5th Circuit affirms firing of principal and assistant.

The firing of a principal and an assistant principal in Northside ISD has now been affirmed by an independent hearing examiner, the Northside ISD school board, a jury in a federal court in San Antonio, and the 5th Circuit Court of Appeals.   This all began with an internal investigation that concluded that the two campus administrators “intentionally authorized inappropriate student testing accommodations based on a misapplication of Section 504 eligibility requirements.”  There are three important lessons we can derive from the Circuit Court’s ruling. 

FIRST AMENDMENT.  First, when public school employees are speaking “pursuant to their official duties, they are not speaking as citizens for 1st Amendment purposes, and their speech is not protected.”  The context was communication by the principal and assistant with T.E.A. about what sort of accommodations are permissible for Section 504 students on the STAAR test.  The court noted that “Plaintiffs’ job duties included implementing Section 504 for students” at their school. So this call to T.E.A. was “pursuant to their official duties” and did not enjoy constitutional protection. 

WHISTLE BLOWING.  Second, if you are claiming that you have been fired for “blowing the whistle” on illegal activity, you are required to “mitigate damages” by seeking other employment.  In this case the plaintiffs did not do that.  They retired and began taking annuity payments from TRS.  The court held that that was not good enough. 

PERSONAL LIABILITY OF ADMINISTRATORS. Third, the court addressed the potential liability of superintendents and other administrators who make recommendations regarding employment of professional educators, but do not make the final decision.   The suit named the superintendent as a defendant. The lower court dismissed the superintendent based on “qualified immunity.”  The 5th Circuit affirmed that ruling.  The court noted that “there is no absolute bar on liability for individuals who are not final decision-makers in a 1st Amendment retaliation claim.”  In other words, it is possible for a superintendent to have personal liability for a constitutional violation, even though the board, not the superintendent, made the final call.  But in this case, the superintendent was entitled to immunity because of the uncertainty of the law on this point at the time he made the recommendation of termination.

A shout out to my law partners, Craig Wood and Katie Payne from our firm’s San Antonio office for excellent lawyering in this case.  It’s rare for termination cases to be heard by a jury.  It’s rarer still for those juries to side with “the government” in a dispute with an individual whose employment has been terminated.  Craig and Katie demonstrated excellent trial skills, and then followed through with advocacy at the 5th Circuit to make sure the lower court’s decision was upheld. 

The case is Powers v. Northside ISD, decided by the 5th Circuit on February 26, 2020.  It’s at 2020 WL 913314. 


Tomorrow: 5th Circuit decision in favor of Highland Park ISD.