First Amendment Protects Teacher Against Retaliation for Police Report About Sexual Harassment

RCEd Commentary

Background: Eugenia Spencer was a permanent substitute teacher of seventh grade math in New York City when one of her disruptive male students began to physically harass her. Worried about her safety and the safety of other teachers, Spencer reported her concerns to her principal. When the harassment continued, she filed a report with the city police and law department. As a result of her police report, the student was arrested and found guilty of sexual harassment and abuse. 

The day after the principal James Philemy learned that Spencer had filed the police report, he and his assistant principal began a series of observations culminating in an “unsatisfactory” performance rating for the year. Spencer then sued the principals, alleging that her unsatisfactory rating was in retaliation for her sexual harassment complaints and therefore violated her First Amendment rights under the United States Constitution. The principals responded that Spencer’s speech was not protected since it was pursuant to her job duties; and even if it was, they were protected from liability by a legal concept known as “qualified immunity.” Public servants don a cloak of invincibility (immunity) from lawsuits when acting properly in their official capacity.

Issue: Were Spencer’s complaints to the police about the student protected by the First Amendment?  Were the principals entitled to qualified immunity?

Legal Principles: The First Amendment to the Constitution protects public employees when they speak as citizens about matters of public concern. But that protection disappears when they speak on personal matters or pursuant to their job duties. The doctrine of qualified immunity, the other claim, also has an exception. It protects public officials from personal liability unless their actions violate clearly established constitutional rights.

Outcome: A jury determined that Spencer’s unsatisfactory ratings were in retaliation for exercising her free speech rights. The court found that Spencer’s complaints to her principals were not protected because they were made as part of her teaching responsibilities. However, the trial judge ruled that her communications with the police concerning sexual harassment and abuse and her concerns about persistent safety and discipline issues constituted speech as a citizen. The complaints to outsiders were about “matters of political and social concern to the community” — not simply  about her teaching or personal concerns.

Even though the principals violated Spencer’s free speech rights, they might have been able to shield themselves on qualified immunity grounds if the teacher’s rights were not clearly established. But the court concluded that “the right of public employees to be free from adverse employment actions in retaliation for speech on a matter of public concern was clearly established.” Therefore, the suit could not be dismissed on those grounds. The U.S. Court of Appeals for the 2nd Circuit thus upheld the lower federal court’s decision.

Lessons for Principals and Teachers:

• Teachers are protected by the U.S. Constitution’s First Amendment when they speak as citizens about matters of public concern. However, teachers are not protected for speech that is made as part of their job duties or touch on personal matters.

• The doctrine of qualified immunity protects school officials against personal liability for violating the rights of students or teachers.  However, officials lose that immunity if they violate constitutional rights that are clearly established.

• It does not matter whether a principal knew about the clearly established right at the time or not. The law holds educators responsible for being aware of the legal entitlements of employees under the Constitution and respecting them. 

2nd U.S. Circuit Court of Appeals
Spencer v. Philemy, 540 Fed. Appx. 69 (2d Cir. 2013); 2013 U.S. Dist. LEXIS 96970.

_{Note: This information is not intended as legal advice. Federal and other court decisions can differ depending on what region of the country you live in. State laws also weigh in on certain issues. All cases are for educational purposes only, and meant to demonstrate how courts or administrative agencies have acted in specific instances as well as to provide information that can bolster the overall legal literacy of teachers and administrators. Local school attorneys can provide more detail about local law.}