The Principal’s Dilemma as Mock Trial: Ed Law Colleagues Please Provide Your Opinions!

The following is a hypothetical case I am using as the culminating activity in Public School Law this semester.

The Dismissal of Principal X

Principal X is principal in a local public middle school in a state that has recently adopted through legislation, articulated with greater precision in state department of education regulations, a new teacher evaluation scheme. The teacher evaluation laws and regulations now require that:

  • Any teacher who receives two sequential evaluations less than “satisfactory” shall have his/her tenure status revoked;
  • Teacher evaluations shall consist of 40 to 50% measures of student growth, where the majority shall be based on state provided metrics.
  • By regulatory decree of the State Commissioner of Education, any other measures selected by local district officials for inclusion in evaluations must be proven correlated with state approved and provided measures of student achievement growth.

Further, the state now conditions receipt of “any and all increases to state aid for local public school districts” on full compliance with statutes and regulations pertaining to teacher evaluation.

On September 20th of 2013, Principal X was provided with growth percentile data on her teachers from the prior year. Of the approximately 40 certified staff in her school, 8 received growth percentile data, two of whom achieved unsatisfactory growth percentile estimates for their students, one of whom received a second unsatisfactory rating in a row ‐Teacher Y.

In keeping with the requirement that any and all other measures used in the state approved teacher evaluations be correlated with the growth percentile measures, the principal was compelled to assign this teacher a second unsatisfactory rating, and thus compelled to revoke the tenure status of Teacher Y. She was a 10 year veteran teacher perceived by the principal and many others in the school to be one of the school’s most valuable human resources. In fact, over the past several years, the principal had relied on this teacher to take the difficult students including playing a more significant role than others in inclusion of children with disabilities in her classroom – and the teacher not only willingly, but eagerly complied.

Frustrated with the outcome of the new state teacher evaluation laws, Principal X took her case to the public and to state officials simultaneously. Without specific reference to the case in question – but via stylized example – the principal used the case of Teacher Y to illustrate how strict requirements of job action based largely on limited and problematic measures could lead to damaging decisions – decisions

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that she argued were neither in the best interest of the teachers nor the children they served, and decisions likely to negatively affect the quality of education statewide.

The principal made the case for returning discretion on issues of teacher evaluation and human resource management to local officials, including school principals. The principal’s letter led to a sympathetic uprising from community members and parents, who were quick to catch on as to which teacher was actually the basis of the principal’s hypothetical. Parents of that teacher’s students were outraged, and expressed their outrage at local board of education meetings. During this time, the local board of education maintained quiet support of the principal.

The principal had also begun to engage other principals statewide establishing a network of principals publicly proclaiming their opposition to newly adopted state teacher evaluation statutes and regulations. A web site was created, a non‐profit organization (political action organization) was formed, and the original letter of opposition to new state policies posted on the site, along with a petition for other school principals to show support for the group’s cause and/or become an official member.

State officials were less supportive and unamused by this principal’s apparent disrespect for their authority, and her “willful disobedience of existing statutes and regulations” expressed by Principal X’s stalling on submitting relevant evaluation information necessary for revocation of Teacher Y’s tenure status. Further, state officials were less than thrilled with the mounting insurrection initiated by the publicly posted letter to state officials outlining problems with the state teacher evaluation laws.

State officials released a letter to the local board of education indicating that their state aid would be frozen for the coming school year if, in fact, their rogue principal continued to stall and refuse compliance with the teacher evaluation laws. Under pressure from the board, Principal X agreed to initiate procedures that would lead to tenure revocation for Teacher Y. Instead of waiting out this process, Teacher Y chose to resign and pursue employment elsewhere.

But with mounting pressure on the local board of education from state department officials to control the growing movement among principals statewide against the teacher evaluation laws, a movement initiated by one of their most respected principals (who had received only glowing evaluations in prior years), the district board chose to dismiss Principal X, citing that the principal’s activities had distracted her from doing the job required, substantively compromised her effectiveness as a principal and significantly interfered with the ability of district officials to efficiently and effectively carry on district operations (including the uncertainty created over the district’s future state aid receipts).

Principal X is now suing the district for wrongful dismissal, arguing that the district’s dismissal is in violation of her first amendment right to express herself to the public on issues of public interest, for which she, as an informed public school employee has relevant information.

