Petition for Writ of Certiorari — Jeena Lee-Walker, Petitioner v. New York City Department of Education, et al.

App. 1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE

PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY

1, 2007 IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE

32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX

OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Thurgood

Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 17th day of October, two

thousand seventeen.

PRESENT: AMALYA L. KEARSE,

DEBRA ANN LIVINGSTON,

RAYMOND J. LOHIER, JR.,

Circuit Judges.

App. 2

----------------------------------------------------------JEENA LEE-WALKER,

Plaintiff-Appellant,

v.

No. 16-4164-cv

NEW YORK CITY DEPARTMENT

OF EDUCATION, FRED WALSH,

individually, STEPHEN NOONAN,

individually, CHRISTOPHER YARMY,

individually, BENNY UREANA, individually,

Defendants-Appellees.

----------------------------------------------------------FOR APPELLANT:

STEPHEN BERGSTEIN, Bergstein &

Ullrich, LLP, New Paltz, NY.

FOR APPELLEES:

JONATHAN A. POPOLOW (Jane Lori

Gordon, on the brief ), for Zachary W.

Carter, Corporation Counsel of the

City of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of New York (John

G. Koeltl, Judge). UPON DUE CONSIDERATION, it is

ORDERED, ADJUDGED, AND DECREED that the

judgment of the District Court is AFFIRMED.

Jeena Lee-Walker appeals from a judgment of the

District Court (Koeltl, J.) dismissing her claim under

42 U.S.C. § 1983 against the New York City Department of Education (“DOE”) and individual defendants

Fred Walsh, Stephen Noonan, Christopher Yarmy, and

Benny Ureana. The District Court held that Lee-Walker

App. 3

did not engage in speech protected by the First Amendment and in the alternative that the individual defendants were entitled to qualified immunity for their

actions. We assume the parties’ familiarity with the

facts and record of the prior proceedings, to which we

refer only as necessary to explain our decision to affirm.

Citing Garcetti v. Ceballos, DOE argues that the

First Amendment does not protect Lee-Walker’s speech

about the “Central Park Five” case because she did not

“speak as a citizen addressing matters of public concern.” 547 U.S. 410, 417 (2006). In Garcetti, the Supreme Court held that where an employee does not

speak as a citizen on a matter of public importance,

“the employee has no First Amendment cause of action

based on his or her employer’s reaction to the speech.”

Id. at 418. As the Court explained, “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.” Id. at 421.

Lee-Walker responds that a pre-Garcetti case involving speech by educators, Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), not Garcetti,

controls this case. Under the Hazelwood standard, we

determine whether limits on the content of school

sponsored speech are “reasonably related to legitimate

pedagogical concerns.” Id. at 273.

App. 4

We conclude that the individual defendants are

entitled to qualified immunity because their alleged

conduct “does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.” Mullenix v. Luna, 136 S. Ct. 305, 308

(2015) (quotation marks omitted). “To determine whether

a right is clearly established, we look to (1) whether

the right was defined with reasonable specificity;

(2) whether Supreme Court or court of appeals case

law supports the existence of the right in question, and

(3) whether under preexisting law a reasonable defendant would have understood that his or her acts

were unlawful.” Scott v. Fischer, 616 F.3d 100, 105 (2d

Cir. 2010). “We do not require a case directly on point,

but existing precedent must have placed the statutory

or constitutional question beyond debate.” Ashcroft v.

al-Kidd, 563 U.S. 731, 741 (2011).

Neither Garcetti nor Hazelwood clearly governs

this case. In our only decision directly addressing the

issue, we explicitly stated that “[i]t is an open question

in this Circuit whether Garcetti applies to classroom

instruction,” and we chose “not [to] resolve the issue.”

Panse v. Eastwood, 303 F. App’x 933, 934-35 (2d Cir.

