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In a case titled Boggs v. Krum Indep. Sch. Dist., No. 4:17-CV-583, 2019 WL 1293851 (E.D. Tex. Mar. 21, 2019), a Texas federal court recently considered what conduct by a high school principal would rise to the level of retaliation under the First Amendment.

The student, Kelsey Boggs, had respiratory issues that caused her to miss a lot of school that resulted in a referral to truancy court.  At the truancy hearing, the principal said he would work with the family to help secure necessary course credits. Boggs, however, claimed the principal was unhelpful and that he began to retaliate against her.  It was alleged that the principal called her a liar, followed the student at school, and gave her intimidating looks. The principal also allegedly questioned whether the student could make up the credits to another faculty member, who relayed that information to Boggs.

The student sued the school district and the principal for violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act and for violations of her First Amendment rights under the U.S. Constitution.  The suit alleged that the principal retaliated against the student for raising complaints about her absences and about the principal’s conduct.

The school district and principal moved to dismiss the suit.  The court determined that the school district could not be held liable under the First Amendment, absent an unconstitutional policy, custom or practice that gave rise to a constitutional deprivation.  The principal’s actions, alone, were not enough to establish liability against the school district.

As for the retaliation claim against the principal, the court concluded that the allegations were insufficient to rise to the level of unconstitutional retaliation.  To prove retaliation, the student had to offer proof that (1) she engaged in constitutionally protected activity, (2) the principal’s actions caused her to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the principal’s alleged adverse actions were substantially motivated by the student’s exercise of constitutionally protected conduct.

The trial court concluded that the student offered no evidence of a concrete injury. Calling the student a liar, staring at her, speculating about her chances to graduate, and following her did not amount to an unconstitutional injury sufficient to proceed on her claims.  According to the Court, a “jury could not find that a person of ordinary firmness would be chilled from exercising their free speech rights based on these interactions, however immature.” The record showed, in fact, that the family continued to raise complaints even after the alleged conduct, negating a finding that the principal’s conduct would chill an ordinary person from exercising her right to free speech.  The trial court entered judgment in favor of the district and the principal on the First Amendment claims.

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