Advocates or Employees: First Amendment Claims … DOYLE, CALHOUN & ROGERS, LLC 49 ATLANTA STREET, MARIETTA, GA 30060 | GREGORYDOYLEFIRM.COM Advocates or Employees: First Amendment

GREGORY, DOYLE, CALHOUN & ROGERS, LLC 49 ATLANTA STREET, MARIETTA, GA 30060 | GREGORYDOYLEFIRM.COM

Advocates or Employees: First Amendment Claims Brought By Special Education Teachers

By Randall C. Farmer and William P. Miles, of Gregory, Doyle, Calhoun, & Rogers, LLC

A noticeable surge in First Amendment claims brought by individuals serving special education students raises one overarching question: Are the special education teachers advocating for services for their students entitled to First Amendment protection for their speech? An analysis of their claims in three (3) federal circuits reveals that federal courts are treating such claims as being employee speech not protected under the First Amendment. Yet such claims by employees have increased recently.

To understand why, it is necessary to briefly review Garcetti v. Ceballos, which is a landmark decision in the area of public employee First Amendment rights.1

First Amendment Retaliation Claims under Garcetti

In Garcetti, the Supreme Court reversed the Ninth Circuit’s decision in a case involving a First Amendment retaliation claim brought by deputy district attorney, Richard Ceballos. Mr. Ceballos had written a disposition memorandum explaining his concerns regarding alleged inaccuracies in an affidavit used to obtain a search warrant in a pending criminal case. He was subsequently called as a witness by defense counsel and relayed his observations about the affidavit in a hearing on a defense motion. In the aftermath of these events, Mr. Ceballos claimed that he was subjected to a series of retaliatory employment actions. For one, he was transferred to another courthouse and, for another, he was denied a promotion. Mr. Ceballos claimed this was in retaliation for his exercise of his First Amendment rights, and he initiated a claim under 42 U.S.C. §1983.

In Garcetti, Mr. Ceballos undisputedly acted pursuant to his official duties as a deputy district attorney. The Court held that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. The rationale for this decision was as follows:

Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.2

In his dissent, Justice Souter raised the question of whether the Garcetti analysis applied to teachers in public school classrooms.3 In response to Justice Souter’s concerns, the Majority responded as follows:

There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.4

While Justice Souter’s dissent has received significant attention in law review articles, it has not been an issue for the district courts.

First Amendment Speech Analysis

Pursuant to the court’s ruling, in Burns v. Warden, USP Beaumont, to survive summary judgment on their First Amendment retaliation claims, plaintiffs – as public employees – must demonstrate the following three elements: (1) their speech was constitutionally protected; (2) the defendants’ retaliatory conduct adversely affected the protected speech; and (3) there was a causal relationship between the retaliatory action and the adverse effect on speech5.

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According to the court in Aikins v. Fulton County, if plaintiffs can satisfy these elements, the burden shifts to defendants to prove they would have made the same adverse employment decision absent the employee's speech6.

Several circuits engage in a contextual examination of the alleged protected speech paying close attention to the audience of the speech and if the speech was made within the chain of command.

Research Summary

In reviewing the reported cases on Westlaw using the search terms “special education” and “first amendment,” there appears a significant increase in First Amendment cases involving special education services in school districts. The Eleventh Circuit experienced a 500% increase in Westlaw reported cases; the Seventh Circuit saw a 25% increase; and the Ninth Circuit saw a 200% increase. None of the post-Garcetti cases in the Seventh, Ninth or Eleventh Circuits contained any mention or analysis of Justice Souter’s dissent in Garcetti regarding the exception to academic freedom.

11th Circuit 7th Circuit 9th Circuit # of 1st Amendment cases involving special education teachers (2006-2014)

6 cases 5 cases 4 cases

# of 1st Amendment cases involving special education teachers (1997-2005)

1 case 4 cases 2 cases

# of special education cases dismissed (2006-

2014)

5/5 dismissed; 3 cases dismissed on summary judgment; 2 by motion to dismiss

3/5; 3 cases dismissed on a motion for summary judgment; 2 denied summary judgment

# of special education cases dismissed (1997-

2005)

1/1 case 2/4 cases; 2 cases survived a motion to dismiss

3/4 of the cases dismissed at summary judgment. In the fourth case, the judge denied the school district’s motion to dismiss in that case is currently pending. 0/2 Both cases survived summary judgment and 1 resulted in a significant jury verdict.

