Alberto Fernandez, et al v. The School Board of Miami-Dade

Filing

Opinion issued by court as to Appellants Henny Cristobol and Alberto Fernandez. Decision: Affirmed. Opinion type: Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14319
________________________
D.C. Docket No. 1:15-cv-21915-DPG

ALBERTO FERNANDEZ,
HENNY CRISTOBOL,
Plaintiffs - Appellants,
PATRICIA RAMIREZ,
Plaintiff,
versus
THE SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(August 10, 2018)

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Before MARCUS and WILSON, Circuit Judges, and HOWARD,∗ District Judge.
MARCUS, Circuit Judge:
Again today we face the question whether the speech of two public
employees of the Miami-Dade County School District is protected by the First
Amendment. Whether they spoke as private citizens or public employees and about
matters of public concern makes all the difference. Sometimes, answering these
questions is difficult, particularly as we remember that “citizens do not surrender
their First Amendment rights by accepting public employment.” Lane v. Franks,
134 S. Ct. 2369, 2374 (2014). This is not one of those cases.
Dr. Alberto Fernandez and Henny Cristobol (occasionally referred to as “the
Administrators”) served as the principal and the assistant principal of Neva King
Cooper Educational Center, a public school that specialized in educating students
with severe physical and intellectual disabilities. Determined to improve the
school’s instructional quality, Fernandez and Cristobol resolved to convert Neva
King into a charter school. They directed staff members to research charter
conversion. They held a faculty meeting, where they attempted to mobilize the
faculty’s support for their initiative. Moreover, with Cristobol’s assistance,
Fernandez urged Neva King’s Educational Excellence School Advisory Council
(“the School Advisory Council”) to pursue charter conversion. After the School
∗

Honorable Marcia Morales Howard, United States District Judge for the Middle
District of Florida, sitting by designation.
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Advisory Council agreed to hold a vote on whether to convert Neva King,
Fernandez and Cristobol began arranging the ballot process.
Upon discovering their efforts, the Miami-Dade County School Board
launched an investigation and disciplined both of them. Fernandez and Cristobol
sued in federal court, alleging that the School Board’s response to their conversion
efforts abridged their freedom of speech and association in violation of the First
Amendment. The district court concluded that their speech was not constitutionally
protected because it was uttered pursuant to and as part of their “official duties” as
public employees, and, therefore, granted summary judgment to the School Board.
We hold that D’Angelo v. School Board of Polk County, 497 F.3d 1203
(11th Cir. 2007), compels the affirmance of the district court’s judgment, and that
the Supreme Court’s most recent opinion in Lane v. Franks, 134 S. Ct. 2369
(2014), does not undermine, let alone abrogate D’Angelo’s precedential effect. At
the end of the day, the Administrators spoke not as private citizens but as the
principal and assistant principal of a public school, pursuant to their official duties,
when they undertook to convert their public school into a charter school. Under
controlling precedent, their speech was not protected by the First Amendment.

