Supreme Court Declines Superintendent’s Case on Reporting Corruption

By Mark Walsh — April 20, 2020 3 min read
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The U.S. Supreme Court on Monday declined to hear the appeal of a school superintendent in New York state who alleges he was fired for reporting corruption in his new district to law enforcement as he was required to do.

Also, over the dissent of two justices, the high court also declined to hear the case of an individual who was blocked from suing the U.S. Department of Education for alleged violations of the Fair Credit Reporting Act.

The actions came on a busy day of orders and opinions for the court, which is soldiering on with its docket amid the contstraints of the coronavirus pandemic. The court has set May 11 as the date it will hear telephone arguments in Our Lady of Guadalupe School v. Morrissey-Berru (Case No. 19-267), about whether religious schools are exempt from civil rights laws for employment decisions involving lay teachers.

The denial in the New York state case involved Shimon Waronker, who was hired as the superintendent of the Hempstead Union Free School District on Long Island in 2017 to reform a district plagued by academic difficulties and corruption, court papers say.

Waronker hired investigators and a forensic accounting firm to root out corruption in the district, and he reported some findings to law enforcement. The school board placed him on administrative leave without pay in January 2018.

Waronker sued, alleging violations of his First Amendment free speech rights, 14th Amendment due-process rights, and of state whistleblower laws. He lost in a federal district court and in the U.S. Court of Appeals for the 2nd Circuit, in New York City, which both held that the superintendent’s speech about school operations was part of his official duties and thus not protected under the First Amendment.

The former superintendent’s appeal in Waronker v. Hempstead Union Free School District (No. 19-893) argued that the 2nd Circuit’s decision conflicted with a 2014 Supreme Court ruling, Lane v. Franks, which held that a public employee’s truthful testimony in court subject to a subpoena was protected speech.

“Waronker was obligated by law to expose the corruption he saw in his school district,” says the former superintendent’s brief. “If a superintendent of schools sees illegal corruption and does not report it to law enforcement, he has breached his fiduciary duty and may well be an accessory after the fact.”

The school district, in a brief urging the court not to take up the case, said that part of the superintendent’s job duties were to communicate with outside agencies, and that his communications were not like the compelled testimony at issue in Lane.

“This case is a poor vehicle to provide more general guidance on the question of when speech that exposes corruption may be protected by the First Amendment,” the district’s brief said.

The justices declined Waronker’s appeal without comment.

In Robinson v. U.S. Department of Education (No. 19-512), a Maryland man, Anthony Robinson sought to sue the federal agency under the fair credit reporting law after his signature had been forged on student loan applications, and the department allegedly refused to remove the fraudulent accounts from Robinson’s credit reports.

Two federal courts ruled that the federal government has sovereign immunity from suits under the FCRA, and Robinson appealed to the Supreme Court.

The court denied review, with a dissent by Justice Clarence Thomas that was joined by Justice Brett M. Kavanaugh.

Thomas said there was a split in authority among different federal appeals court circuits on the question, with the U.S. Court of Appeals for the 7th Circuit, in Chicago, allowing such suits. “Thus, borrowers of federal loans in Illinois, Indiana, and Wisconsin have access to a cause of action against the federal government while borrowers with the same types of loans in 14 other states are barred from suit,” he said.

Thomas said the ramifications of the split “are magnified here because the federal government’s potential liability under the FCRA is substantial. As the nation’s primary student-loan lender, it is one of the largest furnishers of credit information in the country.”

The federal government is responsible for 90 percent of student loans nationwide in a market that has tripled between 2007 and 2018, Thomas said, from $500 billion “to a staggering $1.5 trillion.”

Waiving immunity to allow FCRA suits against the federal government, even in only some circuits, “would have a significant impact on the public fisc,” Thomas said.

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