Riechert v. Draud

• Decision Date: 15 April 1981
• Docket Number: Civ. A. No. 80-81.
• Citation: 511 F. Supp. 679
• Parties: Ida REICHERT and Ludlow Education Association, Plaintiffs, v. Jon E. DRAUD, Robert Taylor, Ronald Jones, Ralph Lillard, and Board of Education of Ludlow, Ky., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

511 F. Supp. 679

Ida REICHERT and Ludlow Education Association, Plaintiffs, v. Jon E. DRAUD, Robert Taylor, Ronald Jones, Ralph Lillard, and Board of Education of Ludlow, Ky., Defendants.

Civ. A. No. 80-81.

United States District Court, E. D. Kentucky, Covington Division.

April 15, 1981.

Arthur L. Brooks, Lexington, Ky., for plaintiffs.

Robert E. Ruberg, O'Hara, Ruberg, Osborne & Taylor, William Bubenzer, Covington, Ky., Philip P. Durand, Ambrose, Wilson & Grimm, Knoxville, Tenn., for defendants.

OPINION

BERTELSMAN, District Judge.

This action by a teacher, who claims that her teaching schedule was changed in retaliation for her exercise of First Amendment rights, presents the court with a constitutional issue for which there is no exact precedent.

The facts of this controversy are somewhat complex. The court tried the case for four days without a jury, and issued an oral opinion containing extremely detailed findings of fact, which, while necessary for the disposition of the particular case, would be needlessly prolix for the purposes of this opinion. Therefore, the facts will be stated here in a highly condensed fashion. So summarized, these facts are as follows:

FACTS

The plaintiff Ida Reichert is a public schoolteacher certified to teach political science, history, and English. She has taught at the Ludlow High School, the only high school in the Ludlow, Kentucky public school system, for at least 17 years, and perhaps longer. In any event she taught an elective psychology course for the 17 years, in addition to her English courses. She was not, however, certified in psychology.

For several years Mrs. Reichert has also served as President of the Ludlow Educational Association (LEA), which is a component of the Kentucky Educational Association (KEA). This association has no legal standing as a labor organization, but is a voluntary association of teachers. It does in fact negotiate with the Board of Education on various matters of interest to teachers. The Ludlow School System has between 500 and 600 students, and approximately 50 teachers are employed in the school system.

In February of 1980, an extremely heated controversy arose between LEA and certain individual member teachers on the one hand and the defendants, Ludlow Board of Education, Dr. Jon Draud, school superintendent, Robert Taylor, high school principal, and Ronald Jones and Ralph Lillard, individual board members, on the other hand.

LEA and the teachers contended that the administrators and the two named board members were using their official position in attempts to secure favoritism for their children. These charges were hotly denied, and acrimonious debate concerning them ensued at the board meetings of February, March, and April, 1980. In particular, charges were made that Jones and Lillard were personally harassing a teacher who had awarded an "F" in conduct to Lillard's daughter. Charges were also made that Jones' daughter had been permitted to participate in the preceding year's graduation ceremony, although she did not have sufficient credits and other students who had received a comparable number of credits were not permitted to do so.

Prior to the March meeting, the plaintiff, who was president of LEA, prepared and released to the press a letter summarizing LEA's side of the controversy. In order to give the reader a feel for the intensity of the hostilities, this letter is set forth in full in the margin.¹ The administration and board members were particularly upset by this letter because of the unfavorable publicity which it brought upon the school system, and because it brought Jones' family into the conflict.

On April 30, 1980, plaintiff was called into the office of defendant Taylor, high school principal, and informed that one class on her schedule for the following year was being changed from psychology to eighth-grade English. The reason given was that a reduction in the teaching staff required changes in the schedules of several teachers. This was the only course change Taylor announced for plaintiff, and the court found after hearing lengthy testimony on the matter the only one that was intended by the administration at that time, and the only one proximately resulting from plaintiff's First Amendment activity, although plaintiff also complained herein of other schedule changes that were subsequently announced.²

ISSUE PRESENTED

Therefore, the court is squarely presented with the constitutional issue: Is a single schedule change actionable if there is no reduction in rank, actual or potential loss of pay, or any formally adverse personnel action, if the change is motivated by a desire to retaliate against a public employee for exercise of First Amendment rights?