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I.
A.
In the summer of 2011, the principal and assistant principal of Neva King
became interested in converting their school into a charter school under Florida
law. The principal, Dr. Fernandez, explained that a conversion to a charter school
would yield “better programs and services to our students,” it would increase
funding from the state and federal government, and “perhaps get the private sector
involved” in the affairs of the school. Accordingly, Fernandez directed staff
members, including Cristobol, to learn more about charter conversion. The
Administrators devoted substantial time and effort to their pursuit, conducting
research, drafting budget proposals, and currying support among community
members.
On February 2, 2012, Fernandez addressed a meeting of Neva King’s
Educational Excellence School Advisory Council -- a body consisting of interested
community members, including parents, teachers, students, administrators, support
staff, and business leaders, and devoted to improving the school’s educational
performance. See Fla. Stat. § 1001.452. Fernandez recommended that the School
Advisory Council vote to apply for charter conversion. The Advisory Council
agreed, and submitted an official request to the principal to conduct a conversion
vote. Also on February 2, 2012, Fernandez held a meeting with the faculty and
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delivered a PowerPoint presentation in support of charter conversion. He invited
attorney Robin Gibson to address the faculty and answer their questions.
Fernandez and Cristobol then scheduled a date to take a vote of the school’s
parents and teachers. After convening the School Advisory Council and the
faculty, Fernandez notified his superiors on the School Board of his intention to
conduct a charter conversion vote. In response, the School Board dispatched
personnel to Neva King to monitor all meetings where conversion was discussed
and to prevent the principal from directly addressing the parents.
The conversion attempt quickly unraveled. On April 4, 2012, the School
Advisory Council sent another letter to Fernandez, this time notifying him that
“[e]ffective immediately, we are rescinding our request to apply for possible
conversion to charter status.” And on April 20, 2012, the School Board informed
Fernandez and Cristobol that they were under investigation by the School District’s
Civilian Investigative Unit based on allegations that they had exploited their
official positions to influence the vote, and that they had inappropriately devoted
school time and resources to these efforts. The School Board placed them on
alternative assignments during the pendency of the investigations, and warned
them that they were forbidden to “contact, visit, or engage in any type of
communication with staff, parents, or community members from” the school or to
“contact or engage in any type of communications with the subject of, or
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witness[es]” to the investigations. Fernandez and Cristobol’s reassignments
consisted of tedious tasks for which they were overqualified.
Not surprisingly, the investigations revealed that the Administrators had met
regularly with faculty and staff during school hours to discuss charter conversion.
The investigative reports, released on June 22 and July 13, 2012, found probable
cause to believe that Fernandez and Cristobol violated School Board policies
relating to ethical standards, staff interactions, internet use and safety, and staff
email use. The reports also included several statements from School District
officials representing that, in attempting to convert Neva King to a charter school,
the Administrators exceeded their official duties. The School Board reviewed the
probable cause findings and informed Fernandez and Cristobol that they were
subject to discipline.
B.
During the course of the investigations, Fernandez and Cristobol initiated an
administrative proceeding against the School Board with the Florida Department of
Administrative Hearings under Florida Statutes Section 1002.33(4)(a)(1). They
claimed that the reassignments and “gag orders” -- the prohibitions on interacting
with potential witnesses during the investigations -- amounted to unlawful reprisal.
See Fla. Stat. § 1002.33(4)(a) (prohibiting “unlawful reprisal,” defined as “an
action taken by a district school board or a school system employee against an
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employee who is directly or indirectly involved in a lawful application to establish
a charter school, which occurs as a direct result of that involvement, and which
results in [adverse employment action]”). A final hearing was held in early 2014,
after which a state administrative law judge concluded that the School Board
committed an unlawful reprisal against Fernandez and Cristobol. The judge also
specifically found that, in advocating charter conversion, the Administrators acted
pursuant to their official duties. He observed that the Florida Statutes obligate the
principal to arrange the vote on charter conversion, and that, when Fernandez and
Cristobol did so, they necessarily acted in their official capacities.
The Florida Department of Education adopted the administrative law judge’s
recommendation in a final order dated November 6, 2014. The Department
awarded Fernandez out-of-pocket expenses and lost employment bonuses totaling
$10,590. However, the Administrators were not reinstated to their former
positions. Thereafter, Fernandez accepted a new position within the School District
as Exceptional Education principal assigned to the Special Education Outreach
program at Ruth Owens Kruze Educational Center. Cristobol voluntarily left the
School District to become the principal of Villa Lyan Academy, a charter school.
In May 2015, Fernandez and Cristobol sued the School Board in the United
States District Court for the Southern District of Florida. They brought a single
claim under 42 U.S.C. § 1983 alleging that the School Board infringed their rights
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to freedom of speech and association by subjecting them to adverse employment
action. They sought compensatory damages, including lost wages, and
reinstatement to their former positions, among other relief. Following discovery,
the School Board moved for summary judgment.
The School Board’s central argument was that the Administrators’ pursuit of
charter conversion and their concomitant speech fell squarely within their official
duties. As a consequence, they spoke not as private citizens, but rather as public
employees, insulating their speech from the protection of the First Amendment.
The district court agreed. In attempting to convert the public school, the
Administrators spoke at their workplace, during working hours, and with the aid of
school resources. Their speech was covered by their formal job descriptions. And
insofar as some School District officials made various statements that Fernandez
and Cristobol’s conversion efforts were not part of their official responsibilities,
the court found that evidence to be immaterial, since the status of their speech was
a legal question for the court, not for School District officials, to decide. Because
Fernandez and Cristobol plainly spoke in the course of their official duties, their
speech did not enjoy First Amendment protection, and the School Board was
entitled to summary judgment.
The Administrators filed this timely appeal in our Court.