2008). For that reason, there was no clearly established

law premised on Garcetti under which the defendants

would understand that Lee-Walker’s speech was protected by the First Amendment, and the defendants

could have reasonably believed that Garcetti stripped

her of those protections. Because we decide the claims

against the individual defendants on the basis of qualified immunity, we need not reach the issue of whether

App. 5

Garcetti in fact applies to speech made by educators as

a constitutional matter. See Pearson v. Callahan, 555

U.S. 223, 236 (2009). Nor is it clear how, if at all, Garcetti displaces Hazelwood or our decision in Silano v.

Sag Harbor Union Free School District Board of Education, 42 F.3d 719 (2d Cir. 1994), on which Lee-Walker

also relies, in the context of speech by a public school

teacher. Hazelwood, after all, resolved the very different question whether school officials could restrict student contributions to a school-sponsored newspaper,

even without threat of imminent disruption. And in

Silano we applied the Hazelwood standard in the case

of a guest lecturer at a public high school and concluded that the school had legitimate pedagogical reasons for restricting the speech at issue. 42 F.3d at 723.

For these reasons we agree with the District Court’s

dismissal of the claim against the individual defendants on qualified immunity grounds.

Because qualified immunity is available only to individuals sued for damages in their individual capacity, Soto v. Gaudett, 862 F.3d 148, 162 (2d Cir. 2017), it

has no bearing on DOE’s liability. DOE may be held

liable if it has “adopt[ed] customs or policies that violate federal law and result in tortious violation of a

plaintiff ’s rights.” Askins v. Doe No. 1, 727 F.3d 248,

254 (2d Cir. 2013); see Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 690-91 (1978). We conclude that Lee-Walker’s

allegations that DOE acted pursuant to its practices,

customs, and policies are insufficient to state a plausible Monell claim against DOE. See Ashcroft v. Iqbal,

556 U.S. 662, 678-79 (2009).

App. 6

Lee-Walker also argues that she should have been

allowed to amend her complaint to introduce requests

for equitable relief from DOE. However, the District

Court denied her motion for leave to amend as moot,

noting that at argument Lee-Walker stated “that she

did not seek to file an amended complaint if her First

Amendment claim was dismissed.” App’x 135. LeeWalker does not contend that she did not so state; her

First Amendment claims were properly dismissed for

the reasons discussed above; and therefore there was

no abuse of discretion in the District Court’s denial of

leave to amend.

We have considered Lee-Walker’s remaining arguments and conclude that they are without merit. For

the foregoing reasons, the judgment of the District

Court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe,

Clerk of Court

[SEAL]

/s/ Catherine O’Hagan Wolfe

App. 7

Lee-Walker v. New York City Dep’t of Educ.

United States District Court for

the Southern District of New York

November 22, 2016, Decided;

November 23, 2016, Filed

16-cv-109

Reporter

220 F. Supp. 3d 484 *; 2016 U.S. Dist. LEXIS 162561

**; 2016 WL 6901320

JEENA LEE-WALKER, Plaintiff, – against – N.Y.C.

DEP’T OF EDUC., ET AL, Defendants.

Counsel: For Jeena Lee-Walker, Plaintiff: Stephen

Bergstein, Bergstein & Ullrich, LLP, Chester, NY; Ambrose Wotor Wotorson, Jr, Law Offices of Ambrose

Wotorson, P.C., New York, NY.

For New York City Department Of Education, Fred

Walsh, individually, Stephen Noonan, individually,

Christopher Yarmy, individually, Benny Ureana, individually, Defendants: Danielle Marie Dandrige, LEAD

ATTORNEY, New York City Law Dept., New York, NY.

Judges: John G. Koeltl, United States District Judge.

Opinion by: John G. Koeltl

Opinion

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The plaintiff Jeena Lee-Walker claims that New

York City school officials retaliated against her

App. 8

because she taught a lesson to her ninth grade students about the Central Park Five, and because of a

subsequent discussion that she had with school officials about that class. She claims that the school officials and the New York City Department of Education

(the “DOE”) violated her First and Fourteenth Amendment rights.

The plaintiff brings this suit under 42 U.S.C.

§ 1983 against the DOE, Superintendent Fred Walsh,

Principal Stephan Noonan, Assistant Principal Christopher Yarmy, and Assistant Principal Benny Ureana.

