Damages

damages

DAMAGES *

Update:  In a decision from a district court in Texas, the judge provided an updated summary of decisions establishing binding precedent for establishing liability and  deliberate indifference within the Fifth Circuit.  Excerpts from that decision summarizing relevant cases as of December, 2016, are posted at the end of this page.

While reimbursement for services and/or compensatory education when the school has not provided their children with a free appropriate public education (FAPE) and attorney fees are available to parents under the IDEA Part B, damages and punitive damages are not available under that statute.  (Courts have held attorney fees are not available under Part C.)

Neither damages nor punitive damages are available under FERPA or the PPRA, either.

However, spedlaw is never quite what it seems, and that fact should give no comfort to school administrators or teachers.  Attorneys are quite creative when it comes to representing their clients, and while successful lawsuits for damages remain rare, that does not mean they are non existent.   The reason, of course, is that the IDEA is not the only statute protecting disabled children and children in the general education program.   Not all the cases cited below are “good law,” either.

Let’s begin with Doe v. Withers.   It is only being cited here because it continues to be available on other websites.  Whereas there are some precedents that should cause genuine alarm. Doe v. Withers is not one of them.   Decided in 1993, it involved a teacher, who also served in the state legislature of West Virginia, who thought that the modifications written into the child’s IEP were inappropriate for the student.   As a result, the student failed, and as a result of that, lost the privilege of playing on school teams.   The parents, incensed, sued.   Actual damages awarded (under Section 1983 of the Civil Rights Act) were five thousand dollars, and punitive damages of $10,000.  Virtually every court since then has ruled that punitive damages are not available under the IDEA.  Most courts have ruled that damages are also unavailable, despite one case that awarded nominal damages to some parents because they were not provided their rights as required by law.  (Salley v. Tamnnay Parish, 5th Circuit, 1995  Salley v. Tammany Parish, 5th Circuit, 1995 (Link)

 Doe v Withers 1993

It was commonly believed before 2001 that damages were not available under the ADA/504, although there had been a split in the circuit courts.   The issue was partially settled in 2002, in a case not involving educational institutions, when the Supreme Court ruled in Barnes v. Gorman that while  damages were available under Title VI and the ADA, punitive damages were not available.  

Barnes v. Gorman 2001

And it was all but settled in 2005 when the Supreme Court ruled in Rancho Palos Verde, wherein they ruled that if a statute provided a means for relief different from Section 1983 of the Civil Rights Act, then the relief available under Section 1983 was precluded.

RANCHO PALOS VERDES V. ABRAMS

Of course, just having a case did not mean that parents could sue for damages without exhausting administrative remedies first.   That principle is still applicable today . . . the IDEA requires that schools make administrative remedies available to parents.   Where the parents might have had a case for damages, the courts have sometimes rejected their claim because they had not accessed administrative remedies first.  This has happened additionally in cases where the parents alleged a 504 claim but the court has concluded the relief they were seeking would have been available under the IDEA.    (Parents may also lose their right of appeal when they exercise their right under the 2008 IDEA amendment to terminate special educational services for their child.)  

Polera v. Newburgh 2002

More recently, in 2010, the Ninth Circuit heard a school case, Mark H. v. Hamamoto, wherein the parents were seeking damages under Section 504.   The Ninth reiterated the principle above with respect to punitive damages, but held that schools could be held liable for actual damages for injury resulting from “deliberate indifference.”.   

The actual outcome in that case was less important than the principles applied by the Ninth Circuit:

Plaintiffs may prevail in a § 504 claim for damages, we held, by establishing that an organization that receives federal funds violated § 504 “intentionally or with deliberate indifference.” Id. at 938. Plaintiffs may establish that an organization violated § 504 by showing that the public entity discriminated against, excluded, or denied the benefits of a public program to a qualified person with a disability. Id. at 937. This includes showing that the public entity denied the plaintiff a reasonable accommodation. Id. A violation of one of the regulations implementing § 504 may support a claim for damages if the violation denied the plaintiff meaningful access to a public benefit, and the defendant organization acted with deliberate indifference. Id. at 938-39. Having so clarified the legal standards, we remanded with the direction that the H. Family be given the opportunity to amend their complaint. Id. at 939.