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II.
We review de novo a district court’s grant of summary judgment, applying
the same legal standards that governed the district court. Feliciano v. City of Miami
Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). Summary judgment is appropriate
when the record evidence shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law. Id. The only issue
we address today is whether the district court properly concluded that the
Administrators’ speech was not protected by the First Amendment. We hold that it
did.
A.
To determine whether a public employee may invoke the safeguards of the
First Amendment, we begin by asking whether the employee spoke as a public
employee pursuant to his official duties or as a private citizen on matters of public
concern. Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). If the employee spoke
pursuant to his official duties, then he is denied protection under the First
Amendment, thereby ending the inquiry. Id. If, however, he spoke as a private
citizen on matters of public concern, the question becomes “whether the relevant
government entity had an adequate justification for treating the employee
differently from any other member of the general public.” Id. at 418. In that event,
the Supreme Court has instructed us in Pickering v. Board of Education, 391 U.S.
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563 (1968), and its progeny that we must balance the employee’s interest in
speaking freely and openly about matters of public concern against the State’s
interest “as an employer in promoting the efficiency of the public services it
performs through its employees.” Id. at 568. The question, then, boils down to
whether the principal and assistant principal spoke pursuant to their official duties
when they spearheaded a charter conversion effort for their school.
We addressed a nearly identical question in D’Angelo v. School Board of
Polk County, 497 F.3d 1203 (11th Cir. 2007). There, Michael D’Angelo, the
principal of Kathleen High School, explored converting his school into a charter
school under Florida law. Id. at 1206. As principal, his job description included the
obligation to “provide leadership for and implement school improvement
initiatives.” Id. at 1207. During his charter conversion effort, D’Angelo attended a
seminar on charter schools, held staff meetings, and directed faculty members to
study charter schools. Id. at 1206. He also wrote to his assistant principal that,
“with the charter opportunities granted by the State of Florida, he would be remiss
in his duties as the leader of Kathleen High School if he did not explore any and all
possibilities to improve the quality of education at the school.” Id. His initiative
ultimately foundered and the school district terminated him. Id. at 1207. He
responded by filing a First Amendment retaliation claim in federal court. Id.
During trial, the district judge ruled for the School Board after the close of
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D’Angelo’s case in chief, entering judgment as a matter of law. Id. The court held
that, under Garcetti, D’Angelo’s speech was not protected by the First
Amendment. Id.
On appeal, we applied Garcetti and assessed whether D’Angelo sought
charter conversion pursuant to his official duties as the principal of Kathleen High.
Id. at 1210. Our decision hinged on two essential considerations. First, we looked
to the Florida Statutes’ description of charter conversion and observed that “[a]n
application for a conversion charter school shall be made by the district school
board, the principal, teachers, parents, and/or the school advisory council.” Id.
(quoting Fla. Stat. § 1002.33(3)(b)) (emphasis added). “Because there [was] no
evidence that D’Angelo was a parent or a teacher, his efforts to convert Kathleen
High to charter status necessarily were in his capacity as the principal of the
school.” Id. Second, we relied on D’Angelo’s admissions at trial. Id. Although he
testified that charter conversion was not one of his assigned duties, he conceded
that he explored charter conversion pursuant to his “number one duty,” which was
to “improve the quality of education” at Kathleen High. Id. Since Florida law
clarified that D’Angelo administered the conversion effort pursuant to his official
duties, and because D’Angelo effectively admitted as much at trial, we concluded
that his speech was not protected by the First Amendment and affirmed judgment
for the school board. Id.
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The factual matrix presented by D’Angelo is on all fours with this case. For
starters, Dr. Fernandez’s job description provided that he was responsible for
“providing effective education leadership” by “developing and implementing plans
that effectively utilize the personnel and material resources necessary to produce a
quality instructional program.” Similarly, Assistant Principal Cristobol’s
occupational summary listed among his official duties “[a]ssist[ing] the principal
in planning and administering the instructional program and in conducting other
activities necessary to provide quality instruction.”
Moreover, both Florida law and Fernandez’s statements fully support the
determination that he and Cristobol advocated charter conversion pursuant to their
official duties. Florida law establishes the process for effecting the conversion of a
public school to a charter school. Among other things, it enumerates who may
apply for charter conversion, expressly including the principal. Fla. Stat.
§ 1002.33. Again, the statute provides: “An application for a conversion charter
school shall be made by the district school board, the principal, teachers, parents,
and/or the school advisory council.” Id. Just as in D’Angelo, Principal Fernandez
and Assistant Principal Cristobol held numerous staff meetings, spoke to many key
players including the school faculty, and arranged for a vote on charter conversion.
And, just as in D’Angelo, the Administrators did not claim to have launched their
conversion effort as teachers or parents. See D’Angelo, 497 F.3d at 1210. Plainly,
