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Appeals Court Rejects D.C. Teacher's Speech-Retaliation Suit

A federal appeals court has ruled against a Washington special education teacher who contends he was dismissed in retaliation for blowing the whistle on alleged test tampering.

A panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that a school principal and the then-chancellor of the city's school system, Michelle Rhee, were entitled to immunity from the First Amendment retaliation suit filed by teacher Bruno K. Mpoy.

Mpoy became a provisional special education teacher in 2007 through the D.C. Teaching Fellows program and the New Teacher Project, court papers say. His lawsuit says his classroom was dirty and lacked textbooks, and that he was assigned teaching assistants who acted unprofessionally, sometimes inciting fights and disruption among students. 

The suit alleged that Mpoy was asked by his principal to falsify the tests of his students to show that they had made acceptable progress, which he refused to do. Soon after, he faced warning letters from the principal over purported deficiencies, the suit says. 

In June 2008, Mpoy sent an e-mail to Rhee detailing his classroom problems and the alleged actions of his principal regarding the tests. Soon after, Mpoy was informed his contract would not be renewed.

Mpoy sued the District of Columbia, the New Teacher Project, Rhee, and the principal. A federal district court in Washington allowed the suit to go forward against Rhee and the principal in their personal capacities, but the court held that Mpoy's speech, in the form of the e-mail to Rhee, was not protected under the First Amendment because it was made pursuant to his official duties. The court went on to say that even if the speech were protected, Rhee and the principal had qualified immunity from the suit.

In its July 15 decision in Mpoy v. Rhee, the D.C. Circuit court panel upheld the dismissal of the suit, but only on qualified immunity grounds for the two officials.

The panel said the key part of Mpoy's e-mail—the passage alleging test tampering—was not protected under D.C. Circuit precedent. That precedent holds that a government employee's speech reporting conduct that interferes with his job duties is not protected, even when it is made outside the normal chain of command.

The panel took note, however, of the U.S. Supreme Court's recent decision in Lane v. Franks, which held that sworn testimony outside the normal job duties of a public employee was protected under the First Amendment. (Mpoy's allegation was not made in sworn testimony.) Still, the D.C. Circuit panel said that, putting aside the issue of sworn testimony, the Supreme Court's focus on speech that was outside a public employee's "normal job duties" might require it to re-examine the circuit precedent on whistleblowing speech.

However, that didn't help Mpoy, the appeals panel said, because Rhee and the principal were still entitled to qualified immunity to the special education teacher's suit.

"The defendants could reasonably have believed that they could fire Mpoy on account of" his e-mail to Rhee, the D.C. Circuit panel said. "Even if we are wrong in concluding as a matter of law that the email reported conduct that interfered with his job responsibilities, it surely would not have been unreasonable for the defendants to believe that it did, and hence that it was lawful to fire Mpoy under" the previous circuit precedent, the court said.

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