A recent decision from the 10^th Circuit confirms the notion that free speech rights shrink as one moves up the administrative ladder.  In Rock v. Levinski the court affirmed the termination of a principal who was fired because of the way she publicly criticized a decision made by the school administration.

Joyce Rock was principal of Career Prep High School, an alternative school in Shiprock, New Mexico.  In May, 2013, the superintendent decided to close the school due to budget concerns.  At a public meeting to discuss this, Ms. Rock opposed the plan.  Among other things, she expressed concerns that some of the students at Career Prep would not be successful in a more traditional, and larger school.

The superintendent did not appreciate this.  He charged her with being unprofessional. The superintendent held the belief that campus administrators should show support for administrative decisions, and should certainly not question the ability of kids to be successful in the school to which they will be assigned.

Ms. Rock was not the only speaker who opposed the planned school closure during the public meeting.  Others spoke out as well.  The school board took the concerns to heart.  The very next day, the board announced that it had found additional funds, and would keep the school open.

This must have been a relief to Ms. Rock, but what happened next was not.  Four days later her immediate supervisor put her on a growth plan, citing her failure to publicly support the superintendent as one reason.

It got worse.  Two weeks later the superintendent put Ms. Rock on administrative leave for the remainder of her contract, and decided that she would not be given another contract.

A couple of weeks after that the New Mexico Association of Secondary School Principals named Ms. Rock as its Principal of the Year.  This, no doubt, was a nice honor, but she was now out of a job and not happy about it. Ms. Rock filed suit against the superintendent and the district, claiming that they had retaliated against her for the exercise of First Amendment rights of free speech.

The court ruled in favor of the school district and the superintendent.  Critical to the court’s reasoning was the fact that Ms. Rock was a high ranking school official:

Rock was not an ordinary employee of the District. She was not a teacher, but a principal, a high-ranking member of the management team.

The court cited a U.S. Supreme Court decision for the proposition that “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.”  Rankin v. McPherson, 483 U.S. 378 at 390 (1987).  In other words, the higher up you go, the more cautious you should be.

In support of its decision, the court cited two other Circuit Court decisions that specifically dealt with principals, and came to the same conclusion: Sharp v. Lindsey, 285 F.3d 479 (6^th Cir. 2002) and Vargas-Harrison v. Racine Unified School District, 272 F.3d 964 (7^th Cir. 2001).  Summing it up the court said:

A superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies.

The case is Rock v. Levinski, decided by the 10^th Circuit on June 29, 2015.  It is cited at 791 F.3d 1215.

DAWG BONE: THE HIGHER YOU GO, THE MORE CAUTIOUS YOU SHOULD BE BEFORE YOU SPEAK IN PUBLIC.

This guy’s been leaving work early on Fridays for years. Now all of a sudden it’s not OK. What’s that about?

Let’s say you have a teacher’s aide who is a Muslim.  When you hire him, he asks if it would be OK for him to be dismissed early on Fridays, as he usually leads the prayer service at the mosque on Friday afternoons.  You don’t anticipate any problems with this, so you agree to it.  A few years go by with this arrangement in place, and no complaints, no problems.  Then you find an interesting video on YouTube. The video shows your employee giving a lecture at the mosque.  In the lecture, he identifies himself as an employee at your campus, and then criticizes the school for exposing Muslim students (of which there are many) to the polytheistic belief system of Greek mythology.  Hmmm.

A few months later you revoke permission for your teacher’s aide to leave work early on Friday afternoons.   The teacher’s aide disregards this, and continues to leave early. So you fire him.

Do you think this would create a legal problem for you?

It would.  It did in Columbus, Ohio.

The employee, Abdurahman Haji filed suit, claiming that he suffered retaliation as a result of his exercise of First Amendment rights.  The 6^th Circuit Court of Appeals ruled in favor of the school district on this one, but it was a closer call than you might expect.  The reason for the ruling in favor of the school district was because there was an intervening factor—something that happened after the principal saw the video, and before he revoked the prior permission. What happened was that the teacher who supervised Mr. Haji complained (for the first time) that his absence on Fridays had become disruptive.

The fact that the principal revoked the prior permission just a few months after seeing the video was problematic for the principal. The courts refer to this as “temporal proximity,” and view it as a factor that a reasonable jury could rely on to determine that the employee is being punished for engaging in “protected activity.” After all, there was no question that the lecture the man gave, and the subsequent publication of it on YouTube, was constitutionally protected free speech.  There was no question that revocation of a privilege he had enjoyed for several years was “adverse action.” So to win his case, Mr. Haji only had to prove that there was a cause and effect connection between the two. The “temporal proximity” of the two events helped his cause.  If he could prove that the revocation of his privilege was an act of retaliation, then the order that he stay at school on Fridays would be invalid. Thus the case turned on the issue of the revocation of his prior permission to leave early. Was this because of the YouTube video?

The court noted that it would rule for the school if the school could “present evidence of sufficient non-retaliatory reason to rescind the agreement” to allow the man to leave early.  The school did exactly that:

Ellingwood, Haji’s direct supervisor, complained in Spring 2008 to Principal Lewis about Haji’s absences for the first time.  She told Lewis that Haji’s early Friday absences caused substantial disruptions to her classroom.   Haji does not dispute that Ellingwood complained about him.  It is a sufficient, non-retaliatory reason to rescind permission for an employee to engage in otherwise permissible conduct in response to a direct supervisor’s complaint that the conduct directly interfered with the employee’s job duties.  Ellingwood’s complaint therefore demonstrates that Lewis’s rescission of the agreement was not retaliation for Haji’s YouTube video.

We suppose there are a few lessons to be drawn from this case.  First, rescission of a privilege can be viewed as “adverse action” even if you did not have to grant the privilege in the first place.  Second, the timing of events is important.  If the “adverse action” took place five years after the “protected activity” it would lack that “temporal proximity.” Third, documentation, as usual, plays a crucial role in litigation.  We wonder if the teacher’s complaint was really the first time the teacher ever complained about Mr. Haji’s absence on Fridays.  Maybe she groused about it in the teacher’s lounge. Maybe she badmouthed her aide during the Friday afternoon teacher Happy Hours.  We don’t know. All we know is that the court was convinced that when she complained to the principal about it, this was the first time she had done so.  That’s when Mr. Haji’s absences on Fridays went from “OK” to “not OK.”  That was the crucial piece of evidence that supported the “non-retaliatory” reason for Mr. Haji’s termination.

The case is Haji v. Columbus City Schools, decided by the 6^th Circuit Court of Appeals on July 16, 2015.

DAWG BONE: RESCINDING PERMISSION FOR SOMETHING MIGHT BE MORE LEGALLY PROBLEMATIC THAN YOU THINK.