Blair v. Bethel School District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KEN BLAIR, 

Plaintiff-Appellant,

v.

BETHEL SCHOOL DISTRICT, a

municipal corporation; TOM

SEIGEL, superintendent of Bethel

School District and in his

individual capacity and his marital

community; JANE DOE SEIGEL;

BRENDA ROGERS, president of the No. 08-35895

Bethel School District school

board and in her individual  D.C. No.

CV-08-5181-FDB

capacity and her marital

community; JOHN DOE ROGERS; OPINION

SUSAN SMITH, vice president of the

Bethel School District school

board in her individual capacity

and her marital community; JOHN

DOE SMITH; JOHN MANNING, board

member of the Bethel School

District school board in his

individual capacity and his marital

community; JANE DOE MANNING,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Franklin D. Burgess, District Judge, Presiding

Argued and Submitted

October 16, 2009—Seattle, Washington

8725

8726 BLAIR v. BETHEL SCHOOL DISTRICT

Filed June 14, 2010

Before: Johnnie B. Rawlinson and Consuelo M. Callahan,

Circuit Judges, and Larry A. Burns,* District Judge.

Opinion by Judge Burns

*The Honorable Larry Alan Burns, District Judge for the Southern Dis-

trict of California, sitting by designation.

8728 BLAIR v. BETHEL SCHOOL DISTRICT

COUNSEL

Paul A. Lindenmuth, Law Offices of Ben F. Barcus & Asso-

ciates, PLLC, Tacoma, Washington, for the plaintiff-

appellant.

William A. Coats and Daniel C. Montopoli, Vandeberg John-

son & Gandara, Tacoma, Washington, for the defendants-

appellees.

OPINION

BURNS, District Judge:

Ken Blair maintains his First Amendment rights were vio-

lated when his fellow school board members voted to remove

him as their vice president because of his relentless criticism

of the school district’s superintendent. The district court dis-

agreed, and so do we. To be sure, the First Amendment pro-

tects Blair’s discordant speech as a general matter; it does not,

however, immunize him from the political fallout of what he

says.

I

BACKGROUND

Blair has served as a publicly elected member of the Bethel

School District School Board since 1999. There are four other

Board members, who are also publicly elected. The members

of the Board elect their own president, vice president, and leg-

islative representative. Blair has served in each position over

the years, but most recently, until October 2007, he was the

Board’s vice president.

Defendant-Appellee Tom Seigel was hired as superinten-

dent of the Bethel School District in 2000. Blair has been a

BLAIR v. BETHEL SCHOOL DISTRICT 8729

persistent critic of Seigel almost from the beginning, repeat-

edly impugning his integrity and competence. There are many

examples, but one makes the point: early in Seigel’s first

term, Blair apparently insinuated to the Board and to the State

Auditor that Seigel was defrauding the school district by

requesting reimbursement for his moving expenses when in

fact Seigel had been moved by the military. Blair is appar-

ently the only Board member who is dissatisfied with Seigel,

and since 2005 he has consistently voted against renewing

Seigel’s contract.

On September 25, 2007, the Board voted 4-1 to extend Sei-

gel’s contract and raise his pay. Blair was the lone dissenter.

The next day, he explained his dissenting vote to a newspaper

reporter, who then quoted Blair in a story saying, “My biggest

issue with the superintendent is trust . . . . I have too many

examples to say he’s doing a good job.”

Blair’s statements to the reporter were the last straw for his

fellow Board members, and on October 9, 2007 they voted to

remove him as vice president. Blair then sued the Bethel

School District, Seigel, and the other Board members under

42 U.S.C. § 1983, alleging that he was retaliated against for

exercising his First Amendment rights to free speech and peti-

tion. The district court granted summary judgment for the

defendants, finding the Board’s action didn’t prevent Blair

from continuing to speak out, vote his conscience, and serve

his constituents as a member of the Board. We agree with this

finding, and with the district court’s more general conclusion

that the First Amendment doesn’t shield public figures from

the give-and-take of the political process.

