Tuesday, July 15, 2014
The D.C. Circuit ruled today that a former teacher in the D.C. schools did not enjoy protection under the First Amendment after he was fired for sending an e-mail complaining about his principal's misrepresentation of student test scores to former Chancellor Michelle Rhee.
The teacher, Bruno Mpoy, had a long list of complaints against his principal, Donald Presswood, when he sent an e-mail to Rhee. Nearly all of these involved classroom conditions. But after Mpoy was fired (and undoubtedly aware of the first part of the Garcetti test and the D.C. Circuit's interpretation of it), he focused on this sentence in the e-mail:
Dr. Presswood, the principal of Ludlow Taylor, misrepresented students' performance and results on the DCCAS Alternative [the achievement test used to measure student learning and improvement].
Mpoy argued that this sentence was not written pursuant to his official responsibilities--and that he therefore jumped the first Garcetti hurdle by showing that he spoke "as a citizen." (As a threshold matter, in order for a public employee's speech to enjoy First Amendment protection, the employee must have spoken (1) as a citizen and (2) on a matter of public concern. Only then, if a plaintiff can so show, the court goes on to apply the free speech test, whether the government "had an adequate justification for treating the employee differently from any other member of the general public.")
The D.C. Circuit disagreed. The court ruled that Mpoy wrote this sentence in his capacity as an employee:
In [the context of the e-mail], the sentence about the misrepresentation of the students' results was also plainly a greivance about Presswood's interference with Mpoy's duty to assess and ensure the achievement of his students.
That means that Mpoy didn't even get out of the gate under Garcetti. No citizen speech; no protected speech; no First Amendment protection.
The court added a section to address the recently decided Lane v. Franks. In that case, the Supreme Court held that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena," when testifying was outside the scope of the employee's "ordinary job responsibilities." The court considered the possibility that the adjective "ordinary" signalled a narrowing of the area of employee speech left unprotected by Garcetti.
But the court said that it didn't have to decide that; it ultimately didn't matter. That's because the school officials could reasonably believe that they could have fired Mpoy--and therefore enjoyed qualified immunity.