% increase 300% 25% 200%

Eleventh Circuit: Speech Made in the Workplace and Pursuant to Job Duties Equals Dismissal

Soon after 2006, the Eleventh Circuit Court of Appeals, in D’Angelo v. Sch. Bd., interpreted Garcetti by reviewing the official responsibilities of the public employee and deemphasizing the location of the speech or any particularized review of specific job duties.7 However, the Eleventh Circuit then refined its Garcetti analysis in 2009. In Abdur-Rahman v. Walker, the Eleventh Circuit emphasized that “[t]he controlling factor” in Garcetti was that Ceballos' statements were made pursuant to his job duties.8 While still eschewing any review of a job description, the Circuit Court found that the Supreme Court defined speech made pursuant to an employee's job duties as “speech that owes its existence to a public employee's professional responsibilities” and a product that “the employer itself has commissioned or created.”9

Hence, the Eleventh Circuit cases involving the dismissal of the special education teacher’s First Amendment claim can be broadly classified into those decisions that follow the original Eleventh Circuit articulation of Garcetti as set forth in D’Angelo in 2007 and those occurring after 2009 that follow Abdur-Rahman. As for the D’Angelo approach, the district court, in Miller v. Houston Co. Bd. of Educ., found that a student teacher, who was terminated from an internship program with a school, failed to establish any First Amendment claim because her complaints about non-compliance with Individual Education Plans (“IEPs”) were made pursuant to her official duties.10

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For the Abdur-Rahman approach, the district court in Mattix v. DeKalb Co. Sch. Dist. granted the school district’s motion to dismiss the special education teacher’s complaint, which contained a claim for retaliation under the First Amendment. 11 In Mattix, the special education teacher claimed that she was terminated after she complained about a paraprofessional being reassigned from her classroom, her grades being disregarded, and speaking out about diminished instructional time. The district court granted the motion to dismiss on the basis of Garcetti and Abdur-Rahman, finding that the alleged speech occurred in the workplace and concerned the subject matter of the teacher’s job.12

Seventh Circuit

Of the five (5) cases since Garcetti, three (3) district courts in the Seventh Circuit have granted summary judgment to the school district defendant. In those cases, the district courts twice dismissed the special education employee’s First

Amendment claim. In Koehn v. Tobias the court dismissed the teacher’s claim on the basis that the majority of speech in question was made within the employee’s job duties and not merely because it concerned their job duties.13 However, in Crumpley v. Rich Township High School District II 227 and Diadenko v. Folino, the district court dismissed the claims, even if the employee was not speaking within his or her job duties, for lack of causation.14

The district courts have also denied summary judgment to the defendant school district in two cases. In Dochette v. Lake Tomahawk Joint Sch. Dist., the district court found that the school psychologist’s statement to police was protected by the First Amendment because she was complaining about another special education teacher’s contact with a student, which was not made pursuant to her job duties as a psychologist.15 In Blazquez v. Board of Education of the City of Chicago, the district court denied the motion for summary judgment on the official basis that the special education teacher’s complaint to her supervisors about fraud, waste and abuse were matters of public concern.16

Ninth Circuit

The Ninth Circuit Court of Appeals has adopted a five-step sequential inquiry for determining whether a public employer unlawfully retaliated against an employee under the First Amendment: (1) whether plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.17

As to prong number (2), which relates to the Garcetti analysis, the Ninth Circuit has clarified that “[s]tatements are made in the speaker’s capacity as a citizen if the speaker had no official duty to make the questions statements, or if the speech was not the product of performing the tasks the employee was paid to perform.”18

