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Speech/Ideology as Evidence of Likely Job Performance:

Apropos Orin's post, consider whether you agree or disagree with the following excerpt from Judge Easterbrook in Wales v. Bd. of Ed., 120 F.3d 82, 85 (7th Cir. 1997):

Related Posts (on one page):

  1. Speech/Ideology as Evidence of Likely Job Performance:
  2. Should Ideology Play any Role in Hiring for DOJ Career Positions?:
The Miss Binky & Amazing Jack Show (mail) (www):
"Although . . . [the teacher's] complaints addressed a subject of general in- terest to the public, her claim still fails as a matter of law because her expression was addressed only to the personal impact of those issues on [her]. Her speech was thus intended to benefit only her personal interests in a private dispute with her employer." 42 F.3d at 409.
I think this is a pedantic example on the part of the judge, of using the law to suit one's purpose. While semantically he may be correct, his ruling has eclipsed &nullified the spirit of the law and that of the statement made by the teacher, as to it's fundamental intent.

Rulings such as these, serve only to further the chasm between those who can afford justice and those who cannot. I'm reasonably sure that I can assume, on a teacher's salary, she was not inclined to consult a lawyer before she wrote that letter. Rather, it was an emotion-driven response based on her frustration over the current circumstances. Although she was not inarticulate, unfortunately for her, she did not have a thorough understanding of legal semantics even though her intent was crystal clear.

While it may be correct to take a law student to task for being somewhat ambiguous, as it will serve to benefit him for the purposes of his profession; it is an undue burden to impose on the average Joe, who did not spend 4 years in law school, to penalize them for an unfortunately structured complaint. Had she merely re-phrased her complaint to be a little more clear on the impact the situation was having on her students, rather than implied such impact (while naturally being preoccupied with the effects the situation was having on herself), in addition to casting a wider net in regards to her target audience, she would've been validated by the courts, as evinced by the above statement.

The validity of the impetus for the letter to the supervisor &resulting actions taken to have her removed from her position were never in question as they pertain to her rights to seek a legal remedy, it was her mis-step of ambiguity which was the sole reason for denial of justice. I find that reprehensible.

It was obvious that she was fired because of her letter to her supervisor and the judge made it clear that she was not given recompense for that action because of her failure to articulate her position to a level which satisfied him.
6.16.2007 1:52pm
dearieme:
"her expression was addressed only to the personal impact of those issues on [her]. Her speech was thus intended to benefit only her personal interests"

Not so. She referred to the interests of the other pupils.
6.16.2007 2:43pm
John (mail):
I disagree strongly with the Binky comment. The teacher was saying in her letter (a) I can't teach this class under the current arrangements, and (b) here's what stinks about those arrangements. The administrators have the right, however misguided, to say the arrangements will not change. Hence, the administrators have the right to say, "in view of your inability to teach under the current arrangements, and our refusal to change the arrangements, we guess you can't teach here." Indeed, I think the teacher would have to agree with that.

Now, the teacher would have liked to have things changed in the classroom--that was the point of the letter--but that wasn't to be. Since she had no right to see that things were changed in the classroom, what is the basis of her suit? That she was punished for speech? I think it was obvious that she was only "punished" for her confessed inability to teach in the environment provided to her.

I really don't see this case as a protected vs. unprotected speech issue at all.
6.16.2007 2:47pm
whackjobbbb:
She wasn't deprived of any "speech". She spoke, and she can speak today if she'd like. She just can't draw a paycheck from that district at that school, because her employer doesn't want her to work there, presumably for "good" reasons... but even if not... so what? Should that court be about the business of intervening in a contract negotiation?
6.16.2007 2:59pm
The Miss Binky & Amazing Jack Show (mail) (www):
I agree with you John &whackjobbbb inasmuch as an employer should be able to retain immune from reprisal, the right to fire an employee if they are not up to performing the tasks as outlined in their job description. While that issue was brought up in the summary, the judge did not stop there and perhaps he should have.

When he mentioned: "Although . . . [the teacher's] complaints addressed a subject of general in- terest to the public, her claim still fails as a matter of law because her expression was addressed only to the personal impact of those issues on [her]. Her speech was thus intended to benefit only her personal interests in a private dispute with her employer." 42 F.3d at 409. he superfluously opened up another can of worms.

Why did the judge mention that at all, when they had made their case with the assertion as John says, of her "confessed inability to teach in the environment provided to her"? That right there negates the facilitation by the plaintiff, of playing the First Amendment card. Why go any further?

When the judge mentioned the above quote regarding the manner in which the letter represented more the personal impact of the complainant than the students, he implied that had she been more judicious in her letter writing, she could've won her case based on violation of First Amendment rights.

