Tuesday, June 15, 2010
Court Rejects School Board Member’s Retaliation Claim
By STEVEN M. ELLIS, Staff Writer
A Washington school district board did not violate one of its members’ First Amendment rights when it replaced him as board vice president due to his persistent criticism of the district’s superintendent, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
Writing for a three-judge panel, U.S. District Judge Larry A. Burns of the Southern District of California, sitting by designation, said that while the First Amendment generally protected former Bethel School District board member Ken Blair’s discordant speech, it did not immunize him from the political fallout of what he said.
The board’s other four members voted to remove Blair as vice president in 2007 after he criticized Superintendent Tom Siegel while explaining to a newspaper reporter—who later quoted Blair—why he had recently voted not to extend Siegel’s contract.
Blair, who was defeated in a 2009 bid for re-election to the board, was first elected in 1999. The board’s members elected its president, vice president and legislative representative, and Blair served in each position over the years.
When Siegel became the district’s superintendent in 2000, Blair became what Burns called a “relentless” critic, repeatedly impugning Siegel’s integrity and competence.
The board voted to remove Blair as vice president after his statement appeared in print, and Blair brought suit against the district and the other board members under 42 U.S.C. § 1983, alleging that he was retaliated against for exercising his First Amendment rights to free speech and petition.
U.S. District Judge Franklin D. Burgess of the Western District of Washington granted summary judgment to the defendants, finding that the board’s action didn’t prevent Blair from continuing to speak out as a board member, vote his conscience or serve his constituents. Burgess also more generally concluded that the First Amendment doesn’t shield public figures from the give-and-take of the political process, and Burns agreed on appeal.
Noting that a plaintiff alleging retaliation by a government official for speaking out must show that he engaged in constitutionally protected activity that resulted in adverse action that would chill an ordinary person from continuing to engage in such activity, and that a causal relationship between the activity and the action existed, Burns said that the “adverse action” separated Blair’s suit from a typical retaliation case.
Writing that “[t]he record makes clear that Blair’s fellow Board members wanted a vice president who shared their views,” and that Blair was removed “by a procedurally legitimate vote,” the judge said that Blair’s claim was “a rather minor indignity.”
He pointed out that Blair was unlike the “prototypical plaintiff in these cases”—such as government workers who lose their job, regulated entities stripped of business licenses by regulators, or prisoners retaliated against by prison officials—and commented that the board’s objective was more likely to install a vice president who better represented the majority, not to punish Blair.
Burns also agreed with the district court that “more is fair in electoral politics than in other contexts,” and said that the other board members also had a protected First Amendment interest in determining who best represented the majority’s view.
Judges Johnnie B. Rawlinson and Consuelo M. Callahan joined Burns in his opinion.
The case is Blair v. Bethel School District, 08-35895.
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