Garcetti standard dooms Almontaser's free speech case

A Southern District judge has dismissed a First Amendment lawsuit brought by a high school principal who was forced to resign after she gave an interview with the New York Post about a controversial t-shirt which made reference to the Arab-Israeli conflict.

The case is Almontaser v. New York City Department of Education, 2009 WL 2762699 (S.D.N.Y. Sept. 1, 2009) decided by Judge Stein. This case previously went to the Second Circuit, which affirmed Judge Stein's order denying Almontaser's motion for preliminary relief. That case can be found at 519 F.3d 505 (2d Cir. 2008). The Court of Appeals' ruling is among the few to interpret the Supreme Court's ruling in Garcetti v. Ceballos, 547 U.S. 410 (2006), which altered the rules governing the free speech rights of public employees. I wrote about Amontaser's Second Circuit ruling here.

Almontaser was interim acting principal of Khalil Gibran International Academy. The New York Post wanted comment on the t-shirt. The Board of Education make arrangements for the telephonic interview, and it also arranged, guided and directly participated in the interview. Almontaser testified that she gave the interview "because I was told it was in the best interest of the school. Otherwise I wouldn't have done the interview." Although she claimed the newspaper misquoted her, it was her comments during the interview which led to her forced resignation.

The case began when an activist group accused Almontaser of associating with an organization known as Arab Women Active in the Arts and Media which distributed t-shirts bearing the words "Intafada NYC." When the New York Post interviewed Almontaser, she denied any relationship with that organization and, according to the Court of Appeals, the New York Post misquoted her in stating that the t-shirts were an "opportunity for girls to express that they are part of New York City society."

Prior to 2006, Almontaser would have a great case. The Supreme Court has held for at least 40 years that public educators (and all public officials, really) have the right to speak out on matters of public concern without fear of reprisal. There were always limits to that rule (which covers whistleblowers also), and the plaintiff could lose the case only if the speech was too disruptive of the public workplace or she would have been fired even without the speech.

It's not 2005 anymore. In Garcetti, the Supreme Court limited the rights of public employees in holding that speech made in the course of the plaintiff's official job duties is not protected under the First Amendment, only speech made as a citizen. No matter how important it may be, speech made in the course of your official duties is no longer speech on a matter of public concern; it's merely job speech, treated no differently under the Constitution than a watercooler conversation about the Yankees.

A lot of cases have gone out the window under Garcetti's new formulation. Almontaser's is one of them. What kills the case is the fact that "the parties agree that Almontaser's official duties included speaking with the press." As the interview owes its existence to Almontaser's official responsibility to interact with the press on the school's behalf, the speech is unprotected and management can force her to resign.