Exam proctor can be fired for reporting Regents exam shenanigans

The plaintiff was a New York City exam grader and proctor who reported to the New York City Special Commissioner of Investigation that a high school principal tried to enlist plaintiff in a scheme to alter a student's Regent's exam. Plaintiff said no to this and reported the principal. Plaintiff brings this action, claiming he was terminated in retaliation for his whistleblowing. What result?

The case is Severin v. New York City Dept. of Educ., a summary order issued on May 1. Morally, plaintiff is in the right. You want whistleblowers like this working for the city. He was probably shocked to know that his case was dismissed because his whistleblowing does not count as First Amendment speech. Sure, it is speech. But it is not free speech under the First Amendment.

The reason for this is that the Supreme Court has held that public employees are not protected if they engage in work speech, only citizen speech. Work speech is pursuant to your job duties. Citizen speech is what the rest of us do. Employees can engage in citizen speech, but it must be unrelated to their job duties, for the most part. The Supreme Court said this in Garcetti v. Ceballos (2006). In 2010, the Second Circuit said it's work speech if the statements are "part and parcel" of the plaintiff's "concerns about his ability to properly execute his duties. That framework takes a lot of speech out of the First Amendment's protection, and ever since Garcetti, free speech retaliation cases by public employees have been dismissed with regularity.

Plaintiff's case fails because reporting testing irregularities, even fraud, are part and parcel of his capacity to perform his work. He was an exam grader and test proctor, after all. While his written job duties did not compel him to report this misconduct, that does not matter. Courts look beyond the job description in ruling on cases like this. Nor does it matter that plaintiff was not overseeing the specific exam at issue in this case, the Court of Appeals (Livingston, Calabresi and Perez) says, "because the proper administration of a system-wide exam, such as the Regents exam, requires the vigilance of those responsible for the exam throughout the system."