• School Board Member Who Was Removed from His Position as Board’s Vice President Because of His Criticism of the Superintendent Could Not State a Claim for Retaliation for Exercising His First Amendment Rights
  • November 18, 2010 | Authors: Diana D. Halpenny; Christian M. Keiner
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In Blair v. Bethel School District, (--- F.3d ----, C.A.9 (Wash.), June 14, 2010), the Ninth Circuit United States Court of Appeals considered whether a school board member stated a claim for retaliation for exercising his First Amendment rights against his fellow board members after they voted to remove him as vice president because of his criticism of the school district’s superintendent. The Ninth Circuit held the school board member could not state a claim for retaliation because “the First Amendment doesn’t shield public figures from the give-and-take of the political process.”

    Ken Blair (“Blair”) was elected to the Bethel School District School Board (“Board”) in 1999. The Board has four other elected members. Members of the Board elect a president, vice president, and legislative representative. Although Blair has served as president, vice president, and legislative representative in his years on the Board, he most recently served as vice president. Blair has been a strong critic of the superintendent since he was hired by the school district in 2000. In the superintendents first term, Blair insinuated the superintendent was defrauding the school district. Since 2005, Blair has voted against renewing the superintendent’s contract.

    The Board voted to extend the superintendent’s contract in September 2007. Blair cast the lone dissenting vote. The day after the vote Blair told a reporter that his “biggest issue with the superintendent is trust.” Blair stated, “I have too many examples to say he’s doing a good job.” These “statements to the reporter were the last straw for his fellow Board members” so they voted to remove Blair as vice president of the Board.

    Blair brought a lawsuit against the other Board members, the superintendent, and the Bethel School District (“District”) alleging that he was retaliated against for exercising his rights to free speech and petition as guaranteed by the First Amendment. A federal district court found “the Board’s action did not prevent Blair from continuing to speak out, vote his conscience, and serve the constituents” and entered judgment in favor of the Board members, the superintendent, and District.

    In order for Blair to succeed on his claim for retaliation pursuant to 42 U.S.C. § 1983, he was required to show “he engaged in constitutionally protected activity,” as a result of that activity “he was subjected to adverse action by the defendant[s] that would chill a person of ordinary firmness from continuing to engage in the protected activity,” and that there was “a substantial causal relationship between the constitutionally protected activity and the adverse action.” The Ninth Circuit noted it was uncontested that (1) the First Amendment protects the votes Blair cast as a member of the Board and his statements to the reporter, (2) the Board’s decision to remove Blair from his position as vice president arose from Blair’s advocacy against the superintendent, and (3) the Board’s members are “state actors.”

    The Ninth Circuit noted that if this were a typical retaliation case, the court “would be left to evaluate only whether the Board’s action would chill a person of ordinary firmness from continuing to speak out.” However, this is not a typical retaliation case because Blair is challenging an adverse action that was taken by his peers, fellow Board members, in the political arena. The other Board members desired a vice president who shared their views. Blair did not share those views so the Board removed him through a “procedurally legitimate vote.”

    The court noted that Blair’s case is different than an ordinary retaliation case in three important ways. First, the Ninth Circuit noted “the adverse action Blair complains of was a rather minor indignity, and de minimis deprivations of benefits and privileges on account of one’s speech do not give rise to a First Amendment claim.” The Board removed Blair from a titular position that they elected him to in the first place. The Board did not take action to punish Blair “for his advocacy but instead to put in place a vice president who better represented the majority view.” The Ninth Circuit opined that even if the Board was “playing political hardball” because of Blair’s advocacy against the superintendent, Blair’s authority as a Board member was not affected by the rest of the Board’s action.” Blair “retained the full range of rights and prerogatives that came with having been publicly elected.”

    Second, the Ninth Circuit reasoned that “more is fair in electoral politics than in other contexts.” Political bodies commonly have internal leadership structures in which members are openly partisan in voting for other members when electing them to leadership positions. The Ninth Circuit stated that “we expect political officials to cast votes in internal elections in a manner that is, technically speaking, retaliatory, i.e., to vote against candidates whose views differ from their own.” An election for an internal political leadership position “is often a referendum on the majority point of view.” The Board’s vote to remove Blair is not different from what the general public would do if they were dissatisfied with Blair’s advocacy. Free speech rights under the First Amendment would not be called into play if Blair’s constituents decided not to reelect him because of his opposition to the superintendent. The Ninth Circuit concluded that it saw “no reason the Board members’ votes here should be regulated in a way that the general public’s are not.”

    Third, the Ninth Circuit noted that “Blair isn’t the only party . . . whose interests implicate First Amendment concerns.” All of the members of the Board “have a protected interest in speaking out and voting their conscience on the important issues they confront.” Blair had the right to criticize and vote against retaining Siegel and the other Board members had the right to replace Blair with another member who represented the majority view of the Board. Accordingly, the Ninth Circuit affirmed the decision of the district court finding that the Board’s action in removing Blair from the position of vice president did not amount to retaliation against Blair in violation of the First Amendment.

    What This Means To You
    While a school board member certainly retains his or her first amendment rights to speak out on matters of public concern, actions and votes taken by his or her peers on the board that remove the speaker from a leadership position do not constitute unlawful retaliation. The Ninth Circuit in this case emphasized that the board member removed from a leadership role was an elected official as were the other board members who voted him out of the vice president position. He still retained a position on the board with voting rights. The Ninth Circuit also emphasized that the other board members have their voting rights to select members for leadership roles that represent the majority view of the board. The First Amendment protects a board members discordant speech as a general matter, “it does not however, immunize [them] from the political fallout of what he (or she) says.”