD).  He reported to the Deputy Superintendent who reported to the Superintendent. After PSD Superintendent Arlene Ackerman ordered the installation of cameras at all schools designated “persistently dangerous,” Dougherty was tasked with leading the procurement process, which was to be completed within 30 to 60 days. Because of the short time frame, the usual competitive bidding process could not be utilized.

As a result of the short timeline and pursuant to state guidelines and school district policy, Dougherty’s team was required to select a pre-qualified contractor, i.e., a contractor with an existing contract with the School District or another state agency that was obtained through a competitive bid. The team identified Security and Data Technologies, Inc. (“SDT”) as one such contractor. A proposal was then forwarded to Ackerman for approval.

Ackerman allegedly rejected the SDT proposal for lack of minority participation and directed that IBS Communications, Inc. (“IBS”), a minority owned firm, be awarded the prime contract instead. IBS was not a pre-qualified contractor and was therefore ineligible for no-bid contracts. However, Dr. Ackerman submitted IBS’s implementation plan to the School Reform Commission for review. The SRC ratified the plan at its voting meeting. Ackerman subsequently transferred responsibility for managing the camera project to PSD’s procurement director, whose department did not ordinarily handle this type of project.

In approximately November of 2010, IBS lodged a complaint. Dougherty was not included in a camera project personnel meeting called by Deputy Superintendent Dr. Leroy Nunery to discuss the complaint. Nunery criticized the staff and blamed Dougherty for obstructing IBS’s work. An upset Dougherty sent Nunery an email rejecting his allegations and requesting a meeting  to discuss the issue. Following Nunney’s accusations, Dougherty met with reporters from The Philadelphia Inquirer concerning Ackerman’s alleged wrongdoing in connection with the IBS contract.

The Philadelphia Inquirer published an article headlined, “Ackerman Steered Work, Sources Say.” It was the first of several articles accusing Ackerman of steering the contract to IBS in violation of state guidelines and School District policies and procedures. Dougherty also submitted a report to the FBI Tips and Public Leads website, contacted several state representatives, and submitted a hotline report to the Office of Inspector General for the U.S. Department of Education.

The day after The Philadelphia Inquirer article was published, Dougherty was called to a meeting with Ackerman and Nunery. Dr. Ackerman vowed to get to the bottom of who leaked the information and stated she could fire Dougherty over this information getting to the press. Ackerman decided a full-blown investigation was needed, and placed Dougherty and five others on administrative leave pending the outcome of the investigation. At that point, Dougherty informed PSD’s human resources executive that he was the source of the leak and had gone to federal law enforcement agencies.

Several days later, Ackerman hired Michael Schwartz of Pepper Hamilton LLP to conduct the investigation. There is a significant factual dispute as to the nature of the investigation. Dougherty contends that Ackerman specifically instructed Schwartz to find the source of the leak. Schwartz maintains, however, that the scope of the investigation was limited to discovering “[a]ll of the facts surrounding the decision to award these contracts . . . [and] whether anyone at the School District had violated School District policies or Pennsylvania or federal [laws].” The relevant confidentiality provision of PSD’s Code of Ethics provides: “A School District employee shall not disclose confidential information concerning property, personnel matters, or affairs of the [School] District or its employees, without proper authorization . . . . Nothing in this provision shall be interpreted as prohibiting the practice of ‘whistle-blowing.’”

In March of 2011, Pepper Hamilton issued its report, which concluded that there was no evidence of unlawful motive in the award of the IBS contract. Pepper Hamilton did find, however, that Dougherty violated the Code of Ethics by emailing information about the SDT proposal to an unknown email address, which the district determined was a personal email address belonging to Dougherty. The investigation also revealed that Dougherty emailed large volumes of confidential information related to the camera project to his personal email address, which was not a violation of the Code of Ethics, per se.

The report also stated that Dougherty had breached the confidentiality section of the district’s code of ethics, by forwarding e-mails to his personal e-mail address and to the unknown e-mail address, and that his refusal to cooperate with the investigation after he had been suspended and retained a lawyer prevented PSD from reaching any other conclusion. Dougherty was terminated shortly after the report was issued. Dougherty filed suit in federal district court against PSD, Ackerman, Nunery, and other district officials. The suit alleged that  he was terminated in retaliation for his disclosure of Dr. Ackerman’s alleged misconduct to The Philadelphia Inquirer and law enforcement agencies, in violation of the First Amendment under 42 U.S.C. § 1983 and Pennsylvania’s Whistleblower Law.

The school district officials filed a joint motion for summary judgment and asserted the defense of qualified immunity as to Dougherty’s First Amendment retaliation claim. The district court explained that Dougherty’s allegations were sufficient to establish a First Amendment retaliation claim. First, it found no evidence “suggesting [Dougherty’s speech] fell within the scope of his duties to recognize the alleged misconduct as such and report it,” and, therefore, concluded that Dougherty spoke as a citizen under Garcetti v. Ceballos, 547 U.S. 410 (2006). Second, it found no evidence “compel[ling] a conclusion that Dougherty and [defendants] had such close working relationships that his reports to the press would undermine their ability to work together,” tipping the balancing test established in Pickering v. Board of Education, 391 U.S. 563 (1968).