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their “efforts to convert [Neva King] to charter status necessarily were in [their]
capacit[ies] as the principal [and assistant principal] of the school.” Id.
Moreover, Florida regulations likewise provide that, in order to initiate the
ballot process for charter conversion, “[a] district school board, the principal,
teachers, parents, and/or the school advisory council at an existing school . . . may
submit a request in writing to the school administrator to conduct a vote for
conversion. . . . The administrator shall initiate the ballot process within sixty (60)
days of the written request . . . .” Fla. Admin. Rule 6A-6.0787. In order to conduct
a vote on a charter conversion, an official request must be sent to the principal
who, in turn, is responsible for initiating the ballot process. Here, it is undisputed
that the Educational Excellence School Advisory Council sent Dr. Fernandez an
official request to conduct a charter conversion vote. Fernandez then scheduled a
vote. Under Florida law, Fernandez and Cristobol necessarily acted as
“administrator[s],” and not as private citizens, when they received the School
Advisory Council’s official request and began arranging the vote.
We add that, during the state administrative hearing, the administrative law
judge found that Fernandez and Cristobol’s pursuit of charter conversion fell
squarely within their official duties. Indeed, he concluded that the School Board’s
actions were “plainly at odds with” Florida regulations, which “obligate[d]” the
principal to oversee the charter conversion ballot process. He observed that “no
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reasonable person would expect” those duties to be executed in a private capacity.
The Florida Department of Education adopted that finding wholesale.
Further, Miami-Dade County Public Schools Policy 9150, entitled “Visitors
Invited by Other Administrators,” provides that “[s]upervisory or administrative
staff who have invited professional visitors may elect to receive the visitors whom
they have invited, as well as other visitors who may have a mutual interest or area
of competency.” At the February 2, 2012 faculty meeting, Fernandez and
Cristobol, again in the exercise of their official duties, invited attorney Robin
Gibson to speak about charter conversion. Thus, on top of Florida’s statutory and
regulatory regime, Miami-Dade School District policy suggests that the
Administrators spoke as public officials acting pursuant to their official duties
when they advocated charter conversion.
Also, just as in D’Angelo, Fernandez and Cristobol effectively conceded that
they sought charter conversion pursuant to their official duties. Thus, for example,
on February 2, 2012, Margaret Getchell, the School Advisory Council’s
Chairperson, sent a letter to Fernandez accepting his recommendation and
requesting a conversion vote. The letter read this way: “On behalf of the
Educational Excellence School Advisory Council, please accept this letter as an
official request to conduct a vote to submit an application to convert Neva King
Cooper Educational Center to a charter school . . . ” (emphasis added). When asked
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about the Advisory Council’s “official request” at the state administrative hearing,
Fernandez replied, “Yes. This is a letter that I drafted for Ms. Getchell after I
recommended to the [Advisory Council] to consider conducting a vote to submit
an application for conversion charter. And the [Advisory Council] voted
unanimously in favor of it. And the next step was for me, as the principal, to
receive the request in writing to conduct the vote, and this is such request”
(emphasis added).
The principal’s efforts did not end there; nor did his description of those
efforts. On February 10, 2012, Fernandez sent a memorandum to Associate
Superintendent Milagros R. Fornell responding to Fornell’s warnings that
Fernandez’s conversion efforts threatened to violate the School Board’s ethical
standards. Fernandez replied that he had reviewed the standards and, “[a]ccording
to Florida Statutes, the official duties of a principal can include an application for
charter status.” As principal, he was “by law allowed to make” every effort to
convert Neva King to a charter school.
Indeed, in a section of their amended complaint entitled “The Principal’s
Role in a Charter School Conversion,” the plaintiffs averred that Fernandez
exercised his statutory authority under Florida law when he pursued charter
conversion. Specifically, they alleged, after the School Advisory Council agreed to
hold a vote, Fernandez was “vested exclusively” with the responsibility to initiate
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the balloting within sixty days of the Advisory Council’s request; ensure that only
eligible voters participated; appoint an arbitrator to tally the votes; and complete
the vote at least thirty days before the charter application deadline. In fact, they
claimed that the School Board “asserted itself to dominate the [charter conversion]
process and usurp the authority granted by Florida law to the principal.” Thus, in
their own complaint, the Administrators characterized their receipt of the Advisory
Council’s request and their initiation of the ballot process as “The Principal’s Role
in a Charter School Conversion.”
Finally, at Fernandez’s deposition, the following exchange took place:
Q. Now, in your capacity as the principal, around the fall of 2011, you met
with Mrs. Ramirez and Mr. Cristobol and you asked them to research what
would be necessary to convert Neva King Cooper into a charter school; true?
[Fernandez]. I was the principal at Neva King Cooper, and at the time that I
asked them to look into the feasibility or exploring the idea, yes.
Despite some equivocation, Fernandez was asked whether, in his capacity as
principal, he met with Cristobol and directed him to research charter conversion;
Fernandez acknowledged that he did. Likewise, when asked about attorney
Gibson’s visit, Fernandez was asked:
Q. [Gibson] couldn’t come unless you allowed him to come on school
grounds?
[Fernandez]. Of course.