The defendants move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. This Court has

jurisdiction under 28 U.S.C. § 1331. For the reasons explained below, the motion to dismiss is granted.

I.

In deciding a motion to dismiss pursuant to Rule

12(b)(6), the allegations in the complaint are accepted

as true, and all reasonable inferences must be drawn

in the plaintiff ’s favor. McCarthy v. Dun & Bradstreet

Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s

function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to

determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir.

1985). The Court should not dismiss the complaint if

the plaintiff has stated “enough facts to state a claim

to relief that is plausible on its face.” Bell Atl. Corp. v.

App. 9

Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167

L. Ed. 2d 929 (2007). “A claim has facial plausibility

when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173

L. Ed. 2d 868 (2009). While the Court should construe

the factual allegations in the light most favorable to

the plaintiff, “the tenet that a court must accept as true

all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id.; see also Springer

v. U.S. Bank Nat’l Ass’n, No. 15-cv-1107 (JGK), 2015

U.S. Dist. LEXIS 171734, 2015 WL 9462083, at *1

(S.D.N.Y. Dec. 23, 2015).

When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents

that the plaintiff relied on in bringing suit and that are

either in the plaintiff ’s possession or that the plaintiff

knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner,

Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Faulkner

v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (holding documents outside the record may become the basis for a

dismissal if the document is “integral” to the complaint

and there are no disputes regarding its authenticity or

relevance); Springer, 2015 U.S. Dist. LEXIS 171734,

2015 WL 9462083, at *1.

App. 10

II.

The complaint alleges that the defendants retaliated against the plaintiff in violation of her First

Amendment and due process rights. The following

facts alleged in the complaint are accepted as true for

the purposes of the motion to dismiss.

Lee-Walker is a graduate of Barnard College and

has post-graduate degrees from Harvard and Fordham

Universities. Compl. ¶ 6(b). The plaintiff obtained New

York State teaching licenses in English Language Arts

and was employed as a teacher by the DOE beginning

in at least 2011. Id. ¶¶ 3, 6(b). The plaintiff took a leave

of absence in the 2011-2012 school year and did not receive any formal performance review during that

school year. Id. ¶ 6(c). The plaintiff ’s performance during the 2012-2013 schoolyear was allegedly fully satisfactory. Id. ¶ 6(d).

In November 2013, Assistant Principal Yarmy conducted an informal classroom observation of the plaintiff ’s teaching. Id. ¶ 6(f ). Lee-Walker planned to

include as part of her ninth grade English curriculum

a critical look at the Central Park Five case, which she

hoped would highlight “an American societal tendency

to rush to adverse legal conclusions against black

males.” Id. ¶ 6(e). After observing the class, Yarmy allegedly instructed the plaintiff to be “way more balanced” in discussing the case because he “feared that

it would unnecessarily ‘rile up’ black students.” Id.

¶ 6(g). The plaintiff argued in response that students –

black students in particular – should be “riled up,” and

App. 11

that a “good, engaged education” would necessarily encourage students to “re-examine old assumptions and

to challenge orthodoxy, even whilst presenting a balanced view of the facts.” Id. ¶ 6(h). She also argued that

including the case in her lesson plan would allow students to “contextualize” Miranda warnings and understand their role in civil society. Id. ¶ 6(i).

Assistant Principal Yarmy then allegedly “angrily

disagreed” with the plaintiff, asserting that there had

not been any rush to judgment in the Central Park

Five case and that Miranda warnings did not apply to

the defendants in that case. Id. ¶ 6(j). He then purportedly repeated his concern that the lesson would “rile

up” black students and “possibly create little ‘riots’

over concepts that the[ ] [students] were unlikely to understand anyway,” and repeated his instruction to be

more “balanced” in presenting the case as part of her

lesson plan. Id. ¶ 6(j), (k). The plaintiff continued to

disagree, arguing that “the lesson was appropriate and

‘balanced’ already.” Id. ¶ 6(l). After an “increasingly

shrill” back and forth, the plaintiff allegedly agreed to

“try to follow Yarmy’s specific instruction to be ‘more

balanced,’ ” and later allegedly sought clarification regarding that instruction. Id.