The court found that defendants’ motivation for firing Dougherty was a disputed issue of material fact, and concluded that Dougherty made a sufficient showing of improper motivation to put the issue before a jury. Turning to whether the right was clearly established, the district court found that a reasonable governmental official would have been on notice that retaliating against Dougherty’s speech was unlawful. Thus, it concluded that defendants were not entitled to qualified immunity.

Ruling/Rationale: The Third Circuit panel affirmed the lower court’s decision denying the school district defendants qualified immunity from Dougherty’s First Amendment retaliation claim. It stated that in order for Dougherty to defeat the claim of qualified immunity, pursuant to the U.S. Supreme Court’s holding in Saucier v. Katz, 533 U.S. 194, 201 (2001), he must show: (1) the defendants’ conduct “violated a constitutional right;” and (2) that right was “clearly established” at the time of the challenged conduct. Because the claim asserted by Dougherty was a First Amendment retaliation one, it looked to the three-part test that requires a public employee to show:  “(1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred.”

However, the panel focused solely on part one of the test, as the second and third elements presented questions of fact and were not being contested in the appeal. It stated that the central question was whether the facts as determined by the district court established that Dougherty’s speech was entitled to First Amendment protection. It indicated that under Pickering v. Board of Education, 391 U.S. 563 (1968), “[s]o long as [public] employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”

The panel, therefore, employed a three-part analysis to determine if Dougherty’s speech was protected, beginning with the test established in  Garcetti v. Ceballos, 547 U.S. 410 (2006), and reiterated by the Supreme Court in Lane v. Franks, 134 S. Ct. 2369 (2014). As to the second part, which requires that the speech involve a matter of public concern, it found that the question was undisputed. Finally, the third part requires proof that the government lacks an “adequate justification” for treating the employee differently than the general public based on its needs as an employer under the Pickering balancing test.

Addressing the Garcetti inquiry of whether Dougherty spoke pursuant to his official duties, the panel explained that the Supreme Court “declined to advance a framework for defining when an employee speaks pursuant to his official duties, explaining that ‘[t]he proper inquiry is a practical one.’” It stressed that whether an employee’s speech is made within the context of job duties “is a mixed question of fact and law.” Applying Garcetti  test to the facts, the panel agreed with the lower court that Dougherty did not speak “pursuant to his official duties” when he disclosed details of Ackerman’s alleged misconduct in awarding the prime contract to IBS.” It concluded that “nothing about Dougherty’s position compelled or called for him to provide or report this information” to any source either within the school district or outside of the district.

As a result, the panel found: “Dougherty’s report to The Philadelphia Inquirer, therefore, was made as a citizen for First Amendment purposes and should not be foreclosed from constitutional protection.” It rejected the defendants attempt to replace Garcetti’s “pursuant to official duties test with one that precludes First Amendment protection for speech that “owes its existence to a public employee’s professional responsibilities.” It emphasized that “whether an employee’s speech “concern[s] the subject matter of [his] employment” is ‘nondispositive’ under Garcetti.” The panel pointed out that the Supreme Court recently reiterated in Lane that “speech by public employees ‘holds special value precisely because those employees gain knowledge of matters of public concern through their employment.’” It concluded that “Lane reinforces Garcetti’s holding that a public employee may speak as a citizen even if his speech involves the subject matter of his employment.”

The panel found that if anything “Lane may broaden Garcetti’s holding by including ‘ordinary’ as a modifier to the scope of an employee’s job duties.” However, it left the question unanswered as it was not before the court in the appeal. It stated: Under Lane, our determination stands that Dougherty’s report to The Philadelphia Inquirer was not made pursuant to his official job duties. Dougherty’s claim is not foreclosed merely because the subject matter of the speech concerns or relates to those duties.”

The panel next took up the Pickering balancing test  under which Dougherty’s speech is protected only if the “test tilts in his favor.” It agreed with the lower court’s assessment that “any disruption to the School District was outweighed by the substantial public interest in exposing government misconduct, tipping the Pickering balancing test in Dougherty’s favor.” Like the district court, it found that any workplace disruption was not the result of Dougherty’s whistle blowing activities, but of PSD officials’ attempt to suppress his speech. The panel concluded that “ … while the parties do not dispute that there was some actual disruption to the School District, we also keep in mind that it would be absurd to hold that the First Amendment generally authorizes corrupt officials to punish subordinates who blow the whistle simply because the speech somewhat disrupted the office.”

Turning to the second prong of the qualified immunity analysis, which requires courts to determine whether that right was “clearly established,” the panel concluded “that the illegality of the [defendants’] actions was sufficiently clear in the situation they confronted.” It stated: “Given the citizenlike nature of Dougherty’s disclosure to The Philadelphia Inquirer, the lack of close working relationships with either Dr. Ackerman or Dr. Nunery, and the disputed issue of fact with regard to the cause of the disruption, it is sufficiently clear that Dougherty’s speech was protected under the First Amendment.”

Dougherty v. School Dist. Of Philadelphia, No. 13-3836 (3d Cir. Nov. 21, 2014)

[Editor’s Note: In February 2013, Legal Clips summarized a decision by a A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in McArdle v. Peoria Sch. Dist. 150 holding that school district officials in Illinois did not retaliate against a former middle school principal for exercising her First Amendment free speech rights by reporting her predecessor’s misuse of district funds. The panel concluded that the former principal had not spoken as a private citizen, but as a public employee, and, therefore, her speech was not constitutionally protected from discipline by her employer.]

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