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Justices Decline Case on Teacher's Grievance

The U.S. Supreme Court today declined to hear the appeal of a New York City teacher who claims he was retaliated against and ultimately fired for his complaints about administrators' alleged failure to discipline students who threw books at him in class.

Lawyers for the teacher, David H. Weintraub, said the case would be a good vehicle for resolving a question regarding the First Amendment free speech rights of teachers. But the court declined without comment to hear the appeal in Weintraub v. Board of Education of New York City (Case No. 10-202). Justice Sonia Sotomayor recused herself from the case for undisclosed reasons.

According to court papers, Weintraub was a new 5th grade teacher at Public School 274 in Brooklyn in 1998 when a student threw a book at him. The teacher sent the student to the assistant principal, who returned the student to class without discipline. The next day, the student threw several more books at Weintraub, and the assistant principal again returned him to class without discipline.

After Weintraub filed a grievance with his teachers' union, his suit says he was subject to a campaign of retaliation from the assistant principal and others and was ultimately terminated. He sued the school district and various officials, claiming, among other things, that his discipline and termination based on his grievance violated his First Amendment right to speak on matters of public concern.

Both a federal district court and a panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled that a 2006 Supreme Court decision, in Garcetti v. Ceballos, barred Weintraub's work-related speech from First Amendment protection.

The 2nd Circuit said in its January 2010 decision that ''because Weintraub made his statements 'pursuant to' his official duties as a schoolteacher, he was not speaking as a citizen for First Amendment
purposes."'

Weintraub died while his appeal was pending before the 2nd Circuit, and his suit for damages is being carried on by his estate.

The estate's appeal argues that the federal courts of appeals are divided about whether the high court's Garcetti ruling, which denied First Amendment protection to work-related speech by public employees, applies to speech that is only tangentially related to the employee's official duties, such as with the filing of a union grievance.

The National Education Association filed a friend-of-the-court brief on Weintraub's side, arguing that teacher grievances are often meant to shed light on such matters of public concern as wasteful spending or discriminatory practices.

"Garcetti's reasoning cannot be extended to cases where, in the speech at issue, the employee was not tasked with delivering the government's message, but was conveying his own opinion in circumstances where he was free to do so," the NEA brief says.

The New York City school system argued in a brief opposing high court review that the case would make a poor vehicle for deciding the teacher speech issue because the facts have yet to be tried, and in any event the the teacher's grievance fell squarely in the kind of work-related speech that the Garcetti ruling said was not protected by the First Amendment.

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