In other words, if a plaintiff can prove school administrators deliberately denied a child a right guaranteed under the ADA/Section 504 and was indifferent to the possible negative outcomes of that denied, that school system could be sued for damages.  While the courts have generally found that a school official cannot be held individually accountable for acts of deliberate indifference, there has been a split in the courts regarding an official’s potential liability under Section 504 for acts of retaliation against a parent.

Mark H v Hamamoto 9th Circuit 2010

For better or worse (depending on from what perspective you are reading this essay), spedlaw is not the only source of concern when it comes to lawsuits.

Title VI prohibits discrimination based on gender, and the Supreme Court ruled that Section 1983 of the Civil Rights Act may be invoked when alleging sexual discrimination.  

Fitzgerald v Barnstable 2009

 

The circuit courts have been split with respect to damages available under Section 1983 of the Civil Rights Act when based on IDEA claims (one reason why it is important to know which circuit holds sway in your jurisdiction.)  According to LRP, the 1st, 3rd, 4th, 9th, and 10th Circuit Courts have held that litigants may NOT use Section 1983 in an IDEA case.  The 2nd and 7th Circuits have held the opposite view.  The 6th Circuit has held 1983 claims may be brought in some instances, while the 8th has issued conflicting views in 1988 and 1996.  (Heidemann v. Rother, 8th Circuit and Digre v. Roseville, 1988 )

If you are unsure as to within which Circuit Court your school system falls, the following map may prove helpful:

Circuit Courts Map

A Sample Deliberate Indifference Case *

Excerpts from Plainscapital v. Keller Unified School District, November 29 2016 North District Court, Texas regarding liability and deliberate indifference standards. Most citations removed for clarity. *

In 1998, the United States Supreme Court, in Gesber v. Lago Vista Indep. Sch. Dist., held that recovery of damages from a school district under Title IX for a teacher’s discriminatory harassment4 of a student requires proof that (1) a school-district employee with supervisory power over the offending teacher (2) had actual notice of the discrimination and (3) responded with deliberate indifference. . . . A year later, in Davis v. Monroe Cty. Bd. of Educ., also a Title IX case, the Supreme Court held that school districts may also be liable for failing to address a student’s sexual harassment of another student only where the district is deliberately indifferent to known acts of harassment. . . In 2014, the Fifth Circuit extended the deliberate indifference standard to cases under § 504 and the ADA involving an allegation of a student’s disability-based harassment of another student.  In doing so, the court explained that the Supreme Court’s reasoning in Davis applies equally to harassment on the basis of personal characteristics enumerated in Title VI, Title IX, § 504, and other relevant federal antidiscrimination statutes. . . Although the case before this Court is neither a Title IX case nor one involving peer harassment, the Court finds instructive the Lance court’s application of Davis–-a Title IX case–to determine a school district’s liability for disability-based harassment under § 504 and the ADA.

“””

A. Deliberate-Indifference Standard In Davis, the Supreme Court explained that a school district should be deemed deliberately indifferent to acts of peer harassment only where its response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances. . . . As such, the deliberate-indifference inquiry does not “transform every school disciplinary decision into a jury question.” Instead, “[i]n an appropriate case, there is no reason why courts, on a motion to dismiss, for summary judgment, or for a directed verdict, could not identify a response as not ‘clearly unreasonable’ as a matter of law.” The deliberate-indifference standard is a high one.  Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not necessarily amount to deliberate indifference.  Schools are not required to accede to a parent’s remedial demands, and courts should refrain from second-guessing the disciplinary decisions made by school administrators.

B. Case Analysis 1. Deliberate Indifference Found a. Doe v. Taylor Independent School District In Doe v. Taylor Ind. Sch. Dist., high-school student Jane Doe, who had been sexually molested by her teacher, Jesse Stroud, sued Taylor Independent School District, its superintendent, Mike Caplinger, and her campus principal, Eddy Lankford, under 42 U.S.C § 1983. See Doe v. Taylor Ind. Sch. Dist., 15 F.3d 443 (5th Cir.)(en banc), cert. denied, 513 U.S. 815, 115 S.Ct. 70, 130 L.Ed.2d 25 (1994). Doe’s claims were based on the following facts.

