Terminations And Testimony: A Risky Mix For Schools

Written exclusively for My Community Workplace for Education

A former high school dean is suing the school district that terminated her. She alleges her termination was in retaliation for her support at a hearing of a coworker accused of sexual assault.

The dean claims it is her First Amendment right to speak on behalf of the accused and says that everything she said at the hearing was the truth. The two had worked together at a different school some years prior to the assault incident. The dean says the teacher accused of the assault had maintained a record of quality job performance during the time they worked together.

The dean is seeking to be reinstated in her job. The school board states they are not currently permitted to comment on the lawsuit. "Ex-dean who lost job over testimony sues Bedford school district" www.fosters.com (May 1, 2019).

Commentary and Checklist

Public school teachers, because they are employees of state and local government, have specific protections under the First Amendment of the U.S. Constitution.

In general, speech is protected if the teacher is speaking as a private citizen on a matter of public concern. Speech may not be protected if it is part of a teacher's duties, such as speech in the classroom. That is considered speech on behalf of the school district. And, even speech made outside the classroom might not be protected if the district can show the teacher's speech had a substantial adverse impact on school functioning or that the speech occurred in accordance with job duties.

The district may argue that the dean's involvement at the trial was required as part of her job and hence was not protected speech. The teacher will argue that her speaking the truth about a coworker accused of sexual assault was of "public concern" and made as a private citizen.

In general, it is risky to terminate anyone after he or she testifies or provide testimony.  

Terminations, for whatever reason, must be carefully considered in consultation with human resources and legal counsel. There may have been other reasons why the teacher was terminated, but because she perceived it was in retaliation for her support of a coworker, the litigation ensued.

The following suggestions can help your organization avoid the retaliation risk associated with termination like the one above.

  • Thoroughly document in the employee's personnel file any reasons you have for termination, including poor performance or misbehavior.
  • Consult with administrative leaders to confirm that the termination is in your organization's best interest and is legally motivated.
  • Always have legal counsel review the reasons for the termination and discuss the potential risks involved if you do proceed.
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