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Powers v. Northside ISD, __ F. Supp. 3d __, 2015 WL 6686505 (W.D. Tex. 2015).

Facts:  An elementary school principal and assistant principal filed suit against the district and district superintendent following their terminations for alleged standardized testing irregularities.  The principals alleged that their terminations constituted retaliation for reporting the administration’s failure to reasonably accommodate a disabled student, and the superintendent used his influence to bring about their terminations.  The administrators brought claims against the district for violations of the Texas Whistleblower Act and their free speech rights under the United States and Texas constitutions.  The superintendent filed a motion to dismiss the claims against him in his individual capacity for the alleged violation of the principals’ First Amendment free speech rights.

Holding:  The trial court dismissed the individual constitutional claims against the superintendent.  The superintendent argued that, because the school board has final decision-making authority over district employment decisions, he could not be held personally liable for the board’s vote to terminate the contract.  Last year, however, the Fifth Circuit Court of Appeals issued a decision calling into question prior case law supporting that defense.  In Culbertson v. Lykos, 790 F.3d 608 (5th Cir. 2015), two contractors whose company provided breath-alcohol testing services for Harris County brought claims against the Harris County assistant district attorney in her individual capacity, alleging First Amendment retaliatory termination. The contractors alleged that the district attorney pressured the Harris County Commissioners Court, the relevant decision-making body, to terminate their contract with Harris County.  The Fifth Circuit held that the district attorney could be held personally liable despite the fact that she was not the final decision-maker if it was shown that the recommendation was made in retaliation for constitutionally-protected speech and was the reason the adverse employment decision was made by the final decision-maker. Similarly here, a supervisory district official like the superintendent could be personally liable if the employment recommendation to the board (1) was made in retaliation for First Amendment protected speech, and (2) was the reason the board ultimately terminated the employees.  If the evidence shows otherwise, individual liability cannot attach.  In this case, the court held that the administrators’ allegations were sufficient to state a claim against the superintendent.  But that didn’t end the inquiry.

The superintendent also maintained that he was protected by qualified immunity in that, even if the principals had stated valid First Amendment claims, those claims were not “clearly established” under the law that existed at the time of their terminations.  Under the defense of qualified immunity, a government employee cannot be personally liable unless a constitutional violation is alleged and the law was “clearly established” at the time of the challenged conduct. Even the appeals court in Culbertson recognized that the law was unsettled on a supervisor’s liability for employment recommendations to an ultimate decision-maker.  Because this area of law remains unsettled, the trial court held that the principals’ claims against the superintendent were subject to dismissal based on qualified immunity.

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