Like I've stated previously, I'm not a law student or anything of the kind. I am taking a particular interest in the law these days for personal reasons and I'm in here to get an education, so I welcome conflicts and disputes ...just be mindful of my handicap &don't chew me up and spit me out please :)
6.16.2007 4:02pm
Bill Poser (mail) (www):
Is it so clear that what the teacher was complaining about was the policy of the school district as expressed prior to her hiring? I agree that if a teacher is hired to teach in a Montessori school and then says that she can't teach in a school run the Montessori way, it is reasonable to conclude that she can't fulfill her contract and dismiss her. But there is a difference between an educational philosophy of allowing the children to choose what subject to study when and one in which the children are free to assault the teacher. At least from the excerpt, it seems to me that the teacher may be complaining about conditions that are not part of her contract, for which it is therefore not legitimate to dismiss her.
6.16.2007 4:51pm
jim:
Bill, what exactly gives an employee the right to prevent changes from occurring at the employer's institution? So things weren't exactly the same when she was hired as when her contract was up for removal. So what? Businesses do change -- and need to change -- in sometimes dramatic ways. If employees adjust, you keep them on. If they can't, you don't. They are then eligable for unemployment, but it isn't a civil rights case.
6.16.2007 5:01pm
TruePath (mail) (www):
Look we all understand intuitively the difference between firing someone as retribution for disagreeing with you and firing someone because they seem unable to carry out their job as directed in a professional manner. The test here seems pretty simple. Do you believe she would have still been fired if she had performed well in the classroom and written a dispassionate letter recommending another method of education? I don't. She was fired for the same reason someone like this wouldn't have been hired: she was a bad fit with the school's teaching method.

This has nothing to do with being rich enough to hire a lawyer. Obviously this woman was just angry and indignant about her job and sent a letter complaining about it. Common sense would have told her it might harm her employment prospects. Had she written the sort of letter that a normal person might have thought would be protected, e.g., a nice polite letter explaining why she thought another policy would be superior, it sounds like she would have been in the clear. Besides, it's not like she would have had any protection from retaliation if she worked at a private institution.

---

As an aside I'm really troubled by the idea of educating special needs children with the rest of the class. For starters I very much doubt the ability of the teachers to prevent or even notice the other children's poor treatment of special needs children. The treatment of other kids can be pretty rough even as a normal child and despite the teacher's attempts to protect them it looked like it was even worse for the special ed kids in my high school.

However, my real problem is that I suspect this policy fails a cost/benefit analysis. I tend to think that the two biggest external determiners of child's educational achievement are the level of challenge and the abilities/attitudes of their classmates. Studies show that kids in honors classes do better than those in regular classes and I suspect the difference is that the kids feel more is expected of them. My fear is that the inclusion of special needs kids in regular classes will impede the educational progress of the other children. Even if the benefit to the special needs kids is great the societal payoff for each extra unit of education for the smart/gifted children is orders or magnitude more than that for the special needs child.

Maybe I'm totally off the mark but that's my worry at least.
6.16.2007 5:05pm
Anderson (mail) (www):
I gotta say, if your attitude is "when can I start beating these little monsters," then Montessori is not where you need to be .... Amazing that someone filed a lawsuit on these facts.
6.16.2007 6:00pm
Bill Poser (mail) (www):
jim,

I'm not arguing that the employer can never change conditions, but some conditions can't reasonably be changed in the short term and some aren't ever reasonable. As an example of the latter, the teacher complains about kids being allowed to hit her. Depending on exactly what is involved here, this could easily be the kind of thing a teacher shouldn't have to put up with period, not a feature of a certain educational philosophy. As an example of the former, if a school hires a teacher to work in a Montessori classroom and then puts her in a "traditional" (strict, rote memorization etc.), those jobs are arguably sufficiently different that what the school district has done is a breach of contract. Even if it isn't, it may well be something that requires accomodation.

To make things clearer, suppose a school hires me to teach grade 12 AP calculus, then assigns me to teach music to fourth graders, for which I am totally unqualified. That's not only a dumb decision on the part of the school, but it is unfair to me. I'm entitled to a job assignment close to what I was hired for, and if they suddenly find that they can't do that, I'm entitled to compensation for their breach of contract.

Now, I agree that matters of educational philosophy and approach are often murkier than grade 12 AP calculus vs. grade 4 music. In some cases, the difference is small enough that it is reasonable to ask the teacher to make the change. In others, it isn't.
6.16.2007 6:08pm
ReaderY:
I think the school board was justified in firing the teacher. Otherwise, students would be able to argue that they had a First Amendment right not to have the content of papers considered in grading.

I generally think that the cannot-be-fired-for-speech cases have gone to far, and whether or not a person can be fired should not depend on fine distinctions or require people to hire lawyers to word letters of complaint just so
6.17.2007 12:44am
Montie (mail):

But there is a difference between an educational philosophy of allowing the children to choose what subject to study when and one in which the children are free to assault the teacher. At least from the excerpt, it seems to me that the teacher may be complaining about conditions that are not part of her contract, for which it is therefore not legitimate to dismiss her.


Bill, could the assault be seen as evidence of her inability to teach under the philosophy of the school?
6.17.2007 1:01pm
pmorem (mail):
I was listening to a radio morning show last week. The subject of conversation was "What job have you had that turned out to be much more dangerous than it sounds?". The one that came up repeatedly was "nurse in a facility for the mentally handicapped". Tales included repeated serious injuries and even some hospitalizations. Those facilities had rules that forbade basic safety measures.

It seems to me that in this case, the district changed the rules (and terms of employment) to remove basic employee safety precautions. I think she would have been better served going the OSHA route.
6.17.2007 4:39pm
ATRGeek:
I just want to note the central issue in the DOJ case is not any applicable First Amendment protections (although there may be some), but rather violations of the civil service laws. Generally, I don't think we should be confusing punishment for speech acts and the selection of people based on ideology, religion, or political affiliation.
6.17.2007 5:52pm
FantasiaWHT:
If she had written a letter along the same lines as part of her job application, would the school have been wrong in refusing to hire her?
6.18.2007 11:41am