This court finds that there was no satisfactory proof that this single course change would result in a chilling effect³ on free speech among teachers in the school system, and that, therefore, there was no actionable First Amendment violation and that the complaint must be dismissed.

ANALYSIS

There is no doubt that plaintiff's representation of the members of her teachers' association at the board meetings, in the press, and in private conferences with the administrators, was protected First Amendment activity.⁴ There is also no doubt that the transfer from the psychology course was personally distressing to the plaintiff, because it was her favorite course and she had been teaching it for 17 years. The plaintiff failed to show, however, that there was anything objectively demeaning or adverse in this one schedule change.⁵

Lack of Binding Precedent

The Supreme Court of the United States has never addressed this precise issue. As far as the research of the parties herein, or that of this court, has disclosed, the closest decision of the Supreme Court is Perry v. Sindermann,⁶ where it held that "even though a person has no right to a valuable government benefit," he may not be deprived of such a benefit "on a basis that infringes his constitutionally protected interest —especially his interest in freedom of speech."

Perry was a decision which expanded the rights of public employees to sue their supervisors or the government for violation of First Amendment rights. The point the Court made in that decision was that it was not necessary that the teacher in that case have tenure in order to sue, but only that he be denied a "valuable government benefit" (in that case a denial of a grant of tenure). The decision cannot, therefore, be read as holding that a sine qua non exists for a public employee's First Amendment action, such as a showing of an actual or potential pecuniary loss.⁷ Nevertheless, the Court's use of the term "valuable government benefit" as opposed to some more comprehensive term is not without significance.

What then is the test to be employed? Is there a threshold requirement of proof of objective harm which the public employee must cross to bring an action for deprivation of First Amendment rights, or is a mere subjective detriment sufficient if it proximately results from the First Amendment activity? Without ever squarely deciding the issue, various federal appellate and district courts appear to be philosophically at variance on the question.

In Bernasconi v. Tempe Elementary School District,⁸ the court held that a retaliatory transfer to an affluent Anglo high school of a teacher, whose entire professional orientation was in teaching disadvantaged Spanish students, was actionable. The Court emphasized the invidious intent of the administration in making the transfer, and implied that, given such intent, even a subjectively detrimental personnel action would be actionable, unless perhaps it was de minimis.

In Lemons v. Morgan,⁹ the Eighth Circuit held that a transfer in a teacher's assignment without loss of pay could be actionable where the teacher alleged that it amounted to a "demotion." Because the decision turned on the pleadings, it is of little help as a precedent.

In other cases, a permanent reassignment to a different physical location of work has been held or assumed to be actionable.¹⁰ These cases also are not too helpful, because it is obvious that when a person criticizes the administration one day and is gone the next, the chilling effect on free speech would be much greater than a single course change in the schedule of a high school teacher who teaches five different classes a day.

The United States Court of Appeals for the Sixth Circuit has held that an invidiously motivated letter of reprimand placed in a teacher's file in retaliation for First Amendment activities, is actionable.¹¹ However, it is obvious that a letter of reprimand would be generally regarded as an adverse personnel action, which would involve a potential pecuniary loss. This is not true of the single course change involved here.

It is the duty of this court, then, to determine the proper resolution of the issue with which it is squarely presented, that is, whether a public employee such as the plaintiff, must meet some objective or substantial threshold requirement as a condition of bringing an action based on alleged deprivation of First Amendment rights.

Conflicting Interests Involved

The opposing thrust of potent conflicting values must be synthesized in resolving this issue.

On the one hand, the First Amendment is the fundament of our constitutional system. Without the values preserved by the First Amendment, our nation would lose its essential character. Ideally, no one should be constrained, even in the slightest degree or by a purely subjective or indirect constraint, from the full exercise of his freedom of speech, or political association.¹²

It is folk wisdom that an accumulation of straws can fracture the camel's back. There is no doubt that an ingenious administrator could with a pattern of petty personnel actions harass out of public employment subordinates critical of his performance or policies, thus...