 Jesse Stroud (“Stroud”) was a biology teacher and assistant coach at Taylor High School from 1981-1987. During that time, it was no secret in the school community that Stroud behaved inappropriately toward female students. Eddy Lankford (“Lankford”) became principal of Taylor High School in 1983. From 1983-1985, Lankford received various complaints about Stroud’s behavior. Specifically, Lankford received parental complaints that Stroud favored certain female students and used inappropriate sexual innuendos in his biology lectures. He also received reports from the school librarian that Stroud was grabbing girls around the waist and hugging them excessively. During the 1984-1985 school year, Stroud began an inappropriate friendship with a freshman female student. Stroud placed gifts in her locker, walked her to class, and exchanged notes with her. In the fall of 1985, rumors about Stroud and the student, who was by then a sophomore, began circulating. In addition, Stroud had begun a similar inappropriate relationship with another female student. During the 1985 football season, Lankford approached Stroud outside the fieldhouse and spoke to him about being “too friendly” with the sophomore student. In May 1986, the school librarian reported to Lankford that she had seen Stroud in the library copy room catching female students as they jumped off of a table into his arms. The librarian described the behavior as akin to “child molestation.” In July 1986, Mike Caplinger (“Caplinger”) became the superintendent of Taylor Independent School District. Lankford did not inform Caplinger of any problems with Stroud or with his pattern of conduct. In August 1986, plaintiff Jane Doe entered Taylor High as a freshman. Stroud immediately befriended Doe, and the two began exchanging notes at school. Stroud gave Doe gifts, took her to lunch during the school day, and walked Page 7 of 20 her to class. In Stroud’s biology class, Doe was not required to take tests or do class work. In January 1987, Lankford heard that Stroud had taken Doe and other students to a rock concert and received multiple complaints about Stroud’s favoritism toward Doe in the classroom. Lankford subsequently spoke with Stroud, and for the first time, notified Caplinger about possible problems with Stroud. In February 1987, the assistant principal of Taylor’s middle school reported to Caplinger that he had witnessed Stroud behaving inappropriately with several freshman girls, including Doe, at a basketball game. Caplinger instructed Principal Lankford to speak with Stroud about the incident, which he did. The athletic director also spoke to Stroud about the report. On Valentine’s Day, Stroud gave Doe a valentine that read, among other things, “ I’m in love with you.” A classmate of Doe’s, Brittani B., found the valentine and took it to the guidance counselor. Brittani also shared her suspicions that the two were having a sexual relationship. At the direction of the guidance counselor, Brittani took the valentine to Lankford the next day. After reviewing the note, Lankford told Brittani that there was no proof the valentine was from Stroud because it was not signed. Lankford did not keep a copy of the note and did not investigate the matter further. He did not tell Caplinger about the incident, nor did he speak with Stroud or Doe. Lankford’s only action was to transfer Brittani out of Stroud’s biology class. Doe and Stroud began having sexual intercourse on and off school grounds in April 1987. In June 1987, two concerned parents reported to Caplinger that Stroud was behaving inappropriately with Doe and other female students at a local fair. In response, Caplinger contacted the parents of a girl who was reported to have been intoxicated and misbehaving with Stroud and Doe. When the girl’s mother assured him that her daughter was not at the fair, Caplinger dismissed the report as unfounded without investigating further or contacting Doe’s parents to discuss the report with them.

In July 1987, Doe’s parents discovered photographs of Stroud and handwritten notes from him in Doe’s possessions. Doe’s parents immediately contacted Caplinger. Caplinger privately met with Doe, who denied any sexual relationship with Stroud. At Caplinger’s request, Lankford called Stroud, who denied any sexual involvement with Doe. For the first time, Lankford spoke of disciplinary consequences. Specifically, he suggested that Stroud resign or take an in-school suspension. Stroud refused. Caplinger, Lankford, and Stroud subsequently met to discuss the situation. Caplinger and Lankford warned Stroud to keep his distance from Doe, and that he would be fired “if something was going on.” No further action was taken. On October 5, Doe’s mother found more love letters from Stroud. On October 6, Stroud was suspended from employment. Stroud later resigned and plead guilty to criminal charges stemming from his molestation of Doe