Following their argument, Yarmy allegedly informed Principal Noonan and one or more other Assistant Principals about the inclusion of the Central Park

Five case in the plaintiff ’s lesson plan and about

Yarmy’s argument with her. Id. ¶ 6(m). As a result, the

plaintiff allegedly gained a reputation for being obstinate and insubordinate. Id. ¶ 6(n).

App. 12

Several days later, on November 13, the plaintiff

met with Principal Noonan and Assistant Principal

Yarmy. See id. ¶¶ 6(e), (o). Yarmy reiterated his view

that the plaintiff ’s presentation of the Central Park

Five case was one-sided; that there had in fact been no

“rush to judgment” in the case; that Miranda warnings

were a “recent ‘creation’ ”; and that such a lesson might

create “riot-like” situations. Id. ¶ 6(o). The plaintiff

again reiterated her views about the case, explained

why she believed the lesson would be beneficial for her

students, and argued that her presentation of the case

was fair. Id. ¶ 6(q). Noonan allegedly failed to intervene, and nodded in agreement with Yarmy. Id. ¶¶ 6(p),

(r).

At the same meeting, Noonan allegedly expressed

disapproval of the plaintiff ’s use of the short story

“Nilda,” by Junot Diaz, questioning its appropriateness

given its use of a racial epithet. Id. ¶ 6(s). When the

plaintiff argued that the story would “necessarily incite students to re-examine old assumptions and to

challenge existing orthodoxy,” Noonan suggested that

she was naïve and ordered her to remove the story

from her lessons. Id. ¶¶ 6(s), (t).

Following the meeting, Yarmy and Noonan allegedly described to the plaintiff ’s other supervisors what

they viewed as her “attitude” and “antagonistic pedagogical approach” regarding the Central Park Five

case. Id. ¶ 6(u). Thereafter, the plaintiff ’s relationship

with the supervisory staff allegedly deteriorated. Id.

¶ 6(v). In December 2013, the plaintiff for the first time

received below average “developing” ratings in several

App. 13

performance evaluation categories. Id. ¶ 6(v); see Dandrige Decl. in Supp. of Defs’. Mot., Ex. A. In January

2014, the plaintiff received two evaluations from Assistant Principal Ureana, both of which included “developing” ratings. Compl. ¶¶ 6(x), (z). Also in January,

Principal Noonan sent the plaintiff a written reprimand for allegedly failing to complete certain required

paperwork. See id. ¶ 6(y); Dandrige Decl. Ex. B.

The plaintiff ’s performance evaluations continued

to suffer in the following months. Compl. ¶¶ 6(aa),(bb);

see Dandrige Decl. Exs. D, E. During the following

schoolyear, the plaintiff continued to receive negative

evaluations and reprimands. See Compl. ¶¶ 6(dd)(mm); Dandrige Decl. Exs. F-K. On May 12, 2015,

Superintendent Walsh notified the plaintiff that her

appointment as a probationary teacher would end –

that is, she would be terminated – 9 days later, on May

21, 2015. Compl. ¶ 6(oo); see Dandrige Decl. Ex. L.1

The complaint alleges that the defendants’ negative evaluations and eventual termination of the plaintiff constituted retaliation in violation of her First

Amendment rights. See Compl. ¶¶ 6(jj), 13-14. In particular, the plaintiff argues that given the “inconsistent

1

The complaint alleges that Section 2573 of the New York

Education Law required that the plaintiff be given sixty days’ notice prior to non-renewal or termination of her employment, and

that failure to comply with that procedure violated the plaintiff ’s

rights under the Due Process Clause of the Fourteenth Amendment. Compl. ¶¶ 6(pp)-(tt), 16-17. However, in response to the

motion to dismiss, the plaintiff withdrew her second cause of action for violation of due process, leaving only her first cause of

action for violation of her right to free speech.

