Yesterday we told you about disability discrimination claims arising from the termination of a counselor in Lockhart ISD.  The same counselor also alleged that the firing was an act of retaliation for her exercise of First Amendment rights to free speech.  Of course school employees have First Amendment protection, but only when they are speaking as a “citizen” on “matters of public concern.”  If they are expressing themselves solely about their own employment situation, they do not have that constitutional protection.

In this case, the counselor cited three communications that she thought would qualify as “free speech.” The first was a letter to some of her colleagues. The letter stated that she was having “tremendous difficulties” working with the principal and was scheduled to have a meeting with the assistant superintendent.  The context for this was that the counselor had already been reprimanded and given various directives by the principal. She was likely apprehensive about the meeting with the assistant superintendent. The letter asked her colleagues to provide good evaluations for her if asked.

Sure enough, in the subsequent meeting the assistant superintendent advised the counselor that he would recommend her termination.  This led to communication number two—an email to her colleagues about the upcoming board meeting at which her termination would be discussed.  She outlined allegations of “unspeakable acts” committed against her, and sought the support of her co-workers.

The third communication was not from the counselor, but rather, a letter from some of the faculty members who urged the board not to terminate the counselor’s employment.

Free speech? Is this speaking as a “citizen” on “matters of public concern”? Of course these communications implicitly expressed the view that Bluebonnet Elementary School was not well managed.  Is this not a matter of general public concern to all citizens? That was the argument, but the court did not buy it. Looking at “the content, form, and context” of the communications, the court concluded that this was primarily aimed at the counselor’s personal employment dispute.  Key Quote: “the Court does not agree with Plaintiff that it is enough that her communications impliedly concerned ‘[the principal’s] ability to effectively run Bluebonnet Elementary.”

That took care of the First Amendment issue. The court granted a summary judgment in favor of the district. The case of Eubank v. Lockhart ISD was decided by the federal court for the Western District of Texas on January 17, 2017.

DAWG BONE: SPEAKING OUT ABOUT YOUR OWN DISPUTE WITH YOUR BOSS MIGHT NOT QUALIFY AS “FREE SPEECH.”

File this one under: LABOR AND EMPLOYMENT and FIRST AMENDMENT

Tomorrow: There is NO ESCAPING special education!