In determining whether Lankford and Caplinger were entitled to qualified immunity, the Fifth Circuit examined whether Doe had adduced summary judgment evidence that Lankford and Caplinger had acted with deliberate indifference. Id. at 457. The Court ultimately concluded that Principal Lankford could be found to have been deliberately indifferent based on evidence that he (1) received numerous reports of Stroud’s inappropriate conduct with female students, including Doe, over the years, (2) regularly dismissed the various reports and parental complaints about Stroud’s conduct, (3) never recorded any of the reported incidents in Stroud’s personnel file, and (4) never discussed specific incidents with Doe, her parents, Stroud, or Caplinger.  The court explained that, “[a] jury could reasonably conclude that had Lankford taken actions that were obviously necessary in response to the valentine – indeed, if he had responded at all – the relationship might have been derailed at that point and the violation of Jane Doe’s rights would not have been as severe or prolonged.”  With respect to Caplinger, the Fifth Circuit noted that, when he received a complaint from a parent, he promptly notified Lankford and instructed him to speak with Stroud. When Doe’s parents complained to him, Caplinger responded by meeting with Doe, who denied any sexual relationship, and by verbally reprimanding Stroud. The Fifth Circuit found that, although Caplinger’s response was ineffective, it did not exhibit deliberate indifference. Id. In reaching its decision, the court explained: Deliberate indifference will often be a fact-laden question – as it is in this case – and, consequently, it is impossible for us to draw bright lines in such an inquiry. We can forsee many good faith but ineffective responses that might satisfy a school official’s obligations in these situations, e.g., warning the state actor, notifying the student’s parents, or removing the student from a teacher’s class. Indeed, if Lankford had sternly warned Stroud early on to stay away from Doe or risk termination and Lankford then received no later indication of further misconduct, the standard of deliberate indifference would be difficult to establish. . . The Court recognizes that the instant case is not a § 1983 case; however, the Fifth Circuit has since referred to the above quoted language as the “Doe v. Taylor standard” against which it has measured evidence of a school district’s deliberate indifference under Title IX. . . .  To the extent Keller’s liability is based on the misconduct Dan Evans, the Court must determine, like the Court in Doe v. Taylor, whether a school official with supervisory authority over Evans responded to his misconduct with deliberate indifference. As such, the Court concludes that the Fifth Circuit’s analysis of a school official’s response, even in the context of a § 1983 claim, is relevant to this Court’s analysis in this case. . . . In Lance, the Fifth Circuit cites Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253 (6th Cir. 2000) to illustrate circumstances of deliberate indifference. See Lance, 743 F.3d at 1000. In Vance, a female high school student sued Spencer County Board of Education (“Spencer”) for gender discrimination under Title IX. Vance’s claim was based on various incidents of peer sexual harassment that she endured while at school. A jury ultimately found that Spencer had violated Title IX. In reviewing the district court’s denial of Spencer’s post-trial motion for judgment as a matter of law, the Sixth Circuit considered relevant to its analysis whether Spencer had knowledge that its initial response to alleged harassment was ineffective. . .“Although no particular response is required to eradicate all [harassment], the school district must respond and must do so reasonably in light of the known circumstances. Thus, where a school district has knowledge that its remedial action is inadequate and ineffective, it is required to take reasonable action in light of those circumstances to eliminate the behavior. Where a school district has actual knowledge that its efforts to remediate are ineffective, and it continues to use those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.” Id. The Sixth Circuit affirmed the district court’s denial of Spencer’s Rule 50 motion, holding that a jury could find deliberate indifference when:

