Teachers and the 1st Amendment - Part III
Part III – Educator Retaliation Claim
To begin, it’s important to note that a retaliation claim is not limited to termination and dismissal. In addition to the aforementioned actions, it is also unlawful for an employee to be punished for:
- Communicating with a manager about discrimination or harassment.
- Refusing to follow orders that would result in discrimination.
- Resisting or intervening in sexual advances.
- Requesting accommodations of a disability or religious practice.
For a teacher to be successful in a retaliation claim, they will need to first establish that their speech was protected. For more information, see Protected Speech. If they can show such speech was protected they then must show that the speech was a substantial or motivating factor in the alleged retaliatory action. Once shown, the employer must then show that the action in question would have occurred regardless of the teacher's speech.
To establish a First Amendment retaliation claim, a public employee must show that (1) his speech is protected by the First Amendment and (2) the speech was a substantial or motivating factor in the alleged retaliatory action, which, if both are proved, shifts the burden to the employer to prove that (3) the same action would have been taken even if the speech had not occurred. See Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir.2009).
Dougherty v. Sch. Dist. of Philadelphia, 772 F.3d 979, 986 (3d Cir. 2014)
For example, let's say a teacher who frequently makes a post on social media that meets the criteria of free speech is later moved to another school. The success of the claim would hinge on whether the teacher could show the move was because of his/her post as well as the degree the school can show the change in placement would have taken place regardless of those posts. If by chance, the district has no reason for the move nor has a history of making such changes then the teacher would have a stronger case. However, if the school can prove that the teacher was moved because her program was no longer offered at that school, the teacher's case may fail.
As employment law varies from state to state, it is recommended that those seeking guidance regarding a possible claim contact a licensed attorney in their state.