Constitutional claim against school district fails under Monell

One pitfall in filing civil rights cases against public defendants is the principle that you cannot directly sue the employer, be it a town, village, city, or school district unless you can show the rights violation drew from municipal policy. You don't have to produce a written policy. The policy under Section 1983 may be proven when a final decisionmaker is responsible for the adverse decision, or when the plaintiff can show the violation resulted from an unwritten policy or widespread practice. If you can do that, you have a Monell claim, named after a Supreme Court decision from 1978. Without a Monell claim, you have to sue the individual actors who violated your rights. This case highlights that dynamic.

The case is Kennedy v. Bethpage Union Free School District, a summary order issued on February 6. Plaintiff was a social worker for the school district who spoke out in favor of additional resources for schoolchildren with mental health and psychological issues. The district had a sharp increase in these students. She also spoke out about the rise in mental health incidents among these students. Plaintiff was eventually reassigned from the high school to the elementary school. She sues for retaliation under the First Amendment.

For reasons that are not clear, plaintiff stipulated only to sue the school district, not the individual decisionmakers. That means she needs to plead a viable Monell claim against the district. The district court said she failed to do so, and the Court of Appeals (Cabranes, Lynch and Robinson) agrees. Bottom line: she did not "show either a policy or custom under Monell," and her allegations in this regard are conclusory. The Court writes:

The pertinent allegations in the SAC were conclusory and insufficient. See, e.g., SAC ¶ 108 (“Each of the aforesaid acts or omissions on behalf of the District were undertaken pursuant to a policy or custom of the District, enacted by and carried out by Schneider, as Superintendent, with the tacit approval and authority of the Board of Education and carried out via his direct reports . . . .”); Id. at ¶ 125 (“Plaintiff was advised that the policy [requiring District approval before she spoke at PTA meetings] was directed solely at her and was done so at the direction of Mr. Schneider with the knowledge, condolence, and approval of the District.”).

You need more than this to plead a Monell claim. Pleading it correctly is not easy, as the plaintiff may not have all the evidence she needs prior to filing the lawsuit. Some plaintiffs will amend the complaint later on in discovery to plead a Monell claim if and when the discovery comes their way that supports such a claim. 

The Court of Appeals does not address the merits of plaintiff's First Amendment claim. My guess is that claim would have been dismissed as well. Not all speech in the public workplace is protected under the First Amendment. The Supreme Court said in Garcetti v. Ceballos (2006) that speech pursuant to the plaintiff's official job duties is not protected under the Constitution. The Second Circuit has interpreted that doctrine to cover any speech that is part and parcel of the plaintiff's ability to perform her job. That is a broad standard which knocks out many speech claims in the public sector. Had the Court of Appeals determined whether the plaintiff in this case had a triable case on the free speech claim, that claim would have been vulnerable under Garcetti.