No speech retaliation claim for school employee who asked about dangerous student

It's always been the rule that public employees cannot suffer retaliation for speaking out on matters of public concern. But that rule was modified in 2006, when the Supreme Court issued the Garcetti ruling, which said the employee must speak as a citizen to have protection; workers who speak pursuant to their job duties are not protected. Ever since, the volume of such cases has dwindled as plaintiffs and their lawyers know these cases are vulnerable since the best workplace speech usually arises from the employee's job duties, i.e., the comptroller who exposes embezzlement. I have thus noticed that fewer and fewer employee speech cases are being decided by the Court of Appeals. This is such a case, but the plaintiff loses.

The case is Henderson v. Greenville Central School District, a summary order issued on June 22. The plaintiff loses not because she did not speak as a citizen but because her speech was not on a matter of public concern: it addressed her private grievance, something the public would not generally care about.

Plaintiff was an aide/monitor who spoke up about a potentially dangerous student at the high school. On its face, that would constitute public concern speech, as anyone would be concerned about this. But that was not free speech but a private grievance because, in context, plaintiff was concerned about the dangerous student's relationship to her son. She did not want this student near her kids. This may be important speech, but it is not speech on a matter of public concern, as her primary motive in speaking was to protect her children, not to inform the public at large about the dangerous student. 

But there is also a larger problem with her speech, the Court of Appeals (Newman, Cabranes and Bianco) states:

The problem is plaintiff lacked firsthand knowledge about the dangerous kid, including his first name. Rather, plaintiff said, she "sought only to 'gather information'" and "she felt compelled to inquire a second time because 'as a parent, [she] wanted to get some advice from somebody that [she] . . . kn[e]w.' Her search for personal comfort—'to get to the bottom of this . . . situation'—may be 'understandable,' but it does not suggest that her fact-gathering inquiries should be 'elevated . . . to a matter of public concern.'”

This is a summary order, which means it lacks full precedential value, but the holding in this case is actually unique. The reasoning above represents an angle on public concern speech that I have not seen before. But the Court of Appeals believes the facts are not so unique that the case deserves a full opinion, as the facts still fall within the public concern framework.