Toward the end of the 2012-2013 school year, a Section 504 committee met to determine that an elementary student who qualified for § 504 services should be accommodated on the Texas high-stakes test via oral administration of the test. During the summer of 2013, the district’s § 504 coordinator determined that the accommodation was not necessary and “directed” that the accommodation not be given. Not pleased with this directive, the school’s principal and assistant principal reported the § 504 coordinator’s and district’s action to the Texas Education Agency. Roughly one month later, the district suspended both administrators, apparently for “misconduct” related to the high-stakes assessment. In September 2013, both administrators filed grievances regarding their suspensions, after which the assistant principal claimed that she was called into a meeting with, among others, the district’s superintendent, where she was “interrogated” about the testing issue. Both the principal and assistant followed up on their complaint with the Texas Education Agency in November 2013, and in December 2013, the superintendent recommended to the board the termination of both administrators’ contracts. The board terminated both administrators in April 2014.
The campus administrators filed suit against the district in state court, alleging violations of the Texas Whistleblower Act, and later amended their complaint to add free speech claims under the Texas and Federal Constitutions against the superintendent in his individual capacity.
The federal district court, ruling on one issue, dismissed the First Amendment retaliation claim against the superintendent on the grounds of qualified immunity, but not before finding that the plaintiffs stated a retaliation claim. The lynchpin of the plaintiffs’ retaliation claim against the superintendent was that, even though the board was the final decision-maker in the termination of the administrators’ employment contracts, the superintendent “caused the adverse employment action” by recommending their termination to the board of trustees. Acknowledging that 5th Circuit case law prior to 2015 would have supported the superintendent’s claim that he could not have caused the termination, the district court made judicial note of a 2015 5th Circuit First Amendment retaliation case where the court held that a plaintiff could establish retaliation if he/she could show “… that (an assistant district attorney’s) recommendation was made in retaliation for constitutionally protected speech and was the reason the adverse employment decision was made by the final decision-maker” (in this case the board of trustees) (internal citation omitted). Giving deference to this recent judicial development, the court held that the plaintiffs stated a claim against the superintendent for retaliation, but because the law in this area is far from clearly established, that the superintendent was entitled to dismissal on the basis of qualified immunity.
Powers v. Northside Independent Sch. Dist., 2015 U.S. Dist. LEXIS 146965 (W.D. Tex. Oct. 29, 2015).