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Required Reading

Key Cases

Pickering v. Board of Education:‐1969/1967/1967_510

Connick v. Myers:‐1989/1982/1982_81_1251

Garcetti v. Ceballos:‐2009/2005/2005_04_473


EdJurist: Garcetti & Schools‐and‐schools

EdJurist: Academic Blogging & Garcetti:‐freedom­garcetti‐blogging.html

Law Reviews

Oluwole, J. O. (2007). On the Road to Garcetti: Unpick’erring Pickering and Its Progeny. Cap. UL Rev., 36, 967.

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  1. Awesome scenario. I love that it is the principal that is under attack. Too many administrators forget that they themselves are subject to these laws, not just their teachers. They are sometimes happy to apply Garcetti but freaked out when it is turned on them. But, there is clear caselaw (and a growing amount) where school administrators are terminated and lose under Garcetti. When you think about it, Garcetti is actually a tremendous weapon against school leaders, moreso than I think it is a weapon for school leaders. A school board, like this one, can pretty much potentially use anything a principal says against them.

    I’m a little hesitant to give my opinion, hoping that I do not influence any students currently in this mock trial. So, if students in Bruce’s class are reading this, please do not let this influence you and I will try to help both sides.

    As crazy as it is (because this is clearly stuff we should want our principals doing in a democracy), I do not think the principal would win the case (not having a really deep reading of the full 3rd Circuit’s application). I think it would depend a little bit on how the letter was published. If it was in a newspaper or something, I would like the principals case a bit more. But, in the end, I am not sure how a Court even gets to the First Amendment (and the public concern test) because this is pretty clearly pursuant to her official job duties. As I point out in my blog post you reference, I see Garcetti as a preliminary test. It is a gateway through which you must pass before you can get to Pickering, and a very narrow one at that. I feel that a judge would almost have to consciously ignore Garcetti (going straight to Pickering) to find for the principal in this case. That said, recently, I do feel that some judges have been doing just that (although I have not liked the rationale, or lack thereof, for this approach).

    Now, the First Amendment might not be the only play here (trying to help out both sides of this mock trial). There are other potential pathways such as a potential due process approach, whistleblowing, an arbitrary and capricious approach, a direct attack on the state Department of Education/officials, and perhaps more. The judge in this case would probably like to reach the right result (which is clearly letting this strong principal keep his/her job) but the judge is going to need a pathway to get there. So, to those on the principals side to this mock trial, your task is to give the judge a way to reach the result she wants to reach anyway.

  2. A great example, and one that, with a few tweaks, might arise in a year or two in New York. It’s too early in our teacher eval system for a required action, but we have a significant number of principals who are actively opposed to multiple elements of the state’s teacher and principal evaluation system. Holding back funds and then going after a principal for not following the law might be a back-door means to strong-arm opponents without having to deal with the fundamental inadequacies of test-based accountability. These testing issues have been wonderfully discussed on this blog already.

    I will be looking forward to future posts that offer more as this case ‘moves forward.’ As I’ve told several young folks looking for a career, go into school law and education labor law, and have a strong background in psychometrics. There are many years of litigation ahead.

  3. By all means the new rules will open up a larger legal specialty for those so inclined. Aren’t most of our law makers lawyers? This should bring in more work.

    How did the students do presenting their briefs and case before the “judge”?

  4. Sorry, I am not a lawyer….
    The “whistle blowing” approach would give justices an opening.
    From what I have read…SGP is not a valid construct when evaluating Schools(Principals) or teachers.
    This leaves an opening for those Teachers /Principles that are dismissed to sue their former employers.. The State is forcing School Districts to use a new evaluation formula that is putting the Taxpayers of those School Districts financially at risk.
    The Principal has “insider knowledge” and is informing the Public. Millions of Taxpayer dollars would be saved.

  5. You forgot to note, Bruce, that this particular Principal X had just been named the state’s High School Principal of the Year. 😉
    In terms of the legal analysis, there’s no question that a student could argue that Garcetti should never be applied to educators, citing the Court’s footnote. Depending on the jurisdiction, this may face a contrary Court of Appeals decision, though.
    Contract issues (what are the terms of the principal’s contract?) as well as possible collective bargaining terms (if in such a state) might be helpful. And, as Justin notes, there’s the possibility of notice (due process) issues — and maybe even the possibility of promissory estoppel, depending on the nature of any behind the scenes support from the board?? — but I would expect that the employment is largely at will. I would also expect the court to apply Garcetti. And I would expect the principal to lose the lawsuit.
    The good news is that Principal X would keep fighting and the state’s policy makers would eventually adopt more sane and balanced policies. Meanwhile Teacher Y moved to Finland and is now appreciated and is being treated as a professional.

