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Teacher's Union Grievance Not Protected Speech, Court Rules

A New York City teacher's grievance to his union complaining that school administrators failed to discipline a student who threw books at him was not protected speech under the First Amendment, a federal appeals court has ruled.

Thus, the teacher's lawsuit alleging retaliation, and ultimately, discharge, for his complaints was properly dismissed by a lower federal court, a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled 2-1.

David H. Weintraub, who taught 5th grade at Public School 274 in Brooklyn, alleged in court papers that a student threw a book at him. The teacher referred the student to the assistant principal, who returned him to class without disciplining him. The next day, the student again threw a book at Weintraub, he alleged, and again went undisciplined.

Weintraub alleged that because of his complaints and the grievance, school officials retaliated against him by filing unfounded negative classroom evaluations, performance reviews, and disciplinary reports, and that he was ultimately terminated.

His lawsuit against the New York City school system and various officials alleged, among other things, a violation of his First Amendment rights. He won a partial victory in a federal district court, but in its Jan. 8 opinion in Weintraub v. Board of Education of the City of New York, the 2nd Circuit panel ruled for the school system.

The majority said Weintraub's claim was controlled by the U.S. Supreme Court's 2006 decision in Garcetti v. Ceballos, which held that the First Amendment does not protect
speech made pursuant to a public employee's official duties.

"We conclude that Weintraub's grievance was pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning," said the majority opinion by U.S. Circuit Judge John M. Walker Jr.

The majority said a union grievance is not akin to the teacher's letter to a newspaper complaning about school decisions that the Supreme Court held was protected by the First Amendment in its 1968 decision in Pickering v. Board of Education of Township High School District 205.

"Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication made pursuant to an existing dispute-resolution policy established by his employer, the Board of Education." Judge Walker said.

Judge Guido Calabresi dissented, saying that while the teacher's direct complaints to his administrators about the student's book throwing would fall under the unprotected "official duties" speech outlined in Garcetti, the high court's ruling does not "compel" the union grievance to be treated that way.

"I doubt that most employers would view union activity as something that their employees do for the employer's benefit," Judge Calabresi said. "There is a distinct irony in the idea that unions, which so many employers seek to exclude from the workplace, are somehow transmuted into entities that promote the employer's mission for purposes of the First Amendment."

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