District Violated Aide’s First Amendment Rights, Court Rules

By Mark Walsh — September 15, 2011 2 min read
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A school district violated the First Amendment association rights of an administrative assistant who was demoted after sitting next to her boss at a school board meeting in which his job was on the line, a federal appeals court has ruled.

Kathleen Nichols was a longtime aide to Jeffrey Blanck the general counsel of the Washoe County, Nev., school district. After a dispute with the superintendent, Blanck was suspended and Nichols was transferred to a job in the district’s human-resources department. When the school board met in March 2004 to debate Blanck’s future, Nichols showed up and sat next to him, though she did not talk to her one-time boss, court papers say. Nichols says she also attended the regular board meeting because a friend of hers was receiving an award.

The school board dismissed Blanck as general counsel at the meeting. The next day, Nichols was summoned by the district’s human-resources director and told that district officials questioned her loyalty to the district because of her public show of support for Blanck. She was given a choice of keeping her human-resources job at a frozen salary or taking early retirement.

Nichols took the early retirement, but she sued the district claiming she was demoted in retaliation for exercising her First Amendment rights in associating with Blanck at the board meeting.

A federal district granted summary judgment to the school district, ruling that the district’s interest in efficiency outweighed the aide’s First Amendment rights. The district noted that Nichols had had a phone conversation with Blanck on the day he was suspended, and it feared she would likely remain loyal to him as he pursued his own wrongful-termination suit.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, reversed the district court and ruled for Nichols. (The panel first issued its 2-1 decision in June, but it issued an amended opinion in Nichols v. Dancer on Sept. 15.)

The appeals panel applied the balancing test for expression on matters of public concern from the Supreme Court’s 1968 decision in Pickering v. Board of Education of Township School District 205.

“The fact that public employers have significant leeway to regulate employee speech ... does not mean that their discretion is without bounds,” the court majority said. “While acknowledging the importance of workplace efficiency, we have never given public employers carte blanche to retaliate against employees whose conduct does not reasonably threaten to disrupt operations.”

“The record offers no support for the claim that Nichols’s contact with Blanck threatened to disrupt the district’s operations, or that Nichols was predisposed to cause problems down the road,” the court added. “The long and short of it is that Nichols is an employee caught in the crossfire between the district and her former boss. In the absence of any evidence that she was disloyal, had disrupted the office or was even reasonably likely to cause disruption in the future ... the district sanctioned her for simply showing up at a public meeting and sitting next to Blanck.”

In a short dissent, U.S. Circuit Judge Thomas M. Reavley said he saw no problem with the district moving Nichols from the legal office, where she had access to sensitive case records, to another central office position.

The revised Sept. 15 decision also notes that the full 9th Circuit court had declined the school district’s request that a larger panel of judges rehear the case.

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