    1. Thankfully, the principal who inspired this scenario is still gainfully employed, and seems to have achieved positive recognition.

      Oral arguments in our mock case were completed on Monday evening. Attorney’s for both sides were peppered with tough questions by our panel of judges. The debate certainly centered on the difficult question of what constitutes a matter of public concern and what would delineate a matter of public concern from an issue pursuant to the job duties of the principal.

      This is where Justin’s comments about my choice to make this about the principal become most interesting – because that which is pursuant to the official duties of a principal is much broader than that which might be pursuant to the duties of, say, a music teacher in the school.

      Attorneys on behalf of the district argued that one of the job duties of the principal is to be the public face of the school, to lead in the adoption and implementation of mandates. This, of course was countered with the difficult question of when, if ever, a school leader might be able to speak out publicly against policies? Does Garcetti almost always apply?

      Shooting for a win-win-win angle, the attorneys for the district pointed out (as per Justin’s explanation – they did there reading, and more) that using Garcetti as a gateway, the principal’s speech and perhaps more importantly what they characterized as her obstructive actions could only be seen as pursuant to her official duties as an educational leader charged with implementation of the mandate.

      They took their arguments a few steps further, suggesting that her actions were at best marginally different from the internal kerfuffle in the DA’s office in Connick v. Myers – that this was really just about the principal trying to protect the interests of a single favored teacher who had now been objectively classified as ineffective. In their final shot, they asserted that even if evaluated under a balancing test, considering the speech in question and potential disruption (including loss of funds) not only to the efficient operations of the school, but of the entire state system (RTTT funds in jeopardy) that the magnitude of the disruption outweighed the principal’s interest in protecting this single teacher (as they had characterized it). In their view, the yet-to-be-tested teacher evaluation law itself was the greater public interest and that allowing subversion of the law would be analogous to allowing police officers to choose when to enforce DUI laws (potentially putting at risk highway funds – noting parallel to RTTT funding) or whether school officials enforce vaccine requirements based on personal objections (creating health risks).

      I hadn’t conceived of this being the major issue in the case, but a fair amount of attention was paid to delineating between the principal’s speech (letter, blog post) and what were characterized as the principal’s foot-dragging and obstruction of the policy at the local level (even though she eventually complied).

      The justices did not seem to be completely buying the point that school leaders should follow blindly any/all state statutes, simply because they were statutes – one judge quipping that segregation had been law… was it okay to speak out about that?

      In rebuttal, attorneys for Principal X (Sheila Wright) emphasized that the state had little basis for their claim that adoption of this policy was the greater public interest and that their client was uniquely positioned to inform the public of the potential problems – the potential greater risks to the public – of moving forward with this ill-conceived policy.

      The justices will render their decision on Monday, May 6. Update at that time.

      1. Sounds like a great argument … and a fun time. Folks vastly underrate how much fun school law can be.

        I like the paragraph that starts “in rebuttal …” – if that argument was framed right (and getting that framing right would be very difficult) I think it could be a winner eventually, especially because you have the language in Garcetti opening the door for treating educators differently (thus opening a backdoor potentially). The trick there is going to be to cite a great deal of precedent that education is a huge public interest … and find that backdoor (because taking on the Supreme Court decision directly with a pure First Amendment analysis is not going to work). That’s why I would like a substantive due process case against the Board’s actions … it is a backdoor to get the right result while still acknowledging the role of the First Amendment but not directly ignoring/overruling Garcetti.

      2. Being primarily a school finance professor… I agree that school law can be much more fun.

        Certainly the most fun/interesting/valuable part of the debate in my view involved the discussion of “whose public interest?” Who defines the public interest… and who may engage actively in debate over it? Ultimately, when, if ever, is a public official charged with upholding the state’s version of the public interest, able to speak out in favor of an alternative version without fearing retribution… and where there are no clear issues of corruption or immanent physical danger involved.

