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Members of a Georgia school board that fired the district’s superintendent were immune from her lawsuit alleging that the superintendent was retaliated against for speaking out on a public
policy matter, a federal appeals court has ruled. Awanna Leslie, the fired superintendent of the Hancock County school district, had criticized the local tax commissioner for allegedly
collecting school taxes at a deficient rate. She complained at several public meetings. In the fall of 2010, however, a turnover on the Hancock County board of education occurred in all but
one seat. The new board chairwoman was the sister-in-law of the tax commissioner. Soon after, Leslie was dismissed, though the board did not provide a reason. Assistant Superintendent Bettye
Richardson, who had also spoken out against the tax commissioner, was demoted to elementary school teacher by the board. The two administrators sued under the First Amendment, arguing that
they faced retaliation for speaking out on a matter of public concern. They allege that the new board was sympathetic to the tax commissioner. The school district and the board members
sought to have the suit dismissed on three grounds: that the administrators were speaking in performance of their job duties, that they were policymaking and confidential employees and thus
a key U.S. Supreme Court balancing test for public-employee speech favored the agency, and that the board members had qualified immunity. A federal district court rejected the motion to
dismiss and held that the board members lacked immunity. In its July 12 decision in _Leslie_ v. _Hancock County Board of Education_, a three-judge panel of the U.S. Court of Appeals for the
11th Circuit, in Atlanta, ruled unanimously that the individual board members were entitled to immunity from the lawsuit. Separately, the court held that it lacked jurisdiction to decide the
school district’s appeal of the denial of its motion to dismiss. In theory, that means the administrators’ suit against the district will continue before the trial court. However, the
appeals panel’s discussion of why the board members are immune may well have gutted the heart of the suit. The appeals court held that a local school superintendent in Georgia is
categorically a policymaking or confidential employee. “Georgia law makes a local school superintendent the alter ego of the local school board,” the appeals court said. The court further
held that the board members had immunity because it was not clearly established that a government employer may be held liable for retaliation against a policymaking or confidential official
for speech about policy. “No clearly established law bars the termination of a policymaking or confidential employee for speaking about policy,” the 11th Circuit panel said. That includes
the so-called balancing test from the Supreme Court’s 1968 decision in _Pickering_ v. _Board of Education of Township School District 205_, which held that a teacher could not be dismissed
for speaking out on a matter of public concern. “Neither the [U.S.] Supreme Court, this court, nor the Supreme Court of Georgia has answered the question whether the _Pickering_ balance of
interests favors the government employer when an employee who serves in a policymaking or confidential role can be dismissed based on political affiliation or belief,” the 11th Circuit court
said. The appeals court opinion does not address what appears to be a defense raised by the school district raised under a more recent U.S. Supreme Court decision on government employee
speech. The high court’s 2006 decision in _Garcetti_ v. _Ceballos_ held that “when public employees make statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”