First amendment protection for teacher?
Was a teacher protected by the First Amendment when expressing concerns about a special education program?
The Ninth Circuit Court of Appeals recently decided whether a public school employee was protected by the First Amendment when she voiced concerns about the school’s special education program to her supervisors and her students’ parents. In Coomes v. Edmonds Sch. Dist. No. 15 (9th Cir. Mar. 23, 2016, No. 13-35747) 2016 U.S. App. LEXIS 5372, the issue was whether Ms. Coomes spoke as an employee (unprotected) or a private citizen (protected).
Ms. Coomes worked at a middle school as the manager and primary teacher of an Emotional/Behavioral Disorders program. Ms. Coomes complained to her union representative, a human resources manager, and other teachers about treatment by administrators. She expressed concerns that her students who were ready to move to mainstream classes were not moved or had moves delayed based on improper financial considerations. The complaint reached the Principal, who forwarded it to school district administrators. The Principal claimed that Ms. Coomes’s complaint contained false allegations and asked administrators to stop the behavior.
Ms. Coomes also objected to changes in the program consisting of placing students in more mainstream academic classes than in past years. Meanwhile, her evaluations began to worsen and the Principal and Assistant Principal criticized her performance.
After collapsing to the floor and sobbing uncontrollably, Ms. Coomes went out on medical leave. On the advice of a therapist she decided not to return to work. After she was separated by the district, Ms. Coomes sued the District for, among other claims, retaliation in violation of her First Amendment rights. The trial court dismissed her case.
On appeal, Ms. Coomes contended that her First Amendment rights were violated because of her views about the treatment of students in the program. The Ninth Circuit began with a review of First Amendment retaliation law, which provides that public sector employees are protected when they speak as private citizens about matters of public concern. (Garcetti v. Ceballos (2006) 547 U.S. 410.) The appellate court focused on the private citizen versus employee question.
The U.S. Supreme Court established that the answer depends on whether the speech is ordinarily within the scope of the employee’s duties, not whether it merely concerns those duties. (Lane v. Franks (2014) 134 S. Ct. 2369.) The District introduced evidence consisting of Ms. Coomes’s job description and the emails that comprised her complaints. Ms. Coomes presented only one piece of evidence—her job description—to establish the scope of her job duties. Consequently, there was no factual dispute about Ms. Coomes’s job duties.
The Ninth Circuit turned next to analyzing Ms. Coomes’s complaints to two different audiences—District personnel and parents. For the complaints to District personnel, the appellate court reviewed the general rule that concerns raised up the chain of command generally are not protected by the First Amendment. It applied that rule to Ms. Coomes’s speech, and found that her complaints about management of the program fell within her job duties.
As for the complaints to parents, Ms. Coomes emphasized that her job responsibilities included collaborating with parents and encouraging parent involvement in the program. Also, her complaints about placement of students included her belief that communicating with parents regarding placement choices was part of her job. Accordingly, the Ninth Circuit concluded that Ms. Coomes’s complaints to parents were part of her job duties because they involved her disagreement with the District over its handling of her program.
Based on the foregoing, the Ninth Circuit affirmed the dismissal of Ms. Coomes’s First Amendment retaliation claim. Ms. Coomes worked in Washington state. If she had worked in California and her dismissal took place after 2013 she could have avoided dismissal of her case owing to California’s whistle-blower statute (Labor Code section 1102.5), which protects speech that is part of the employee’s job duties.