On one occasion, a student’s harassing conduct culminated in stabbing Alma in the hand. With the exception of talking to the student, there was no evidence before the jury or this Court that Spencer took any action whatsoever. On another occasion, two male students held Alma while another took off her pants and others pulled her hair and attempted to rip off her clothes. With respect to that incident, the only evidence before the jury evincing Spencer’s response is that a class room teacher spoke to the boys and Alma. There is no evidence before this Court that Spencer ever disciplined the offending students nor informed law enforcement as a result of any of these incidents. On yet another occasion, Alma’s mother filed a detailed complaint with Spencer’s Title IX coordinator. An investigation, however, never resulted. These three incidents alone reflect a deliberate indifference in light of the known circumstances. Id. at 265. 2. Deliberate Indifference Not Found In King v. Conroe Indep. Sch. Dist., 289 F.App’x 1, 2 (5th Cir. 2007), a Title IX coach-student sexual-abuse case, a parent reported to the principal, Don Stockton, that “she had overheard her son and his friend discussing an ‘affair’ between [volleyball coach Felicia Shupp] and a female student, in which the student and coach were seen kissing and passing notes.” King, 289 F.App’x at 1. In response, Principal Stockton and the vice principal later met with Shupp and, after receiving a denial from her, warned Shupp to keep her relationships with students professional at all times. No further action was taken by Principal Stockton or other CISD officials. Id. The sexual relationship between King and Shupp ended three years later. Id. The Fifth Circuit concluded that CISD was entitled to summary judgment because King could not establish that the principal, or any other CISD employee with supervisory authority over the offending coach, acted with deliberate indifference toward King’s statutory rights. Id. at 2. The court explained that “Stockton met with Shupp, questioned her about the alleged relationship, and upon receiving a denial, warned her to keep her relationships with students professional at all times.”  The Fifth Circuit concluded that, “[b]ased on the limited information [Stockton] had, such action satisfies the Doe v. Taylor standard.”   

When the Shoe is On the Other Foot *

Updated November 26, 2017

Sometimes teachers sue their school systems for violating their free speech rights.  Sometimes they win, but more often they lose.   The Constitution guarantees teachers the right to speak out as private citizens on matters of public interest without being retaliated against by their school system.  School systems when confronted with a suit alleging retaliation have a variety of arguments at their disposal:

(1) That the teacher’s speech was not about a matter of public interest but about the conditions of his or her employment;

(2) that the school system would have fired or disciplined him or her for reasons unrelated to the speech;

(3) that the speech resulted in the employee being unable to fulfill his or her responsibilities

(4)  that the speech impeded the school system from meeting its responsibilities

or (5) that the speech was made pursuant to the employee’s responsibilities and therefore exempt from First Amendment responsibilities.

The Supreme Court first articulated the standards under which free speech would be protected in the Pickering decision in 1968.  While Pickering provided teachers with a modicum of protection, a subsequent decision (Garcetti, 2006) (See below) severely curtails the rights of school employees to speak out in defense of their children.

supreme court

Pickering Supreme Court 1968

There are a number of examples wherein schools have prevailed based on Pickering.

Boring, for example, was a teacher in Asheville.   She wanted to put on a play that her administrators thought inappropriate.  They transferred her.  She alleged retaliation for the exercise of free speech.   The court found that the school board has ultimate authority for what is being taught and that her case was not an issue of public interest.  However, Pickering also provided two examples when speech that was otherwise protected could result in adverse employment action by a public school system or other government agency.  (1) When the speech resulted in the employee being unable to carry out his or her responsibilities; and (2) when the speech impeded the school system from carrying out its responsibilities (paraphrasing.)  

Boring v Buncombe Fourth Circuit 1998

While the standards under Pickering were fairly clear and universally applied, in 2006 the Supreme Court threw a monkey wrench into the proceedings by expanding the arguments a school could advance in getting a favorable ruling from a court.

Garcetti v. Cebalos, United States Supreme Court, May 30, 2006

The Garcetti v. Cebalos decision in 2006 muddied the waters with respect to school employees’ First Amendment rights even further.   The Supreme Court added two additional questions that must be asked in determining whether a school (or government) employee’s First Amendment rights were protected.   Since these standards have been applied to varying degrees by the Circuit courts, for the purposes of this discussion, we’ll first look at a typical case from the Eighth Circuit:

Lyons v. Vaught, Eighth Circuit, November 22, 2017
Key Words:  Freedom of Speech
Published:  Yes
Decided for:  The college

The facts of this particular case (a college lecturer loses his case, claiming he was dismissed for speaking out on a matter of public interest) are largely irrelevant with respect to public school employees, but the principles involved are not.  It’s always a bit dicey speaking out against practices in a school system that might prove harmful to children.   As this case illustrates, what might seem to be a slam dunk often is not.

