Yesterday we told you about the 10th Circuit decision in favor of an A.D. who wrote a letter to a judge, seeking leniency in the criminal sentence of the A.D.’s nephew who had pled guilty to manufacturing child pornography and other crimes. The court held that the man was exercising his right of free speech when he penned that letter, and thus, he should not have been fired. The school district faces potential liability for wrongful termination.
What about the superintendent? He’s the one who made the decision to recommend the termination of the A.D. The 10th Circuit dismissed the superintendent from the case due to the “qualified immunity” doctrine. Pursuant to that legal doctrine, an individual school administrator is not automatically legally liable for a constitutional violation. The plaintiff has to prove that “the constitutional right at issue was clearly established at the time of the violation.”
Well, it was certainly “clearly established” that school employees have free speech rights. It was clearly established that when a school official speaks out on a “matter of public concern” they enjoy constitutional protection. But that’s not enough. The plaintiff has to show that this general constitutional right was “clearly established” in the particular factual context of the case. This case addressed the issue of whether or not a sentencing decision in a criminal case is a “matter of public concern. The court held:
As described above, we hold that a sentencing decision is a matter of public concern for the purposes of the First Amendment. But this proposition was not clearly established in our circuit at the time [the superintendent] acted.
So the superintendent is immune from liability and dismissed from the case. This seems fair. After all, in this very case the federal judge at the district court level held that the A.D. was not speaking on a matter of public concern. So if it wasn’t “clearly established” to a federal judge, how can it be “clearly established” to a non-lawyer school superintendent?
The case is Bailey v. ISD No. 69 of Canadian County, Oklahoma, decided by the 10th Circuit on July 24, 2018. We found it at 2018 WL 3543064.
DAWG BONE: MOST OF YOU READERS ARE PROTECTED FROM LIABILITY BY QUALIFIED IMMUNITY. YOU SHOULD PUT THIS ON YOUR DAILY GRATITUDE LIST.