      3. On the evening of May 6, the court issued its majority opinion in what became identified as the case of Principal Wright vs. Local Public School District. Following is an excerpt from the majority decision:

        In the case before us, Ms. Wright, a public employee, communicated her displeasure with the recently introduced state-adopted teacher evaluation model to both state officials and the public at large. The fact that her communications occurred simultaneously is irrelevant. The title “Principal” carries a weight that extends beyond the schoolhouse gates. Principals are responsible for the education, safety, and emotional well-being of our children, and as a result they are well-respected and must also be well-trusted. In addition to these duties, principals, more so even than teachers, are expected to be prominent and highly visible members of the communities they serve. Because Ms. Wright is a seasoned educator and administrator, she surely is aware that the title of “Principal” is not one that can be left behind at the end of the school day and that the manner in which she conducts herself, including her written and spoken communications with members of the community, is for better or worse viewed through the principal lens. Furthermore, by using the title of “Principal” in her communications with the public, the petitioner surely intended to evoke the authority, expertise, and influence associated with her position. To be sure, identifying herself as a school principal provided both standing and merit to her message, and the public would not be wrong to valorize the opinion of a principal with intimate knowledge of the evaluation system over a less authoritative “concerned citizen”.

        As this Court held in Garcetti v. Ceballos, “[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410 (2006) Because of the high visibility that is associated with her position, and because the petitioner composed, distributed, and endorsed her communications with the public as “Principal Sheila Wright”, it is this Court’s opinion that her speech was, in fact, pursuant to her duties as principal and she was not acting simply as a concerned citizen. With this in mind, the Court thereby invalidates the petitioner’s claim that Ms. Wright’s speech is protected under the hybrid status of an employee-citizen.17 See, e.g., Madison v. Wisconsin, 429 U.S. 167 (1976). In Madison v. Wisconsin, Mr. Holmquist openly addressed the school board as both a citizen and an employee. Ms. Wright, however, failed to declare her citizen status not only in her letter, but also on her website. We affirm the holdings of the lower courts that the speech in question does not pass the Garcetti test and is therefore not granted constitutional protection.17

        Of course, even if we allow the petitioner’s speech to somehow pass through the Garcetti gateway, it must then be considered under the Pickering Test. In light of the facts presented, it is apparent to this Court that the speech in question satisfies the public concern requirement established by Pickering. In her letters and on her website, Ms. Wright attempted to expose flaws that she believed existed within the evaluation framework enacted by the state and adopted by her district. The performance of teachers in a given school district is of import to all citizens of that community, including those without children or whose children are not of school age. Certainly any community – and our nation at large – benefits from a well-educated populace, and the relationship between property values within a community and the quality of its schools cannot be ignored. That community members and parents of students were quick to voice their concerns over the new evaluation system further demonstrates the public’s interest in the issue. Because the public has a vested interest in the quality of teachers employed by a school district, it follows that the public also has an interest in how those teachers are evaluated and in any flaws, real or perceived, that may exist within said system. We therefore reject the lower courts’ notion that the speech in question did not constitute a matter of public concern.

        We next consider whether the petitioner’s speech was a motivating factor in the employer’s decision to terminate Ms. Wright. We find that it was not. In the days and weeks
        following the distribution of the letter, the board of education maintained “quiet support” of the principal. Only when state funding was jeopardized due to Ms. Wright’s “willful disobedience of existing statutes and regulations” for failure to submit relevant evaluation information did the board make its decision to move forward with her dismissal. As the respondents emphasized, the principal’s insubordination prevented the state and local school district from operating efficiently by undermining the new policy and compromising annual funding.18 While the court acknowledges that teachers and principals are the driving force behind American education, inadequate funding imposes unnecessary burdens and potential damages to effective instruction. Regardless of any actual cut in state funding, the mere threat of losing state aid would place an undue burden on the school district. The jobs of many high-performing teachers would be at risk, and district leaders would be forced to make difficult budgetary decisions that would not otherwise exist. The petitioner completely overlooks this funding component, maintaining that her insubordination did not cause any disruption to the school district’s operations simply because there was no negative effect on the morale or performance of employees in her school. Is proper school funding and allocation not one of an administrator’s overarching concerns as an effective leader of a school? The principal’s managerial performance is therefore the central issue in question, as she not only failed to intervene after Ms. Smith’s first unsatisfactory rating, but also neglected to propose an alternative educational plan in the face of imminent fiscal sanction.19 As such, we find that the determining factor in the termination of Ms. Wright was not her outspoken opposition to the new teacher evaluation system, but rather her failure to comply with a state-mandated decree.