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Fernandez conceded that, in inviting and receiving Gibson at the February 2012
faculty meeting, he exercised his official authority pursuant to Miami-Dade County
Public Schools Policy 9150 and Florida’s statutory regime.
In short, the application of Florida law and the Administrators’ statements in
this case yields the same result as in D’Angelo. What’s more, this result is wholly
consistent with all of our Pickering caselaw, including Abdur-Rahman v. Walker,
567 F.3d 1278 (11th Cir. 2009); Alves v. Board of Regents, 804 F.3d 1149 (11th
Cir. 2015); and Moss v. City of Pembroke Pines, 782 F.3d 613 (11th Cir. 2015).
Our cases have identified, among others, these considerations as relevant in
determining whether a public employee spoke pursuant to his official duties: (1)
speaking with the objective of advancing official duties; (2) harnessing workplace
resources; (3) projecting official authority; (4) heeding official directives; and (5)
observing formal workplace hierarchies. See Abdur-Rahman, 567 F.3d at 1280,
1283–84; Alves, 804 F.3d at 1161, 1164–65; Moss, 782 F.3d at 618–20. Dr.
Fernandez and Assistant Principal Cristobol checked virtually every relevant box.
B.
Fernandez and Cristobol advance several objections. None are persuasive.
First, they claim that Lane v. Franks, 134 S. Ct. 2369 (2014), narrowed the
construction of “official duties” set forth in Garcetti, and that the application of
Lane should yield a different result today. There, a public employee, Edward Lane,
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was fired after testifying under oath before a grand jury and twice at a criminal trial
pursuant to subpoena. Id. at 2375. It was undisputed that Lane’s testimony was not
given pursuant to his official duties. Id. at 2378 n.4. The Supreme Court held that
the First Amendment protected Lane’s speech because “[t]ruthful testimony under
oath by a public employee outside the scope of his ordinary job duties is speech as
a citizen for First Amendment purposes. That is so even when the testimony relates
to his public employment or concerns information learned during that
employment.” Id. at 2378. Lane thus clarified that Garcetti divests speech of First
Amendment protection when it is uttered pursuant to a public employee’s official
duties -- not just if it merely concerns or relates to those duties. Id. at 2379.
Fernandez and Cristobol cite Lane, suggesting somehow that they did not seek
charter conversion pursuant to their official duties; rather their efforts only
concerned or related to their duties.
But Lane was a wholly different case. There, Edward Lane spoke pursuant
to an independent duty, binding all private citizens, to testify truthfully in judicial
proceedings. Id. at 2379. The fact that Lane’s testimony concerned information
acquired in his official capacity did not change the source of his obligation to
testify. Id. In sharp contrast, under Florida law, only a parent, a teacher, or a
principal may trigger the charter conversion process. A private citizen cannot. Nor
can a private citizen oversee the ballot process designed to effect the conversion.
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Florida law expressly delegates the tasks of overseeing the charter conversion
ballot process to the principal. When Dr. Fernandez and Assistant Principal
Cristobol attempted to convert Neva King Cooper Educational Center into a
charter school, and sought to arrange a vote, they invoked their official
prerogatives under Florida law.
Moreover, since Lane was decided, our cases have continued to cite and give
effect to D’Angelo’s holding. Thus, for example, Alves presented the question
whether a memorandum composed by university employees documenting their
superior’s poor leadership constituted public-employee speech beyond the
protection of the First Amendment. 804 F.3d at 1153. A panel of this Court held
that, because the employees drafted the memorandum in order to correct conduct
that interfered with their official duties, they penned it pursuant to those duties. Id.
at 1164–65. We relied almost exclusively on pre-Lane precedent, including
D’Angelo. Id. We observed that Lane did not create “a substantial shift in the law”
but rather, if anything, offered “a slight modification and a useful clarification.” Id.
at 1163. Similarly, in Moss, we addressed whether an Assistant Fire Chief for the
Pembroke Pines Fire Department spoke pursuant to his official duties when he
criticized the Department’s collective bargaining strategy. 782 F.3d at 616–17. We
held that he did and again compared the case to D’Angelo. Id. at 620 (citing

