The New York public school teacher filed suit against the city department of education, the school’s principal, and the school’s vice principal, claiming that her negative evaluations and subsequent termination were in retaliation for exercising her First Amendment right to free speech.

The dispute arose after the teacher planned to include as part of her ninth grade English curriculum a critical look at the Central Park Five case, in which five black and Latino youths were wrongly convicted of the brutal 1989 murder of a woman in Central Park.  After observing the lesson, the assistant principal instructed the teacher to be “way more balanced” in discussing the case because he feared that it would unnecessarily “rile up” black students. The teacher and assistant principal had a heated discussion over the matter, but the teacher eventually agreed to follow the instructions to keep the lesson balanced.

When the teacher and principal later met, the principal expressed his agreement with the assistant principal’s instructions and was also critical of her use of the short story “Nilda” because it contained a racial epithet.  When the teacher defended her use of the short story, the principal told her she was naïve and ordered her to remove it from her lessons.

The lawsuit alleged that, after these issues, her relationship with the supervisory staff began to deteriorate.  She later received below average ratings in several performance evaluations and was eventually terminated. Her lawsuit claimed that the performance evaluations and termination were in retaliation for exercising her First Amendment rights.

The trial court disagreed and dismissed the suit against the department of education and the two administrators.  The Second Circuit Court of Appeals affirmed. To state a valid First Amendment claim, the teacher had to allege that (1) she engaged in First Amendment activity, (2) she suffered an adverse employment action, and (3) there was a causal connection between the protected activity and the employment action.  To be protected by the First Amendment, a governmental employee must be speaking as a citizen on a matter of public concern.

However, when an employee makes statements pursuant to their official duties, the employee is not speaking as a citizen for First Amendment purposes.  That was precisely the case here. The statements contained in the teacher’s lessons were made to her own students, at school, during class, and concerned a topic that she believed to be of importance to continuing their education.  Because the teacher did not speak as a citizen on a matter of public concern, she was not entitled to First Amendment protection. The teacher had argued that a different, more lenient, standard should apply to statements by educators during instruction so that her lessons warranted First Amendment protection.  The Second Circuit Court of Appeals did not agree. The United States Supreme Court also recently declined to take up the case, thus, allowing the appellate ruling to stand.

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