        Should the Court have instead found that Ms. Wright was dismissed as a direct result of her speech rather than her conduct, the case would nevertheless violate the third prong of the Pickering test. The petitioner maintains that the speech in question caused no disruption in the hallways or classrooms of her school building. While this may be true, the petitioner fails to recognize the true scope of the impact her actions might cause. When the balancing test is applied, it is clear to this Court that the interests of the school district outweigh the individual interests of Ms. Wright. Because the speech in question was not clearly established to be the direct cause of termination, and because the district acted in the interest of promoting the efficiency of a public service, we hold that it thereby fails to garner protection under the Pickering Test.

        If we consider the Court’s previous rulings concerning employee-speech jurisprudence, it is clear that the Court has consistently strived to “arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968); Garcetti v. Ceballos, 547 U.S. 410 (2006). While the lower courts’ rulings were predicated on two prongs of the Pickering standard, and while this Court concurs in part with those rulings, the real issue at stake is not whether the principal spoke as a citizen on a matter of public concern, but whether she was dismissed as a result of her speech or her refusal to perform her official job responsibilities. By proving that the principal was dismissed because of managerial incompetency, the Court maintains that Ms. Wright’s speech not only violates the balancing guidelines set forth in Connick v. Meyers and Garcetti v. Ceballos, but also fails to qualify for First Amendment protection under two of the three Pickering standards.


        Given the potential financial burden linked to Ms. Wright’s actions, she clearly destabilized the delicate balance between “individual and societal interests that are served when employees speak on matters of public concern and the needs of government employers attempting to perform their important public functions.” Garcetti v. Ceballos, 547 U.S. 410 (2006) While the Court does not deny that educational policy is a matter of public concern, the dismissal of one teacher is clearly a private one. The dissenting opinion may claim that issues of significant societal stake override balancing standards and guidelines, viewing our decision as an attempt to silence employee-related speech. However, the Court has consistently recognized “that public employees do not surrender all of their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410 (2006) The Court’s holding does not prevent Ms. Wright from speaking as a concerned, informed citizen, but rather as a principal pursuant to her employment duties. See, e.g., Connick v. Meyers, 461 U.S. 138 (1983).

        What would happen for instance if a veteran teacher who was highly-qualified and well respected by the entire school community decided to substitute the school’s adopted curriculum with a different instructional model which she believed to be more effective and efficient? In her view, the current curriculum was flawed and misleading, thereby hindering the progress of her students. How is this situation different from the principal’s activism against the new teacher evaluation scheme? Is the teacher not paid to deliver the instruction set forth by the school administration? If she goes “rogue,” the local district certainly has the right to dismiss her. To hold otherwise, the Court would set a dangerous precedent that equates employee-based speech protection with job titles or positions. This holding would then impose a hierarchical framework that distributes fundamental rights in a selective, discriminatory fashion. The dissenting opinion overlooks this danger; indirectly implying that the principal’s freedom of expression is superior to the rights of the teacher.


        The Court’s previous rulings have also affirmed the “necessity for informed, vibrant dialogue in a democratic society,” thereby encouraging employees to exercise their freedom of expression through the appropriate channels and forums. See, e.g., Garcetti v. Ceballos, 547 U.S. 410 (2006); San Diego v. Roe, 543 U.S. 77 (2004). As the respondents clearly demonstrated, the principal “could have followed orders and terminated the teacher first and then filed an appeal in a private, professional mode of communication.”20 Disregarding rules of conduct and loyalty, the principal neglected to exhaust all – or indeed, any – internal vectors of communication before appealing to the public. The dissent legitimizes her actions based on a per se rule proposed in the Garcetti oral arguments, which “protects employees who whistleblow only if they bypass their superiors and immediately take the information to the press.”21 In the Court’s view, the principal’s speech clearly does not warrant whistleblower protection, as the teacher evaluation scheme is neither an illegal activity, nor an instance of gross misconduct. In essence, the new state policy and the principal share the same objective: to ensure student progress and success. By transgressing appropriate channels of communication, the principal has indirectly silenced an important dialogue that could have circulated between the state and the local school board since the latter initially supported Ms. Wright’s appeal. Her insubordination indeed appears to have invalidated or discredited her claim.

