This teacher was fired for asking that the law be followed for her students.
2004 FEDERAL APPELLATE COURT CASES INVOLVING FIRST AMENDMENT PROTECTIONS OF GOVERNMENTAL EMPLOYEES
Presented by Steven B. Rynecki, David Strom, and Lisa Salkovitz Kohn
January 2005
Click HERE for entire article.
A. Protected Speech
...12. Settlegoode v. Portland Public Schools, 371 F.3d 503 (9th Cir. 2004). A teacher sued her school district and supervisors alleging, inter alia, her contract was not renewed in retaliation for exercising her First Amendment right to free speech. Settlegood was an Adapted Physical Education teacher working for the Portland Public Schools. She was an itinerant teacher and was exposed to multiple schools in the district on a daily basis. Plaintiff became concerned about the treatment of disabled students in the schools and problems with the physical plant and resource deficiencies at several schools. She attempted to speak with her supervisor who dismissed her concerns. Extensive oral and written communication ensued between Settlegood and several supervisors. Eventually, the school board decided not to renew her contract citing poor performance reviews, including poor reviews of her IEP reports.
The court followed the three part test set forth in Keyser v. Sacramento Unified Sch. Dist., 265 F.3d 741 (9th Cir. 2001) to determine whether Settlegood was fired in retaliation for exercising her First Amendment rights. The first of the three parts asks whether the plaintiff’s conduct was constitutionally protected. Here, the court found that under the Pickering test her whistle blowing speech was a matter of public concern. The court stated that not only were her free speech rights implicated but the content of her speech was of paramount concern to the parents of disabled children. “Teachers,” the court stated, “are uniquely situated to know whether students are receiving the type of attention and education that they deserve.” It cited to the Pickering case, itself, for the proposition that courts have long recognized, “the importance of allowing teachers to speak out on school matters.” The court repeatedly stated that it could find no instance in which the plaintiff’s speech was harmful to the school, the district, or the children. It stated that the fact Settlegood went to her supervisors with the complaint, rather than the press, is an important factor to consider in a Pickering balancing test. Essentially, her speech was of public concern, it was protected, and it was helpful, rather than harmful, to the employer.
The second prong of the Keyser test is the requirement that the plaintiff show her speech was a substantial or motivating factor in her punishment. Here, the court cited to the fact that the plaintiff’s evaluations went from positive to poor once she began to complain about the problems she perceived within the schools. This was noticeably so regarding the evaluation of her ability to write IEPs. The court said that the writing of IEPs is a dynamic and collaborative process. None of her IEPs was specifically criticized by anyone who actually read them. Importantly, the court discussed the fact that if the reports did have problems it would have been incumbent upon her supervisors to adjust and review the reports. They did not do so.
Finally, under Keyser even if the plaintiff proves the second prong the employer can still escape liability by showing that it would have taken the same action in the absence of the protected conduct. The court stated that this is a very high burden to meet. Proof that the IEPs were not adequate is only proof that the employer could have terminated her, not that it would have. Defendants were not able to offer any evidence that other teachers had been terminated for drafting inadequate IEPs. The court found that the defendants were not able to meet their burden of showing the plaintiff’s contract would not have been renewed.
Story written after first verdict:
Dismissed teacher wins $1 million lawsuit
By The Associated Press
http://www.firstamendmentcenter.org/news.aspx?id=4437
11.19.01
PORTLAND, Ore. — A physical education teacher who worked with severely disabled students was awarded more than $1 million Nov. 16 by a federal jury that found she was unfairly dismissed.
Pamella E. Settlegood alleged in the lawsuit, filed in Portland’s U.S. District Court, that her contract was not renewed last year because she accused the Portland Public School District of not complying with federal laws that protect the rights of disabled students.
Jurors on Nov. 16 awarded Settlegood $902,000 from the school district and $50,000 each from two district administrators.
District spokesman Lew Frederick said the district disagrees with the verdict and is considering its legal options. Maureen Sloane, the school district’s lawyer, could not be reached for comment.
Settlegood worked with disabled students at six Portland-area schools from September 1998 to June 2000 on a probationary basis. The district cited incompetence when it did not renew her contract in March 2000, said her lawyer, Greg Kafoury.
Kafoury said his client had told supervisors disabled students weren’t treated the same as nondisabled students. Federal law says school districts must provide equal equipment and education to disabled and nondisabled students, no matter the difficulty or expense.
“It was very unsettling. I saw kids having to use freight elevators. I saw kids getting only one day of physical education a week when the other kids were getting five,” Settlegood said. “Our kids got broken-down leftovers.”
Settlegood eventually told district administrator Susan Winthrop about her concerns, she said. As supervisor for orthopedic services for Portland Public Schools, Winthrop investigated Settlegood’s allegations for nearly a year and did nothing, Settlegood said.
Settlegood “wrote to these administrators saying, ‘We are in violation of federal law, and no one seems to be doing anything about it,’ ” said Kafoury.
Winthrop on Nov. 16 referred questions to Sloane, the district’s attorney.
Settlegood then went to Robert Crebo, who was director of special education services for the district, with her concerns.
Settlegood said once she contacted Crebo, the district began taking away her responsibilities at certain schools and ordered her not to volunteer for a reading program during her lunch hour. She learned in March 2000 that her contract with the district would not be renewed.
Settlegood is currently unemployed, though she was a visiting professor at Linfield College in McMinnville last year.
She said last week’s verdict — even if it is appealed — can bring change to the Portland schools.
“I feel renewed as an educator,” she said. “This has restored my faith in how important the First Amendment is ... that people do believe in teachers and our duty to our students.”
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