It is generally accepted that an employee’s right to speak freely on matters of public interest does not end at the schoolhouse door.   That said, however, the analysis that implies can be rather complex.  The Eighth Circuit’s initial query was relatively straightforward:

“To establish employer retaliation in violation of the First Amendment, a public employee must prove: “(1) he engaged in activity protected by the First Amendment; (2) the defendants took an adverse employment action against him; and (3) the protected conduct was a substantial or motivating factor in the defendants’ decision to take the adverse employment action.”

Any time a school system takes adverse employment action, the school will  argue (1) what the employee said was about an employee grievance, not to a matter of public interest OR (2) that the action it took was motivated by something other than the employee’s speech.

But Garcetti (above) complicates the analysis even further.    In that decision the court established two additional inquiries that must be made in determining whether or not an employee’s speech was protected.

“The first requires determining whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.

Then the analysis takes still another turn:

“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. . . . Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”

The lower courts have wrestled with defining an approach to operationalize when speech was or was not made pursuant to the litigant’s official duties.   It is a critical test and the way courts have addressed it seems to have varied . . . nevertheless, a commonality appears to be that they have conducted a careful analysis weighing both the content and the context of the contested remarks before reaching a decision.

Further complicating the analysis, the Eighth Circuit’s application of Garcetti does not necessarily reflect the reasoning one might encounter in another circuit.  For further discussion of how the various circuits have applied Garcetti, see Circuit Court Interpretations of Garcetti v. Ceballos and the Development of Public Employee Speech (2011).  The Ninth Circuit, for example, has ruled that determining whether or not speech was made pursuant to a school employee’s responsibilities should be left up to a jury to decide.

 

The cases below provide examples where teachers lost free speech cases pre and post Garcetti.

In Fox v. Traverse City,  a teacher lost when she was allegedly retaliated against for complaining about her class size.   The court concluded that this was a concern about her conditions of employment, not a matter of public interest, and dismissed her lawsuit In this reviewer’s view, Tox would have lost this particular case pre or post Garcetti.

Fox v Traverse City 2010

In the 2010 Lamb v. Booneville case below, a teacher alleged that she was terminated for a younger teacher because she had complained about an autistic child being corporally punished.  On the face of it, a seemingly defensible action.   However, the teacher undermined her own case by emailing a colleague that she was not so much concerned about the physical punishment as she was that the administration had not consulted her beforehand.  That in the eyes of the court made it a condition of employment issue, not a matter of public interest.   As for her argument based on age, the court found that the school system had adequate justification for terminating her because in several cited instances her behavior was unprofessional and disrespectful.  

Lamb v Boonville 2010

Examples Where a Teacher’s Rights Were Upheld

While all of the cases below offer a glimmer of hope to school employees advocating on behalf of their students it must be noted (and taken in consideration) the fact that all of these cases were decided before the Garcetti decision.  Consideration of the Supreme Court’s opinion could have led to a different outcome in the cases below.

In an example where a special education teacher’s right to sue under Section 1983 was upheld  see Sturm v. Rocky Hill in 2005.  

 Sturm v Rocky Hill 2005

And another nurse’s rights were upheld by the Third Circuit that same year.

McGreevy v Stroup 3rd 2005

Even when a teacher does succeed in defending herself, the process can be long and emotionally painful.   One of the best examples of that kind of case was that of Pamela Settlegoode (an appropriate name if there ever was one.)  She was fired after advocating for her students.   The district failed to convince a jury that her speech should not have been protected or that she would have been fired even if she had not engaged in protected speech.   As a result, and after many trips to the courtroom, the Circuit court upheld her award of more than one million dollars.  

Settlegoode v Portland Ninth Circuit 1993

 Under Garcetti, of course, this same case probably would have been “tossed” from the gitgo.

In an undated article from the NEA, the author cited numerous cases where school employees lost, including a case in Delaware where a school psychologist was fired for complaining to a Vice Principal that the IDEA regulations were not being applied.