        Had Ms. Wright voiced her concern in a more professional manner, this case could have culminated in education reform rather than First Amendment litigation. A contrary holding would in turn “demand permanent judicial intervention in the conduct of government operations to a degree inconsistent with sound principals of federalism and the separation of powers.” Garcetti v. Ceballos, 547 U.S. 410 (2006) The United States Supreme Court is by no means an ombuds office required to investigate personal grievances or complaints of maladministration. It has conversely been our practice to return education-based cases to state officials who are most in tune with the needs and demands of their public school system. This “displacement of managerial discretion” would not only lead to endless employee-speech litigation, but also to institutional anarchy, equipping public employees with a “carte blanche” to bypass or override their employers whenever they disagree with a given policy. Garcetti v. Ceballos, 547 U.S. 410 (2006)

        The Court would not only be mistaken to overlook the important guidelines set by Pickering, Connick, and Garcetti, it would also set a dangerous precedent of its own should it grant First Amendment protection in this case. Such a decision would provide constitutional immunity to any public employee who disagrees with his employer on an issue he deems to be of public concern as long as he first takes his grievances directly to the public. Should chains of command and internal avenues of communication only carry weight in a private setting and not with public employers? Is it not part of an employer’s duties to not only set standards for conduct and performance, but also to require compliance of its employees? Are we prepared to take away the right of a public employer to require this compliance in order to protect an employee’s right to express his disagreement with a policy? While sitting on the Supreme Court of Massachusetts, Justice Holmes observed that “[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892). Similarly, a public employee may have a constitutional right to express dissatisfaction with his employer and employer policies, but he does not have a constitutional right to his position. Let us not forget that “government offices could not function if every employment decision became a constitutional matter.” Connick v. Myers, 461 U.S. 138 (1983)

        Consider a principal who publishes a letter to the editor or creates a website advocating against state immunization requirements for all public school students because she believes that this policy should be enforced under local administrative discretion. If the principal then decided to waive this requirement for her school, or simply stall in its enforcement, is she entitled to employee-speech protection under the First Amendment, as health issues are inarguably a matter of public concern? Should we strip away the power of the principal’s employer to require compliance of its employees in order to protect the principal’s right to free speech? If so, where do we draw the line? Should the principal be permitted to publicly question any and all mandates and policies imposed by her employer? Clearly this would not only undermine the authority of the employer, but would also interfere with the employer’s ability to operate the school in a smooth and efficient manner. Ms. Wright’s resistance to comply with the new teacher evaluation scheme is analogous to this health-related hypothetical.

        The Court’s ruling does not aim to strip government employees of the right to free speech and expression, but rather to delineate the discursive boundaries between the political and the personal – the employee and the citizen. As exemplified in Garcetti v. Ceballos: “Refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.” Garcetti v. Ceballos, 547 U.S. 410 (2006).

        * * *

        For the these reasons, we affirm the Court of Appeals’ ruling and hold that the principal’s employee-based speech does not warrant First Amendment protection.

        In a decision concurring in part and dissenting in part, two justices issued the following cautions:

        The majority opinion of this court has found that Principal Wright’s speech has violated the tests created by Garcetti v Ceballos as well as Pickering v Board of Education. While it may be plausible to define her speech as “job related” or “interfering with the effectiveness of a state office” this decision must not be used to neither strengthen the rule created by Garcetti, nor weaken the liberties afforded to employees by Pickering. The court must be aware of the repercussions that will be felt within public offices due to their decision. Free speech, as afforded under the First Amendment, will be restricted to an unnecessary degree due to this decision. Public employers will seek to widen the net of job related speech that may be legally restricted under Garcetti. In addition to employers seeking to restrict speech in relation to job relatedness this decision erroneously strengthens the employer’s ability to determine the effect of which the employee’s speech has upon the office.

