Dear Dawg: Snort, here. Rip Snort. Intrepid Reporter. Friend of the Truth and STAUNCH DEFENDER OF THE FIRST AMENDMENT IN THIS TIME OF DARKNESS!!
Dawg, I am delighted to inform you of the victory of the teacher in Fort Worth who was fired for exercising her First Amendment rights! Ms. Clark sent several tweets to You Know Who, the Tweeter in Chief, seeking more vigorous enforcement of our immigration laws. For this she was terminated. There could hardly be a more blatant example of a school district retaliating against a teacher for the exercise of constitutionally protected rights. Now, however, Commissioner Morath has restored the First Amendment to its rightful place of honor, reversing the decision of the Fort Worth ISD school board.
Thomas Jefferson would be proud. SNORT.
DEAR FRIEND OF THE TRUTH:
Thanks for the heads up, Snort. But the Dawg wonders if you actually read the Commissioner’s decision, or only the reports of it in the media. The Commissioner did not make a ruling one way or the other on the constitutional issue. Instead, he reversed the board’s ruling because of the way the board handled the recommendation from the hearing examiner.
The Commissioner outlined the very interesting issue presented by the facts. You have a teacher on her own time, using her own resources, communicating with an elected official on a matter of public concern. That’s protected free speech. You have a school district with legitimate concerns about the blowback and disruption those communications, which were publicly available on Twitter, would generate in a school district with a large Hispanic population. Courts apply a balancing test in cases like that. Commissioner Morath describes it this way:
What needs to be weighed is the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees.
Having teased us by laying out that very interesting issue, the Commissioner scooted right past it like a running back avoiding a tackle:
However, instead of blazing a new trail in constitutional law by examining this novel question, this case will be resolved based on other issues. (Emphasis added).
That’s a great disappointment to you and other members of the Chattering Class, but that’s the truth, Friend of the Truth.
The Commissioner then examined how the board handled the recommendation of the independent hearing examiner. His recommendation included 52 Conclusions of Law, leading to the ultimate recommendation that her actions were protected by the Constitution and she should not be fired for this.
The board rejected that recommendation and fired the teacher. In doing so, the board rejected 32 of those 52 Conclusions of Law. It did not adopt any new ones. What was left, according to the Commissioner, failed to establish any good cause to terminate a continuing contract:
A school district wanting to adopt changes to a Conclusion of Law or to adopt a new Conclusion of Law must provide a reason and legal basis for any change. In the present case, Respondent rejected in whole or in part many Conclusions of Law, but it adopted no completely new or partially new Conclusions of Law. This is significant because there is no Conclusion of Law in Respondent’s Decision that finds there is good cause to terminate Petitioner’s contract and there are no Conclusions of Law which are determinations regarding good cause that support the ultimate conclusion that good cause exists to terminate Petitioner’s contract.
Was the teacher’s communication entitled to protection under the First Amendment? It remains an open question, Snort. We don’t know. Commissioner Morath does not express an opinion.
This case is Clark v. Fort Worth ISD, decided by the Commissioner on November 25, 2019. It’s Docket No. 006-R2-10-2019.
DAWG BONE: BOARDS HAVE TO BE CAREFUL WHEN REJECTING AN INDEPENDENT HEARING EXAMINER’S RECOMMENDATION.
Tomorrow: Toolbox Tuesday!!