Houlihan v. Sussex Technical, District Court, November, 2006

Key Phrase:  First Amendment, Freedom of Speech
Published:  Yes
Decided for: The school system

This particular case reflects a “bad luck” scenario.  The case originated in 2004 but was finally adjudicated in 2006, just after the Garcetti decision.  It was ultimately dismissed based on Garcetti.   However, a couple of facts may give some comfort to school psychologists concerned about action (or inaction) by their school systems with respect to children’s rights.  First, as a matter of record, the school wasn’t simply upset at having IDEA violations brought to their attention; it was the manner in which it was done.  (They had previously reprimanded the school psychologist for being “uncooperative, unfocused, dragging out meetings and undermining the High School’s administration.”  A second “fact”of possible importance was that according to the record she had been hired  in October, 2001, and was informed in November, 2004, that her contract was not being renewed. In Delaware, teachers employed before 2009 had to have had three years of service (at least two with the employing school) before becoming tentured.

Public school employees may enjoy some protections under state whistle blower laws that protect employees who complain about administrative mismanagement.   A more important protection, however, for teachers or school psychologists who have achieved career status or tenure may only be fired for specific statutory reasons.   These vary from state to state.

Additionally, some union collective bargaining agreements or school board policies may give tenured employees (including school psychologists) additional, enforceable protections against retaliation for simply reporting wrong doing.

Also nothing in these decisions would compel an employee to retract a true report or to make a false statement.

Without First Amendment protections to rely upon, non tenured school employees may find themselves as significantly greater risk than tenured employees, but even for them, discreetly informing one’s supervisors of possible IDEA or Section 504 violations, provided in the spirit of helpfulness, are unlikely to trigger adverse employment actions.  (Sometimes the music is more important than the lyrics in these situations.)  In NC, for example, diismissing a non tenured employee just because the supervisor thinks s/he can find someone who will do the job better  . . . with no other criticism or complaint . . . would be a defensible reason against an appeal.   However, assuming that principals only propose while school boards dispose, a principal’s recommendation for non renewal is not necessarily determinative.  School boards can (and have) overruled principals when they found an employee worthy.

The right to “freedom of speech” may not end at the schoolhouse door; but it does come with a lot of strings.   There are, however, other avenues for defending onself against a retaliatory action other than invoking First Amendment protections.  Ultimately, the decision to speak out or keep silent may be influenced more by a service provider’s moral values than by an understanding of the complex caselaw regarding Constitutional First Amendment protections.   If we do not speak out in defense of the children we serve in order to protect them from harm . . . who will?  How we voice those concerns, however, can mean the difference between improved conditions for the children we serve versus and an increasingly unpleasant work situation for ourselves.

In a hospitable work environment, where everyone takes their responsibility to provide children and parents with federally and state guaranteed rights seriously, advocating for children need not involve the calculus required in more adversarial situations.  That calculus isn’t likely to be easy.  NASP Ethics offer some guidance but are hardly unambiguous.   Additionally, arguments based on an ethical standard that an administrator may find both legally and professionally irrelevant to his/her own practice can prove less than convincing.  Nevertheless, this is what NASP has had to say:

Advocacy: School psychologists have a special obligation to speak up for the rights and welfare of students and families, and to provide a voice to clients who cannot or do not wish to speak for themselves. Advocacy also occurs when school psychologists use their expertise in psychology and education to promote changes in schools, systems, and laws that will benefit schoolchildren, other students, and families.Nothing in this code of ethics, however, should be construed as requiring school psychologists to engage in insubordination (willful disregard of an employer’s lawful instructions) or to file a complaint about school district practices with a federal or state regulatory agency as part of their advocacy efforts.  (Emphasis added)

Even when advocacy would be supported by law, other factors to be considered (in addition to the cost and uncertainty of prolonged litigation lasting years)  include but are not limited to health concerns and the mental and emotional well being of both the professional and his/her family.   For a summary of research regarding the former (health impact), see an article in a 2012 online publication by Social Medicine entitled “The Health Consequences of Speaking Out.”    (Resource suggested by Tyler St. Cyr, CAGS)