D’Angelo v. School Bd. of Polk County, Fla., No. 06-13582 (11th Cir. Aug. 1, 2007)
The U.S. Court of Appeals for the Eleventh Circuit (AL, FL, GA) has ruled that a Florida school board did not violate a principal’s First Amendment rights to free speech, to petition the government for redress, and to freedom of association when it allegedly fired him for his efforts to convert his school to a charter school. After Michael D’Angelo had begun improving the performance of Kathleen High School in Polk County but learned the school would not receive any additional staff or funding, he and the faculty began investigating converting to a charter school. Under Florida law principals or others can apply for conversion, but conversion requires the support of at 50% of the teachers employed at the school. When the teachers voted 50-33 against the conversion, Mr. D’Angelo sought to persuade those who had supported the move to convert a part of the school to a charter. He invited interested teachers to attend a meeting, but the superintendent instructed him to call it off. About two weeks later he was terminated, although he recently had received a positive job evaluation. He filed a complaint with the Florida Department of Education (FED) claiming retaliation for seeking charter school status, which the Florida charter statute prohibits. The state upheld his termination, finding no "direct correlation" to his seeking charter school status. He then sued in federal district court, alleging retaliation for exercising his First Amendments rights. The lower court ruled, based on Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), that his speech was not protected by the First Amendment and that there was "absolutely no evidence" that the school board had violated his rights to free association and to petition the government.
The Eleventh Circuit affirmed, finding that Mr. D’Angelo had failed to satisfy Garcetti’s ruling that the First Amendment only covers a public employee’s speech addressing a matter of public concern and made in the role of a private citizen. Garcetti had shifted the threshold question established in Pickering v. Board of Educ. of Twp. High Sch. Dist. No. 205, 391 U.S. 563 (1968), from whether the employee was speaking on a matter of public concern to whether the employee was speaking in the capacity of a citizen. The appeals court agreed with the lower court that when the principal spoke on charter conversion he did so not as a citizen but in his professional capacity. Because the statute governing establishment of charter schools authorizes principals, teachers, parents and/or school advisory councils to apply for charter status, and because there was no evidence Mr. D’Angelo had acted as a parent or teacher, he necessarily was speaking in his capacity as principal. Mr. D’Angelo himself had repeatedly emphasized that he had a "professional duty" to seek charter school status for the good of his students. While a principal is not expressly assigned the duty of seeking charter school conversion, the court found Garcetti does not require that a specific task be listed in the job description in order to find the "task is within the scope of the employee’s professional duties for First Amendment purposes."
The court then found that a Petition Clause claim by a public employee is subject to same standard as a speech claim and therefore must satisfy Garcetti’s threshold question of whether the employee was petitioning as citizen rather than in an official capacity. Although a free association claim, in contrast, need not be on a matter of public concern, the Eleventh Circuit concluded that it, too, must clear the "as a citizen" threshold.
D’Angelo v. School Bd. of Polk County, Fla., No. 06-13582 (11th Cir. Aug. 1, 2007)
[Full opinion]
[Editor’s Note: In January 2007 the U.S. Court of Appeals for the Seventh Circuit ruled in Mayer v. Monroe County Cmty. Sch. Corp. that a school district did not violate a teacher’s free speech rights if it terminated her for expressing her opinion on Iraq war to her class. That decision, summarized below, has been appealed to the U.S. Supreme Court, Docket No. 06-1657.]
[NSBA School Law pages on Mayer v. Monroe County Cmty. Sch. Corp.]