A school district disciplined one of its teachers after she allegedly destroyed student work and raised her voice at a science fair. The district placed her on paid administrative leave and directs her "to have no further communication with any District employee," including "any verbal, written or electronic communication whatsoever" during her suspension. Is this an unconstitutional gag order in violation of the First Amendment?
The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009) a district court case decided by Judge McMahon. Plaintiff argues that this speech restriction violates the First Amendment because it violates the right of free association in that she cannot communicate with a union representative, who was a district employee. (Another issue of interest in this case -- the right to privacy -- will have to wait for now).
In resolving this issue, Judge McMahon is faced with a quandary: in public employee First Amendment cases, the courts require that the plaintiff establish that she was silenced on a matter of public concern. That issue typically arises when the plaintiff is retaliated against, i.e., she is demoted or fired for blowing the whistle. That did not happen here; rather, the gag order prevents plaintiff from speaking. Does the public concern test apply in this context? After providing a good overview of the state of the law in this area, the district court says "yes." If the public concern test arises in freedom of association cases involving retaliation, then it must apply in this case, where the plaintiff is simply prohibited from speaking to certain people. This is a complicated issue; the Second Circuit has never dealt with this precise point. But over the years, the courts have emphasized that there is no hierarchy among First Amendment rights in that there is no greater right to speak than there is to petition the government for grievances. The trend in "gag order" cases and freedom of association cases is to apply the "public concern" test in this context; Judge McMahon does so here. A contrary holding would give employees greater rights to associate than to speak out.
In framing the test this way, Judge McMahon dismisses the Complaint on this point. Plaintiff was not prohibited from engaging in associational matters on a public concern. Barring her from speaking to the union (if, in fact, that was the school district's intention) does not silence plaintiff on a matter of public concern because "the only reasonable inference that can be drawn from the pleadings is that Plaintiff's desire to communicate with her union representative was motivated by her own self-interest, not by any desire to vindicate federally protected labor relations policies. There is simply nothing in the complaint that suggests Plaintiff wished to confer wit her union representative about anything other than 'her desire to protect her job and/or her reputation as a schools counselor.'"
Moving right along, the district court next rejects the argument that the gag order is illegal because the school district, through the union contract, agreed that employees can speak with the union about personnel matters. A Tenth Circuit case supports this analysis, Shrum v. City of Coweta, 449 F.3d 1132 (2006), but Judge McMahon declines to follow Shrum because it is poorly-reasoned in that it misapplies Supreme Court authority which requires that courts resolve the threshold issue of whether the protected association impacts on a matter of public concern. (For you First Amendment mavens, it appears that the Tenth Circuit applied the Pickering balancing test -- involving potential disruption of school district functions arising from the speech -- rather than the public concern test).
In the end, the district court notes that she is not crazy about the attorneys' briefing in this case, and that "the parties have barely begun to scratch the surface of the issues presented by Shrum." No matter. Plaintiff ultimately must lose this issue on qualified immunity grounds. As readers of this blog may know, qualified immunity means public officials cannot be sued for damages if the claimed legal violation was not clearly-established at the time. There are no cases quite like this one in the Second Circuit, which means the law in this area is not clearly-established and the defendants cannot be expected to know the full contours of the law. However interesting Rutherford's freedom-of-association case may be, for now, that claim is too esoteric for her to prevail as a matter of law.