        The majority opinion chooses to view her citizen speech as secondary to her employee speech. This will no doubt create a slippery slope for future First Amendment cases brought before this court. To what extent must an employee go to distance themselves before voicing concerns in reference to the public office in which they are employed? Must a person relinquish their professional reputation when voicing concerns to the public? The majority has conceded that while this issue may be of public concern Ms. Wright’s employment status supersedes any possible concern. This opinion creates a precarious situation in which a person with the greatest insight into an area of public concern must speak as an uninformed citizen. Ms. Wright is an expert in her field and must be heard with the validity that her profession carries. Schools would look very different today if informed “citizen‐employees” chose not to speak out against the segregation policies once in place in public education. This caused tremendous upheaval in the efficiency of public schools for the short term however, we doubt anyone would question the effectiveness this temporary inefficiency produced long term. We now have a more efficient and effective form of public service (public education) due to the speech of well intending, highly informed citizen‐employees.

        Conceding the fact that Ms. Wright’s speech did impede on the efficiency and effectiveness of her office one must also look at the root of the disruption. “The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens.”1 Ms. Wright very well may have been insubordinate in her actions but the disruption in this case was not caused solely by her speech. Ms. Wright is a public school principal who answers ultimately to the state Department of Education. The Department of Education chose to impede the effectiveness and efficiency of their own office by restricting funds to Ms. Wright’s school. Ms. Smith, the teacher involved, had since resigned from her position thus ending the dispute of whether or not Ms. Wright would enact tenure law against her. The disruption continued due to Ms. Wright’s continued speech on the subject. The state employer then decided to “leverage the employment relationship” by enacting undue punishment on the school in order to gain the silence of Ms. Wright. It is the opinion of this dissent that the government employer overstepped a boundary in order to create a disturbance that would in turn create such a disruption to service that it would automatically serve to violate both Pickering and Garcetti. In affirming the Board of Education’s stance the court has tipped the scale in favor of the employer to further restrict the free speech rights of its employees.

        In concluding this dissent we urge future Justices to strongly question the majority decision of this court. There has been and will come again, a day when this court must put the rights and concerns of citizens above those of a government employer despite any disturbance caused an employee’s speech. The court must be vigilant in assessing the level of public concern versus the proposed effect on the public agency. Previous Justices were able to do this in reference to segregation and it is our hope that future decisions regarding employee speech concerning matters of student safety, intimidation, discrimination in any form, or any unforeseeable matter of public concern will be viewed through that lens as opposed to the one created here. Furthermore, it is our opinion that government employers be restricted from swaying the “efficiency and effectiveness” scale by creating unnecessary disruption to strengthen their case. The decision handed down by this court failed to do this and again has weakened employee First Amendment rights in doing so. In looking toward the future the aforementioned public concerns must be considered prior to rendering a decision on First Amendment rights within the workplace.

  6. It appears to me that the board & Supt. created a hostile workplace for the teacher forcing him/her to resign and then compounded the mistake by caving into the State’s political pressure and firing the principal. The board is at fault in both instances as they are the only ones that can hire and fire upon recommendation of the Supt. If they were consistent in their approach then perhaps they wouldn’t be in court. I wonder if the board is looking for a new Supt. after all this mess.

    1. Unfortunately, I don’t think the principal could successfully mount a claim of harassment against her, by the school (drawing on the hostile environment phrasing). The intent here is to point out the awkward position of the board, the superintendent, the principal and the teacher when a policy is adopted and enforced from above, but is considered by many working in the trenches to be deeply flawed. The teacher may be wrongfully classified, leaving her little recourse. The principal is obligated under law to play the henchman role for the state, under the flawed policy/metrics. The board and supt are faced with threat of loss of substantial financial aid for their district, inhibiting their ability to plan their budget for the following year, perhaps necessitating layoff notices, etc. So, it’s hard to see how the local board really isn’t just in as awkward a position as the principal. It’s all a matter of who caves first… or who fights hardest… and who wins/loses in the short… and long term.

  7. A very interesting decision, and the case bears some superficial similarities to the wide-spread opposition by school administrators in New York, organized by two Long Island principals and signed by 1539 principals and thousands of other educators and parents. One big difference is that there have been no threats to the two organizers from their superintendents or Boards of Education because these upper management folks agree with the positions, and the two districts don’t fear the loss of state aid. But it’s a bolder move for some of the other principals around the state.

    1. Indeed it is a stylized tale of the NY principals… One that has likely yet to fully run its course. Let’s hope it turns out better than this.

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