The Ninth Circuit Court of Appeals recently overruled a lower court’s dismissal of a lawsuit filed by a former school district employee who had been fired for sitting next to her boss in public.
In 2004, the Washoe County School Board publicly convened in Reno, Nevada to announce its decision to terminate the employment of general counsel Jeffrey Blanck. Providing moral support, administrative assistant Katherine Nichols sat stoically beside him without uttering a single word.
The next day, Nichols was offered a difficult choice: demotion or early retirement. After accepting the latter “option,” she filed suit. In dismissing her case, a federal District Court reasoned that the district had a legitimate interest in preventing “disruptive” employee conduct.
Last month, the Ninth Circuit Court of Appeals reinstated Nichols’ lawsuit. Judge Margaret McKeown noted the absence of any evidence of possible disloyalty or disruption that sitting next to one’s boss in public portends.
The court ruled that actual disruption or its reasonable anticipation is the only permissible grounds for disrupting public employment.
In a related opinion released in June, the US Supreme Court espoused restricted First Amendment rights for outspoken public servants who openly complain about workplace issues.
The Court recognized an exception for speech that pertains to matters of vital public import, however. In fact, the entire legal basis of Nichols’ original claims rested upon this “public interest” immunity against official reprisals.
This type of employment controversy lies within the proper definition of “speech.” Can tacit actions such as taking a certain seat constitute “speech”? Just how far should the concept of “expression” be extended? What constitutes valid grounds to terminate public employment?
This case is a prime example of why private and public employers, especially school districts which often manage and make decisions by committee need to tread carefully.
If you are a California school administrator with a question about school district related employment law, student/teacher safety, special education, accommodations, student rights, free speech or discipline, feel free to call attorney Richard Oppenheim at 818-461-8500. There is never a charge for an initial consultation and we can help you choose the best direction to resolve any school district employment law issue.