Ed Law Briefly: Assistant Principal Challenges Principal Who Ordered Negative Evaluations for African American Teachers

RCEd Commentary

Background:Christina Villavicencio had been employed by the New York City Department of Education for fifteen years and had ascended 5o probationary assistant principal at P.S. 316. Then the trouble began. In 2008, her principal, Elif Gure-Perez, ordered Villavicencio to file false job evaluations against African American teachers. Villavicencio refused. In response, Principal Gure-Perez fired her; she was also transferred to another school, and her salary was reduced.

Villavicencio filed two claims against her former principal and the city school district. First, she said her free speech right was violated under federal law 42 U.S.C. Section 1983. Second, she labeled the retaliation as a transgression of federal law 42 U.S. C. Section 1981.

Gure-Perez’s racism toward African Americans was well known. The example cited in the opinion was her choice to read the book “Old Black Joe” at the first faculty meeting in 2008. Subsequently, she told Villavicencio to provide an “unsatisfactory” rating to two African American teachers she considered old. Gure-Perez also instructed her assistant principal to use “fear” and “intimidation” to make a third African American teacher retire. After her “no” answer, Villavicencio was accused of theft, told by Gure-Perez that she had poor supervisory skills, and told she did not have “the backbone to write up teachers.” 

Issue: Should a principal be entitled to require her assistant to provide false and disparaging reports against teachers on a racial basis, and then dismiss that A.P. for refusing to follow orders?

Legal Principles: This is a case of “first impression,” meaning the federal court has not handled facts of this type before, and must interpret the law in a new way to decide who wins. First impression cases are particularly important because they establish ground rules for future instances with similar facts.

Section 1983, a federal law, protects First Amendment constitutional speech rights, among other things. Section 1981, among other things, protects individuals against a loss of contractual rights (like the assistant principalship in this case) as a result of illegal discrimination.

Outcome:  The federal court ruling was a split decision. The assistant principal won the legal right to continue her Section 1983 retaliation claim, but lost her Section 1981 assertion that her First Amendment speech rights were violated.

The court’s rationale was legalistic, and perhaps unsatisfying and potentially confusing.The assistant principal’s speech — refusing a direct order to disparage African American teachers — was part of her official duties, the United States District Court for the Eastern District ruled. Employee speech is generally within the domain of the school district, and therefore immune to an individual’s free speech challenge, like here.

The court concluded that Villavicencio's speech was made pursuant to her official state duties. “Villavicencio was not engaging in the speech as a citizen. Her speech was pursuant to her role as assistant principal and was directed only to her supervisor as part of the internal work involving the operation of the school.”

But the court chafed at the prospect of someone losing their job and suffering financially under such egregious, racially blatant circumstances.

“Villavicencio's refusal to promote racial discrimination is protected activity,” the ruling explained. “Gure-Perez ultimately succeeded in materially and adversely changing the terms and conditions of Villavicencio's employment. …The transfer to [another school], was "more disruptive than a mere inconvenience or an alteration of job responsibilities." The court added, “Villavicencio could no longer function as an assistant principal and her salary was reduced.”

Lessons for Principals and Teachers:

•  Does your evaluation procedure include a safeguard to prevent principals from using biases of any kind when reviewing teacher performance? 

•  Recognize that while work-related speech is the purview of the district, courts will likely not tolerate retaliation when that speech is a push-back against discriminatory animus. 

• Age discrimination has no role in the workplace and school leaders should be careful to keep such thinking out of deliberations.

• While it is tempting to use administrative power to retaliate against an offending employee, doing so can potentially carry legal consequences.

U.S. District Court for the Eastern District of New York;
Villavicencio v. Gure-Perez, Nos. 14-CV-0889, 14-CV-0777, 10-CV-5748 (U.S. District Court for the Eastern District of New York, Oct. 30, 2014).

_{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.}