Court Revives Suit by Educator Fired Over Letter in Support of Criminal Defendant

By Mark Walsh — July 24, 2018 3 min read
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A federal appeals court has reinstated a lawsuit filed by an Oklahoma educator who says he was dismissed after writing a letter on district letterhead supporting a reduced sentence for his nephew in a child pornography case.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled unanimously that the letter by Chester Bailey Jr., the athletic director of the Mustang, Okla., district, addressed a matter of public concern—a criminal’s sentencing.

And the court rejected the school district’s arguments that it fired Bailey over the improper use of its letterhead since it frequently allowed teachers and others to write letters of recommendation using the district’s logo and their titles.

The appeals court thus revived Bailey’s lawsuit alleging wrongful termination in retaliation for the exercise of his First Amendment rights.

Bailey had worked as athletic director at the district since 2009. In 2014, Dustin Graham, Bailey’s nephew, pleaded guilty in state court to various charges relating to video recordings he had made of women in the bathroom of his apartment without their consent. Among those charges was one count of manufacturing child pornography based on a video he recorded of a minor.

During sentencing proceedings, Bailey wrote a letter to the court on his nephew’s behalf. Because the district does not have a single form of letterhead, Bailey created his own, using the district’s logo and address and signing the letter with his name and title. Court papers say it was common for educators in the district to create such letterhead.

Bailey, in the letter, asked the judge to consider Graham’s previous good character and said that his nephew had acknowledged the wrongfulness of his actions. It isn’t clear if the letter had an effect on Graham’s initial sentence, but in 2015 Bailey sent another letter, again on the impromptu district letterhead, supporting a sentence reduction for his nephew. The second letter said that Bailey had visited Graham in prison, and that if Graham were released Bailey would be “a positive role model” for him.

Graham did secure an early release.

In 2016, Sean McDaniel, the superintendent of the district, received a package from a relative of Bailey’s who was evidently upset about Graham’s early release and other family disputes, court papers say. The package alerted the superintendent to the details of Graham’s case and about one of the letters that Bailey had sent.

McDaniel confronted Bailey, expressing concern that the athletic director had used district letterhead to advocate for the early release of someone convicted of a child pornography offense. The superintendent recommended Bailey’s termination, which the school board approved.

Bailey sued the district and McDaniel on the First Amendment retaliation claim, but a federal district judge held that the content of Bailey’s letters did not comment on a matter of public concern, and it granted summary judgment to the defendants.

The 8th Circuit panel, however, in its July 24 decision in Bailey v. Independent School District No. 69, ruled largely for the athletic director.

“The proper sentencing of convicted criminals is clearly a matter of public concern,” the appeals court said, adding that such proceedings “implicate public safety, an issue of vital importance to most communities, as well as questions regarding rehabilitation, deterrence, and reintegration of people who have committed criminal acts.”

The court said that just because Bailey had a personal interest in his nephew’s sentencing did not preclude his speech from addressing a public matter.

The court rejected the district’s arguments that the use of the district letterhead suggested Bailey was speaking in an official capacity, which would allow greater regulation of his speech. It also said that the letter’s commenting on a criminal sentence for someone convicted on a child pornography charge had not caused any disruption.

The court suggested that a district might have a legitimate interest in the control of its letterhead, but it assumed based on the record that Bailey was terminated based on the content of his letters and not merely the use of the letterhead.

The court granted qualified immunity to the superintendent, ruling that it was not clearly established at the time that McDaniel moved to dismiss Bailey that a sentencing decision was a matter of public concern for First Amendment purposes. But Bailey’s suit against the district itself may now proceed.

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