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D’Angelo, 497 F.3d at 1210). We labeled our inquiry “Garcetti Analysis” and
relied almost entirely on pre-Lane caselaw. Id. at 620–21.
Alves and Moss instruct us that, while Lane explicated some of the
boundaries of Garcetti and its progeny, it did not disrupt our pre-Lane precedent,
let alone unclench D’Angelo’s grip on this case. Lane cannot save Fernandez and
Cristobol from summary judgment.
The Administrators further urge that they did not speak pursuant to their
official duties because charter conversion was not among their “ordinary”
responsibilities. In Garcetti, the Supreme Court framed the relevant question as
being whether the speech was uttered “pursuant to the employee’s official duties.”
547 U.S. at 413. In Lane, the Supreme Court modified the phrasing slightly,
although not the substance of the question, and asked whether the employee spoke
pursuant to his “ordinary job duties.” 134 S. Ct. at 2378. Fernandez and Cristobol
lean heavily on the extensive use of the phrase “ordinary job duties” and argue that
“neither Fernandez nor Cristobol, during their many prior years of employment
with the District, had ever initiated charter school discussions [before fall 2011].”
Their argument misses the mark. In order to determine whether speech is uttered as
a private citizen or as a public employee, we ask not whether the speech itself is
made ordinarily and regularly. Rather, we inquire whether the speech falls within
an ordinary duty. It is entirely consistent with Lane to conclude that Fernandez and
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Cristobol spoke pursuant to their ordinary duties even though they had never
before attempted a charter conversion.
To illustrate the point, in Alves, the Court explained that “[w]hile the
memorandum does not bear the hallmarks of daily activity,” it was drafted “in the
course of performing -- or, more accurately, in the course of trying to perform -their ordinary roles as coordinators, psychologists, committee members, and
supervisors,” and could not “reasonably be divorced from those responsibilities.”
804 F.3d at 1164–65. We did not read Lane as requiring that the speech itself was
made frequently. The employees spoke pursuant to their ordinary duties because
they wrote the memorandum “in the course of performing [their] jobs.” Id. Our
caselaw compels the conclusion that Fernandez and Cristobol pursued charter
conversion in their official capacities as well. They too spoke pursuant to their
ordinary duties even though they had initiated a charter conversion on only one
occasion.
Fernandez and Cristobol also claim that the duty of exercising “leadership”
over Neva King cannot be characterized as “ordinary” because the term
“leadership” is too amorphous and too closely related to advocacy and other
bedrock First Amendment activity. That argument is foreclosed by D’Angelo as
well. We held that D’Angelo spoke pursuant to his official duties in part because
he sought a charter conversion in order to improve the quality of education at
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Kathleen High, which was part of his official duties; indeed it was an obligation he
described as his “number one duty.” D’Angelo, 497 F.3d at 1210. D’Angelo
claimed that those statements were related to his “moral obligations as a human
being” and not to his professional responsibilities. Id. We rejected the argument,
holding that “[a]ny reasonable reader of [D’Angelo’s emails and statements] would
understand that D’Angelo believed he was obliged to carry out his duties as the
leader of Kathleen High and pursue charter conversion.” Id.
And in Alves, we defined the scope of the university employees’ ordinary
duties as fulfilling their “roles as coordinators, psychologists, committee members,
and supervisors.” 804 F.3d at 1164. We compared the case to D’Angelo, where
D’Angelo’s “broad administrative responsibilities” rendered his speech
unprotected. Id. at 1165. The phrase “broad administrative responsibilities” was
neither nebulous nor unclear. We reaffirmed D’Angelo’s holding that, when a
public employee’s duties include “broad administrative responsibilities,” and the
employee speaks pursuant to those duties, then the speech is not protected by the
First Amendment. Id.; see also Moss, 782 F.3d at 618–19 (holding that Moss’s
speech was insulated from First Amendment protection because it fell within his
official duty to “ensure that the fire department provided the best service
possible”).

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Case: 17-14319

Date Filed: 08/10/2018

Page: 23 of 23

The long and short of it is that the principal and assistant principal of Neva
King Cooper Educational Center spearheaded this charter school conversion
pursuant to their official duties. They may not sue the School Board under the First
Amendment. We affirm.
AFFIRMED

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