II

DISCUSSION

[1] The First Amendment forbids government officials

from retaliating against individuals for speaking out. Hartman

8730 BLAIR v. BETHEL SCHOOL DISTRICT

v. Moore, 547 U.S. 250, 256 (2006); see also Gibson v.

United States, 781 F.2d 1334, 1338 (9th Cir. 1986). To

recover under § 1983 for such retaliation, a plaintiff must

prove: (1) he engaged in constitutionally protected activity;

(2) as a result, he was subjected to adverse action by the

defendant that would chill a person of ordinary firmness from

continuing to engage in the protected activity;1 and (3) there

was a substantial causal relationship between the constitution-

ally protected activity and the adverse action. See Pinard v.

Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006).

Here, it is uncontested that Blair’s votes as a Board member

and his statements to the newspaper were protected by the

First Amendment, and that Blair’s advocacy against Seigel

was the cause for the Board’s decision to remove him from

the vice president position. It is also uncontested that the

members of the Board are “state actors.”2 Were this a typical

First Amendment retaliation case, we would be left to evalu-

1

The district court held that “in order for governmental action to trigger

First Amendment scrutiny, it must carry consequences that infringe upon

protected speech.” Blair v. Bethel Sch. Dist., No. C08-5181, 2008 WL

4740159 at *3 (W.D. Wash. Oct. 24, 2008) (citation omitted). Just to be

clear, we do not require actual infringement in retaliation cases. Rather,

“[i]n a First Amendment retaliation case, an adverse . . . action is an act

that is reasonably likely to deter employees from engaging in constitution-

ally protected speech.” Coszalter v. City of Salem, 320 F.3d 968, 970 (9th

Cir. 2003) (emphasis added). Put differently, the question is whether the

alleged retaliation would “chill or silence a person of ordinary firmness”

from continuing to speak out. Mendocino Envtl. Ctr. v. Mendocino

County, 192 F.3d 1283, 1300 (9th Cir. 1999).

2

To be liable under § 1983, a government official must be “acting, pur-

porting, or pretending to act in the performance of his or her official

duties.” McDade v. West, 223 F.3d 1135, 1140 (9th Cir. 2000). Although

it is not obvious to us that the election (or demotion) of board officers is

an official duty of the Board members — in the same category, for exam-

ple, as overseeing the hiring of teachers and making curriculum decisions

— we assume the Board members were state actors because the issue is

undisputed here. See Anderson v. Warner, 451 F.3d 1063, 1068 (9th Cir.

2006) (whether an officer acts under state law turns on the nature and cir-

cumstances of his conduct).

BLAIR v. BETHEL SCHOOL DISTRICT 8731

ate only whether the Board’s action would chill a person of

ordinary firmness from continuing to speak out.

But Blair’s case is not a typical First Amendment retalia-

tion case. What’s different here is the “adverse action” Blair

is challenging was taken by his peers in the political arena.

The record makes clear that Blair’s fellow Board members

wanted a vice president who shared their views. Because Blair

didn’t, they removed him by a procedurally legitimate vote.

The peculiar context in which Blair’s case arises distinguishes

it from the ordinary retaliation case in three crucial ways.

[2] First, the adverse action Blair complains of was a rather

minor indignity, and de minimis deprivations of benefits and

privileges on account of one’s speech do not give rise to a

First Amendment claim. Rather, for adverse, retaliatory

actions to offend the First Amendment, they must be of a

nature that would stifle someone from speaking out. The most

familiar adverse actions are “exercise[s] of governmental

power” that are “regulatory, proscriptive, or compulsory in

nature” and have the effect of punishing someone for his or

her speech. Laird v. Tatum, 408 U.S. 1, 11 (1972).

