Almontaser v. New York City Dep’t of Educ., No. 07-5468 (2d Cir. Mar. 20, 2008)
The U.S. Court of Appeals for the Second Circuit (CT, NY, VT) has ruled that comments made by high school interim principal in a newspaper interview did not constitute speech on a matter of public concern. The ruling affirms a lower court’s denial of the principal’s motion for a preliminary injunction ordering the New York City Department of Education (NYCDE) not to select a permanent principal until it gives her application “full and fair” consideration. When NYCDE announced a new high school, Khalil Gibran International Academy (KGIA), offering classes in Arab language and culture, Debbie Almontaser, who was key to the development of the program, was named interim principal. Some groups accused KGIA and Ms. Almontaser of being affiliated with radical Islam. One such group issued a press release claiming that she was connected to T-shirts containing the caption “Intifada NYC” that were allegedly being sold by an organization known as Arab Women Active in the Arts and Media (AWAAM). Although the evidence indicated that she was not affiliated with AWAAM, a New York Post reporter sought to interview her about the T-shirts and the organization. Eventually, Ms. Almontaser was instructed by NYCDE’s press office to submit to the interview but to avoid addressing the T-shirts. During a phone interview, with a press officer on the line, she denied any connections to AWAAM Ms. Almontaser accurately explained that the root of the word “intifada” means “shaking off,” acknowledged that the word has been associated with violence, and emphasized that she would never affiliate herself with an organization that condones violence. The press officer interjected only once during the call to emphasize that Ms. Almontaser does not believe in violence and commended her immediately after the interview. However, the Post article the next day created the impression she was defending the T-shirts and inaccurately reported her definition of intifada. The Post and other media subsequently published stories and letters to the editor characterizing the statements attributed to Ms. Almontaser as a defense of violence against Israel. Under pressure, she issued an apology drafted by NYCDE officials and resigned from her position. After her application for the position of permanent principal was rejected, she sued in federal court, alleging retaliation in violation of her First Amendment free speech rights and her Fourteenth Amendment due process rights. The district court ruled against her.
The Second Circuit began by noting that because NYCDE already had appointed another permanent principal at KGIA, Ms. Almontaser was seeking a preliminary injunction to change the status quo, rather than to maintain it. As a result, she had to “meet the more rigorous standard of demonstrating a ‘clear’ or ‘substantial’ showing of a likelihood of success on the merits.” Whether the district court had abused its discretion in denying Ms. Almontaser’s motion rested on whether the court’s decision was based on a clearly erroneous finding of fact or an error of law. While acknowledging that a public employee has a First Amendment right to speak as a citizen on a matter of public concern, the appeals court emphasized that the U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006), had clearly established that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Based on the record, the court concluded that the lower court had not abused its discretion because Ms. Almontaser’s statements “‘were manifestly made in her official capacity’ and therefore not constitutionally protected.” In addition, although her explanation of intifada fell outside the topics on which she was directed to speak, it too was made pursuant to role as principal. Having so ruled, the Second Circuit declined to address the district court’s alternative holding that even if Ms. Almontaser’s speech were protected, NYCDE was justified in rejected her application under the balancing test used to determine constitutional limitations on public employees’ speech set forth in Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563 (1968). The court also declined to address whether a public employee who is required by her employer to speak to the press as a condition of her employment may be sanctioned when her statement is, as her employer knows, inaccurately reported and then misconstrued by the press. This issue, the court found, would be “best addressed in the first instance by the district court.”
Almontaser v. New York City Dep’t of Educ., No. 07-5468 (2d Cir. Mar. 20, 2008)
[Editor’s Note: For background on district court ruling and on Garcetti, see below.]
NSBA School Law pages on Almontaser v. New York City Dep’t of Educ.