The recent case of Fox v. Traverse City Area Public Schools (2010 WL 1948203) serves as a good reminder that the speech of public school employees is not always “protected speech” as most of us have come to understand that term in the context of the First Amendment to the U.S. Constitution.
On a procedural note, this case was first heard by the U.S. District Court for the Western District of Michigan. That court ruled in favor of the school district, and the case was then appealed to the Sixth Circuit U.S. Court of Appeals. The ruling of the Sixth Circuit Court of Appeals is binding on everyone in the states of Michigan, Ohio, Kentucky and Tennessee.
The plaintiff in the case was Susan Fox, a special education teacher employed by Traverse City Area Public Schools. Fox was a probationary teacher in her second year with the district when she was informed that her contract would not be renewed because of her failure to complete “required student Medicaid and IEP reports in an appropriate and timely manner,” her “unauthorized delegation of responsibilities to teaching assistants,” and her “failure to provide the minimum required instructional time to students.” Additionally, it appears that the school had received complaints from parents that Fox was making “inappropriate recommendations regarding medications for her students.” Fox disputed these issues, however, and alleged that the real reason she was dismissed was because she had complained to her supervisors about the size of her teaching caseload. Specifically, Fox argued that her contract was not renewed because of complaints she made to her principal and the special education director that her caseload exceeded the legal limit. As a result, Fox sued the school district on the theory that the district retaliated against her for exercising her First Amendment right to free speech.
To win a case based on a claim of retaliatory discharge in violation of the First Amendment, a plaintiff must prove (1) that their statements constituted protected speech/expression under the First Amendment; (2) that they suffered an adverse employment action; and (3) that the adverse employment action was motivated at least in part based on the speech/expression that was protected by the First Amendment.
In the present case, the court had to look no further than the first element because it concluded that Fox did not engage in any speech that was protected by the First Amendment. The U.S. Supreme Court’s holding in the case of Garcetti v. Ceballos (2006) is the controlling legal authority on this matter. In Garcetti the U.S. Supreme Court held that if an employee’s speech is directly related to their professional responsibilities, then that speech is not entitled to First Amendment protection. Sometimes it is difficult to determine if a public employee made statements strictly as an employee related to their employment or made statements as a concerned citizen that addressed a matter of public concern. The latter is protected speech while the former is not. Fortunately for us, the Fox case was an “easy call,” and thereby presents us with a clear example of speech that is not protected.
Looking at the facts of the case in the light most favorable to the plaintiff, the court concluded that Fox made her statements to her supervisors as part of a complaint about her specific working conditions. The court found no evidence that the complaints were made as a “public citizen” on a matter of “public importance.” Rather, they found that this was a matter specifically owing its very existence to the employee-employer relationship. There was no attempt to file a union grievance or to write a letter to the editor of the local paper decrying large teaching case loads in violation of state law. The court found that Fox restricted her complaints to the chain of command, which underscored the fact that this was a private employment grievance rather than a matter of public importance.
To summarize, Fox was dismissed for performance issues that were well-documented, but the court was willing to consider that her dismissal could be based, in part, on statements she made to her supervisors. If the court found in her favor, then the school district would be liable for retaliating against her for her exercise of a constitutionally protected activity. However, putting Fox’s statements under the microscope of First Amendment law revealed that her statements amounted to nothing more than unprotected speech in the workplace. Nothing Fox said to her supervisors amounted to constitutionally protected speech.