The prototypical plaintiff in these cases is a government

worker who loses his job as a result of some public communi-

cation critical of the government entity for whom he works,

e.g., Pickering v. Bd. of Educ. of Township High Sch. Dist.,

391 U.S. 563, 564 (1968) (teacher dismissed by the Board of

Education after sending a letter critical of the Board to a local

newspaper), or a regulated entity that is stripped of its busi-

ness license after engaging in speech that displeases the regu-

lator, e.g., CarePartners, LLC v. Lashway, 545 F.3d 867, 871

(9th Cir. 2008) (boarding home operators engaged in lobbying

and other speech and petition activities which they alleged led

to retaliation by the regulators), or a prisoner who is retaliated

against by prison officials for filing grievances or initiating

actions in court, e.g., Bruce v. Ylst, 351 F.3d 1283, 1286 (9th

Cir. 2003) (prison officials allegedly retaliated against pris-

8732 BLAIR v. BETHEL SCHOOL DISTRICT

oner on the basis of his jailhouse lawyering activities), or citi-

zens who are allegedly targeted by law enforcement because

of their political speech activities, e.g., Mendocino Envtl. Ctr.,

192 F.3d at 1288-89 (police officers sued for engaging in con-

spiracy to falsely accuse political activists of a crime in an

effort to inhibit their political activities).

[3] Blair has little in common with these prototypical

plaintiffs. Through the ordinary functioning of the democratic

process, he was removed from a titular position on a school

board by the very people who elected him to the position in

the first place. The Board’s objective in stripping Blair of his

leadership position, ostensibly, wasn’t to punish him for his

advocacy but instead to put in place a vice president who bet-

ter represented the majority view. But even if the Board’s

intent was to play political hardball in response to Blair’s

advocacy, his authority as a member of the Board was unaf-

fected; despite his removal as Board vice president, he

retained the full range of rights and prerogatives that came

with having been publicly elected. The district court found

Blair’s removal from the Board leadership position didn’t

chill his speech, and the record supports that finding.

[4] Second, as the district court intuited, more is fair in

electoral politics than in other contexts. It is common for

political bodies to have internal leadership structures and for

members of those bodies to be openly partisan in voting for

and against one another for leadership positions. In fact, we

expect political officials to cast votes in internal elections in

a manner that is, technically speaking, retaliatory, i.e., to vote

against candidates whose views differ from their own. Indeed,

an internal political leadership election is often a referendum

on the majority point of view. Yet, to accept Blair’s argument

is to hold that the First Amendment prohibits elected officials

from voting against candidates whose speech or views they

don’t embrace.3 Experience and political reality convince us

3

Blair argues his speech deserves enhanced protection because it was

political speech that exposed corruption, mismanagement and waste

BLAIR v. BETHEL SCHOOL DISTRICT 8733

this argument goes too far; the First Amendment does not suc-

cor casualties of the regular functioning of the political process.4

To lend perspective to this point, we conceive little differ-

ence between what the Board’s internal vote against Blair

accomplished and what voters in a general public election

might do if they too were disaffected by Blair’s advocacy. In

other words, it wouldn’t have been controversial in the least

— and certainly not a violation of the First Amendment —

had Blair’s constituents refused to support his reelection on

account of his outspoken opposition to Superintendent Seigel.

We see no reason the Board members’ votes here should be

regulated in a way that the general public’s are not.

Third, it is significant that Blair isn’t the only party in this

case whose interests implicate First Amendment concerns. To

the contrary, we assume all of the Board members have a pro-

within the Bethel School District. It is true that “[p]olitical speech lies at

the core of the First Amendment’s protections.” Kaplan v. County of Los

Angeles, 894 F.2d 1076, 1079 (9th Cir. 1990). However, we have limited

the heightened protection of speech on matters of public concern to private

citizens and government employees speaking as private citizens. See, e.g.,

Posey v. Lake Pend Oreille Dist. No. 84, 546 F.3d 1121, 1123 (9th Cir.

2008) (involving a high school “security specialist” who voiced concerns

about a school district’s safety and emergency policies). No equivalent

protection has been extended to government officials engaged in the give-

and-take of politics.

