Wednesday, October 10, 2012
Oregon federal magistrate recommends that First Amendment free speech claim based on bus driver’s termination for Confederate flag display should proceed to trial
Webber v. First Student, Inc., No. 11-3032 (Aug. 2, 2012), is an interesting case. An Oregon U.S. Magistrate Judge has recommended that the district court should deny the motions for summary judgment filed by a school district and private contractor, and that a school bus driver should be allowed to proceed to trial with his Section 1983 First Amendment claim regarding his suspension and termination for refusing to remove a Confederate flag from display on his vehicle while parked at work. The magistrate stated there was a sufficient factual dispute that: (1) the bus driver’s employer, a private contractor, acted under color of state law under either the “compulsion” or “joint action” test; and (2) the bus driver’s free speech rights were violated under the five-part test established in Pickering v. Board of Education, 391 U.S. 563 (1968), when he was disciplined and later discharged.
Mitchell H. Rubinstein