As to the Ninth Circuit’s application of the Garcetti analysis to special education teacher, the Circuit’s decision in Coomes v. Edmonds School District is enlightening.19 In that case, the plaintiff, a teacher for students with Emotional/BehavioralDisorders, alleged that the school district retaliated against her because she reported concerns about the services her students were receiving to her union representative and to her local and district administrators. In an attempt to avoid the Garcetti analysis, the plaintiff argued that her duties “did not include battling with district representatives over the special education rights of her students.”20 The Ninth Circuit did not accept her argument. Instead, it found that her concerns were simply an expression of her “professional opinions about the appropriate management of a program in which she played a leadership role.”21 Special education teachers were similarly unsuccessful in other cases.22

In another case, a teacher who complained to her state senator that—among many other things—the rights of children with special needs were being violated was able to escape the Garcetti analysis, but she nevertheless lost at summary judgment because the Court found that she had failed to establish that her speech was the substantial or motivating factor for her termination.23

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In the only Westlaw reported post-Garcetti case to survive a dispositive motion from a school district, the district court denied a motion to dismiss on non-Garcetti grounds.24

Conclusion

As discussed above, although more special education teachers are filing First Amendment Retaliation claims, they are not having success because of the significant hurdle that the Garcetti case places upon them. In light of these trends, these teachers may focus their efforts on other causes of action such as claims under the Americans with Disabilities Act or state whistleblower laws where they might be able to avoid the Garcetti-type analysis.

1 Garcetti v. Ceballos, 547 U.S. 410 (2006). 2 Id. at 422-423. 3 Id. at 438-449. 4 Id.at 425. 5 Burns v. Warden, USP Beaumont, 482 F. App’x 414,416-417 (11th Cir. 2012). 6 Akins v. Fulton County, 420 F.3d 1293, 1305 (11th Cir. 2005).

7 D’Angelo v. Sch. Bd., 497 F.3d 1203, 1211 (11th Cir. 2007). 8 Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir. 2009). 9 Id. at 1283. 10 Miller v. Houston Co. Bd. of Educ., No. 1:06-cv-940-MEF., 2008 WL 696874 (M.D. Ala. March 13, 2008). 11 Mattix v. DeKalb Co. Sch. Dist., No. 1:13-CV-2501-RWS, 2014 WL 3579416 *3 (N.D. Ga. July 18, 2014). 12 See also Proper v. Calhoun Co. Sch. Bd., No. 5:10-cv-287-RS-EMT, 2011 WL 3608678 (N.D. Fla. August 12, 2011) (Court determined if speech was made pursuant to official duties). 13 Koehn v. Tobias, No. 3:2012-cv-5032, 2014 WL 4095593 (N.D. Ill. August 19, 2014). 14 Crumpley v. Rich Township High School District II 227, No. 08 C 3467, 2009 WL 2986374 (N.D. Ill. September 15, 2009) (No evidence that school board knew of protected speech when dismissal decision was made); Diadenko v. Folino, 890 F. Supp. 2d 975 (N.D. Ill. 2012) (Summary judgment due to lack of causation).15 Douchette v. Lake Tomahawk Joint Sch. Distr., No. 3:07-cv-00292-bbc, 2008 WL 2412988 (W.D. Wis. June 12, 2008). 16 Blazquez v. Board of Education of the City of Chicago, No. 5-CV-4389, 2007 WL 2410369 (N.D. Ill. August 20. 2007). 17 Eng v. Cooley, 552 F .3d 1062, 1070 (9th Cir. 2009). 18 Id. 19 Coomes v. Edmonds School District, No. 2:12-cv-00319, 2013 WL 3294393 (9th Cir. June 28, 2013). 20 Id. at *1. 21 Id. at 6. 22 See Hodge v. Oakland Unified School District, No. C 09-04719 RS, 2012 WL 1933678 ( N.D. Cal. May 29, 2012) (Granting summary judgment on retaliation claim brought by plaintiff who taught autistic children because her alleged periodic notification of teachers and administrators of deficiencies in the special education program were within her job duties). 23 Capo v. Port Angeles School District, No. 3:07-cv-05685, 2009 WL 413498 (W.D. Wash. February 18, 2009). 24 Houston v. Yoncalla School District, No. 6:13-CV-01318-AA, 2014 WL 3514984 (D. Or. July 11, 2014).