4

To be very clear, we do not suggest that the retaliatory acts of elected

officials against their own can never violate the Constitution. Obviously,

they can. See Bond v. Floyd, 385 U.S. 116 (1966). In Bond, the plaintiff

had been popularly elected to the Georgia House of Representatives, but

was blocked from taking office by a vote of his peers on the trumped-up

ground he could not, in good faith, take the requisite oath of office to sup-

port the Constitution. Id. at 118. The refusal to seat Bond was retaliatory

and had the effect, deleterious to democracy, of nullifying a popular vote.

Id. at 136-37. This would be a different case had Blair’s peers somehow

managed to vote him off the Board or deprive him of authority he enjoyed

by virtue of his popular election — but they didn’t. Bond and Blair have

little more in common than the enmity of their peers.

8734 BLAIR v. BETHEL SCHOOL DISTRICT

tected interest in speaking out and voting their conscience on

the important issues they confront — issues like teachers’

pay, curriculum policy, and allocation of education resources.

The First Circuit has recognized this point explicitly: “Voting

by members of municipal boards, commissions, and authori-

ties comes within the heartland of First Amendment doctrine,

and the status of public officials’ votes as constitutionally pro-

tected speech [is] established beyond peradventure of doubt

. . . .” Stella v. Kelly, 63 F.3d 71, 75 (1st Cir. 1995). Blair

offers no rationale for why this assumption does not apply to

the Board’s vote on the seemingly less important internal

matter of who among them is best to fill certain titular, leader-

ship positions.

Here, the vote to remove Blair as Board vice president

communicated to Blair and to the public that the Board major-

ity viewed Seigel’s performance very differently from the

way Blair saw it, and wanted to distance itself from Blair’s

criticism of the superintendent. The point isn’t that the vote

against Blair was protected speech simply because it was

expressive. Almost all retaliatory actions can be said to be

expressive, including those that are manifestly unconstitu-

tional. But, while Blair certainly had a First Amendment right

to criticize Seigel and vote against his retention as superinten-

dent, his fellow Board members had the corresponding right

to replace Blair with someone who, in their view, represented

the majority view of the Board.

[5] While this is the first time our circuit has considered a

First Amendment retaliation claim that arises in the context of

the political process and public debate, both the Sixth Circuit

and the Tenth Circuit have evaluated similar claims. In Zilich

v. Longo, 34 F.3d 359, 361 (6th Cir. 1994), the defendants

were city council members who passed a resolution stating

that an outgoing council member who had been a thorn in

their side had never been qualified to hold office. The outgo-

ing member sued on the ground the resolution was retaliation

for his political opposition to the mayor. Id. at 363. The Sixth

BLAIR v. BETHEL SCHOOL DISTRICT 8735

Circuit rejected the claim, recognizing that “[v]oting on legis-

lative resolutions expressing political viewpoints may itself be

protected speech,” and concluding, “[a] legislative body does

not violate the First Amendment when some members cast

their votes in opposition to other members out of political

spite or for partisan, political, or ideological reasons.” Id.

[6] Similarly, in Phelan v. Laramie County Cmty. Coll.

Bd., 235 F.3d 1243, 1245-46 (10th Cir. 2000), a community

college board censured one of its trustees for violating an eth-

ics policy by placing a newspaper ad encouraging the public

to vote against a pending measure. The censured trustee sued,

but the Tenth Circuit held that “[i]n censuring Ms. Phelan,

Board members sought only to voice their opinion that she

violated the ethics policy and to ask that she not engage in

similar conduct in the future.” Id. at 1248.

[7] We agree with the analysis of the Sixth Circuit in Zilich

and the Tenth Circuit in Phelan. Blair’s removal from the titu-

lar position of Board vice president is, for First Amendment

purposes, analogous to the condemning resolution in Zilich

and the censure in Phelan, and those decisions support our

conclusion here. Disagreement is endemic to politics, and nat-

urally plays out in how votes are cast. While the impetus to

remove Blair as Bethel School Board vice president undoubt-

edly stemmed from his contrarian advocacy against Siegel,

the Board’s action did not amount to retaliation in violation

of the First Amendment.

III

CONCLUSION

The decision of the district court is AFFIRMED.