Appeals Court Revives Georgia Educator’s Speech-Retaliation Suit Against District

By Mark Walsh — June 29, 2014 3 min read
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The news for teachers’ unions and their members isn’t all bad.

A federal appeals court has revived the free-speech-retaliation lawsuit filed by a Georgia educator who lost his job after making a statement critical of his district’s school board while serving as the president of the state teachers’ association.

Richard J. Hubbard, an assistant principal in the Clayton County school district, was serving as the president of the Georgia Association of Educators in 2008 when the central incident occurred. As the elected president of the state group, Hubbard followed an arrangement common in education in which the association paid his salary but he technically remained a school district employee for the purposes of insurance and retirement accrual.

In early 2008, the Clayton County district was the subject of a report by the Southern Association of Colleges and Schools, an accrediting group, that was critical of district employees and school board members. The report led to a major accreditation crisis for the district and intervention by the governor of Georgia.

On Feb. 15, 2008, court papers say, Hubbard was working the halls of the Georgia State Capitol in Atlanta when he was asked by reporters about the controversy. “If the allegations in the SACS report are true, then for the good of the children and the system, individuals on the board should step down,” Hubbard said.

In early March of that year, the Clayton County school board acted to discontinue any employee leave not specifically authorized by board policy, which affected Hubbard and three other employees. All of the “loaned” employees were informed that they were to return to their schools and receive work assignments.

Hubbard responded to his letter by resigning. But he learned that the head of the local Clayton County Education Association, who had also criticized the school board over the SACS report, was permitted to exchange his “loan” for a leave of absence.

Hubbard then sought to rescind his resignation and request a leave instead. Board members tabled his request, even though the district’s in-house lawyer had said it wouldn’t be a problem for Hubbard to rescind his resignation. A few months later, after school board members were replaced by the governor, the new board’s new counsel determined that Hubbard couldn’t return. Hubbard was rebuffed again when his term as GAE president ended and he tried to return to the district.

Hubbard sued the district, alleging retaliation for speech protected by the First Amendment. A federal district court granted summary judgment to the school district, ruling that Hubbard was speaking pursuant to his official duties as a district employee when he criticized the board, and that thus his statement was not protected speech under the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos.

In its June 27 decision in Hubbard v. Clayton County School District, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit, in Atlanta, unanimously disagreed with the lower court.

“It is clear that Hubbard’s speech in this case was not an official communication of the school district,” the appeals court said. “Rather, it is clear that Hubbard was speaking in his capacity as president of GAE.”

“Hubbard’s speech could not reasonably be attributed to the school district,” the court added. “Thus, the school district has no legitimate interest in controlling this speech. Accordingly, this rationale of Garcetti simply has no application in this case.”

The appeals court rejected the school district’s argument that as president of the statewide teachers’ group, Hubbard was in some way also representing the district. The court also noted that two other federal appeals courts have ruled that public employees speaking in their capacities as union officials were not speaking on behalf of their agencies under Garcetti.

The appeals court sent Hubbard’s suit back to the federal district court for further proceedings.

A version of this news article first appeared in The School Law Blog.