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No whistleblower ‘carve-out’: Assistant principal’s disagreement over student discipline not constitutionally protected speech

By Marjorie Johnson, J.D.

Her speech fell within her official duties, which included administering discipline. The appeals court again refused to recognize a “whistleblower carve-out” to this Garcetti principle.

An assistant principal who claimed she was forced to resign after she voiced opposition to the superintendent’s decision to allow an adult student to possess cigarettes at school failed to revive her First Amendment and due process claims against him and the school district. Affirming dismissal on summary judgment, the Seventh Circuit held that her speech was unprotected since she indisputedly spoke about the discipline issue in her capacity as an employee, noting that the circuit court had squarely refused to recognize a “whistleblower carve-out.” She also couldn’t show that she was deprived of her property interest in her job without due process since the record did not suggest that her resignation was involuntary (Ulrey v. Reichhart, October 18, 2019, Hamilton, D.).

Disagreement on student discipline. In August, the superintendent made the decision to allow an adult student permission to possess (but not smoke) cigarettes on school grounds. The assistant principal disagreed with his decision and without alerting him first, voiced her concerns to the school board’s president, who in turn emailed the superintendent about the matter. Upset that she had gone over his head, the superintendent threatened to reprimand her if she did not apologize. She complied, but claimed he nevertheless forced her to resign three months later.

Errors in licensing. In late October, the superintendent alerted staff of potential errors on teaching licenses and stressed the serious nature of licensing defects. When the assistant principal logged on to a state website to check her own license, she discovered an error related to her eligibility to hold an administrative license which was required for her position. She promptly notified her superiors, including the superintendent.

Asked to resign. That same day, her superiors called the education department and were advised by a state official that the error could be resolved. However, after the superintendent was unable to find her corrected license online on October 31, he berated the assistant principal for the error and implied that he did not believe it had been an honest mistake. On November 4, he told her he could not “get past” the licensing situation. “Baffled,” she asked if he was asking for her resignation. He replied that he was and handed her a letter of resignation he had already prepared for her, which she signed. That same night, the school board approved her resignation.

Unprotected employee speech. The assistant principal undisputedly spoke to the school board president as an employee and not a private citizen, and thus her speech was not protected. Even if the superintendent violated school district policy by making an exception allowing an adult student to possess cigarettes when he attended school, the assistant principal’s speech fell within her official duties, which included to “coordinate and administer student attendance and discipline policies.” As such, her objections were unprotected employee speech and not protected citizen speech.

No “whistleblower carve-out.” The Seventh Circuit rejected her contention that her reporting of the superintendent’s misconduct or violation of district policy on tobacco fell outside her official duties, noting that since the Supreme Court’s Garcetti decision, it had repeatedly refused to recognize a “whistleblower carve-out” from the category of unprotected employee speech. In Garcetti, the Court held that an employee’s report of governmental misconduct was unprotected speech made pursuant to his official duties and suggested that “legislative enactments” such as “whistle-blower protection laws and labor codes”—rather than the First Amendment—ought to protect employees obliged to report official misconduct as part of their job.

Following Garcetti, the Seventh Circuit held that a prison guard’s statements about supervisor misconduct was “part of what she was employed to do” and the fact that her statements “highlighted potential misconduct by prison officers” did not affect the analysis. The appeals court also applied this reasoning in several employment contexts, including a police officer reporting a coworker’s misconduct, a school principal reporting the misconduct of a district official, and a professor reporting misconduct by a dean.

No due process violation. The assistant principal also failed to revive her due-process claim. While she had a protected interest in continued employment, an employee who resigns by “voluntarily relinquishing her interest in continued employment” may not meet the “constructive discharge” or “coerced resignation” exceptions. A constructive discharge results when an employee must endure intolerable working conditions over a period of time, while a coerced resignation results from a specific threat or misrepresentation concerning future harm. Neither occurred here.

The Seventh Circuit rejected her attempt to invoke a “reasonable person” standard since for due process purposes, “there is a critical difference between a resignation and a discharge, and that difference must be protected by insisting that the exceptions for constructive discharges and coerced resignations be kept narrow.” Because she claimed that she felt coerced to resign in a specific meeting with her supervisor, and not that her employment conditions became intolerable over time, she couldn’t establish the egregious conditions necessary for a constructive discharge.

The assistant principal also failed to create a triable issue under a coerced resignation theory. The most a jury could infer was that the superintendent threatened to fire her because of the licensing errors. She claimed that she offered to resign because his “vibes” and “physical demeanor” communicated his desire to fire her, but that was not enough to treat defendants “as if they had denied her the extensive procedural protections available to her if she had wanted to contest a possible termination.”