Thursday, August 8, 2013
In Leslie v. Hancock County Bd. of Educ., No. 12-13628 (11th Cir. Jul. 12, 2013), the 11th Circuit Court of Appeals held that because the law was not clearly established that a public employer can be held liable for retaliation against policymaking or confidential employees for speech about government policy, school board members sued in their individual capacity were entitled to qualified immunity. The Superintendent of the Hancock County School System, Awanna Leslie, and Assistant Superintendent Bettye Richardson, were fired and demoted, respectively, after complaining about local tax policy in the Atlanta Journal-Constitution. Leslie and Richardson sued under § 1983, alleging that the school board retaliated against them for exercising their First and Fourteenth Amendments rights to free speech. At trial, the Board argued that the plaintiffs' speech was not protected by the First Amendment under the balance of interests test outlined in Pickering v. Board of Education, 391 U.S. 563 (1968). Pickering's balancing test supported its position, the Board argued, because Leslie and Richardson were policymaking employees, and neither the U.S. or Georgia supreme courts have answered the question whether Pickering favors the government employer. Thus, the Board members argued, qualified immunity protected them because Leslie and Richardson's right to free speech in this context was not clearly established. Individual public officials acting within their discretionary authority have qualified immunity if their acts does not violate clearly established statutory or constitutional rights. The 11th Circuit also found that it lacked subject matter jurisdiction over the Board's appeal of the denial of its motion to dismiss for failure to state a claim. The Court stated that the Board's claim was not "inextricably intertwined" with the individual members' appeal of the district court's qualified immunity ruling, and thus there was no pendent appellate jurisdiction.