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Teacher’s grievance against principal not protected by First Amendment

Speech not required in an employee’s job description can still be part of a public employee’s official duties. The Second Circuit Court of Appeals, which is not Oregon’s circuit, recently held that maintaining classroom discipline is implicitly part of a teacher’s official duties; thus, the teacher’s grievance against a principal for failure to discipline a student is not speech protected by the First Amendment. In Garcetti v Ceballos the U.S. Supreme Court held that speech made pursuant to a public employee’s official duties is not protected under the First Amendment.

On two separate occasions, the same student threw a book a book at the teacher. Each occasion, the teacher sent the student to the principal’s office, but the principal did not discipline the student. The teacher filed a union grievance regarding the principal’s failure to discipline the student. Due to the grievance, the teacher claims to have been wrongly given negative evaluations, accused of sexual abuse and abandoning his class, arrested, and terminated. He filed a lawsuit against the principal and school district alleging illegal retaliation in response to speech protected by the First Amendment. The school district argued that the teacher’s grievance was not speech protected by the First Amendment because it was filed pursuant to his official job duties - maintaining classroom discipline.

The court determined that the teacher’s filing of a grievance was not protected by the First Amendment because it was in furtherance of his official duties. The grievance was filed for the purpose of maintaining classroom discipline, and maintaining classroom discipline is one of a teacher’s official job duties. Adopting law that already applies in Oregon, the court stated that speech can be “pursuant to” a public employee’s official job duties even though it is not required by the employee’s job description. Although maintaining classroom discipline was not required by the teacher’s job description, it was still considered part of his official job duties because it is an indispensable prerequisite to effective teaching and classroom learning.

Weintraub v Board of Education, No. 07-2376-cv (2nd Cir. 2010).

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