App. 14

nature of all the [performance] evaluations,” the evaluations had “been pretextual all along,” and were attempts to “mask retaliatory animus against plaintiff

because of her prior protected activity,” namely, her

speech regarding the Central Park Five case and Miranda warnings. Id. ¶¶ 6(jj), 14. The complaint seeks

damages, costs, and fees. Id. ¶ 18.

The defendants now move to dismiss the complaint, arguing that the plaintiff ’s speech was not protected speech under the First Amendment and that, in

any event, the individual defendants are entitled to

qualified immunity for their actions.

III.

A.

The defendants argue that the complaint fails to

allege sufficiently any constitutional violation because

the plaintiff ’s speech was not protected by the First

Amendment. To state a claim under § 1983, a plaintiff

must allege that the defendants, while acting under

color of state law, denied the plaintiff a constitutional

or federal statutory right. See West v. Atkins, 487 U.S.

42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988); Cornejo

v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). The Fourteenth

Amendment applies the First Amendment to actions

by state officials. See Bd. of Educ., Island Trees Sch.

Dist. No. 26 v. Pico, 457 U.S. 853, 855 n.1, 102 S. Ct.

2799, 73 L. Ed. 2d 435 (1982). A plaintiff alleging retaliation in violation of the First Amendment must

show that “[1] [the plaintiff ] has engaged in protected

App. 15

First Amendment activity, [2] [the plaintiff ] suffered

an adverse employment action, and [3] there was a

causal connection between the protected activity and

the adverse employment action.” Smith v. County of

Suffolk, 776 F.3d 114, 118 (2d Cir. 2015) (alterations in

original) (per curiam) (quoting Dillon v. Morano, 497

F.3d 247, 251 (2d Cir. 2007)). The defendants argue

that the complaint fails to state a claim because the

plaintiff ’s speech was not protected by the First

Amendment.

“[A] state cannot condition public employment on

a basis that infringes the employee’s constitutionally

protected interest in freedom of expression.” Connick v.

Myers, 461 U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d

708 (1983). “Rather, the First Amendment protects a

public employee’s right, in certain circumstances, to

speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct.

1951, 164 L. Ed. 2d 689 (2006). “A public employee,

however, must ‘by necessity accept certain limitations

on his or her freedom,’ because, his or her speech can

contravene governmental policies or impair the proper

performance of governmental functions.” Weintraub v.

Bd. Of Educ. of City Sch. Dist. of City of N.Y., 593 F.3d

196, 201 (2d Cir. 2010) (quoting Garcetti, 547 U.S. at

418-19) (alterations omitted). “The Supreme Court’s

employee-speech jurisprudence reflects ‘the common

sense realization[s] that government offices could not

function if every employment decision became a constitutional matter,’ and that ‘government officials

should enjoy wide latitude in managing their offices

App. 16

without intrusive oversight by the judiciary in the

name of the First Amendment.’ ” Weintraub, 593 F.3d

at 201 (quoting Connick, 461 U.S. at 143, 146). “Accordingly, the Supreme Court has strived ‘to arrive at a balance between the interests of the teacher, as a citizen,

in commenting upon matters of public concern and the

interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its

employees.’ ” Weintraub, 593 F.3d at 201 (quoting Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391

U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)).

With those principles in mind, the Supreme Court

in Garcetti clarified that in order to bring a claim for

violation of the First Amendment a public employee

must first establish that the employee spoke “as a citizen on a matter of public concern.” 547 U.S. at 418. If

not, “the employee has no First Amendment cause of

action based on his or her employer’s reaction to the

speech.” Id. Only when the public employee speaks (1)

as a citizen, and (2) on a matter of public concern, is

the speech protected by the First Amendment; if that

requirement is met, “[t]he 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. But if “the

court determines that the plaintiff either did not speak

as a citizen or did not speak on a matter of public concern, ‘the employee has no First Amendment cause of

action based on his or her employer’s reaction to the

speech.’ ” Sousa v. Roque, 578 F.3d 164, 170 (2d Cir.

2009) (quoting Garcetti, 547 U.S. at 418)).

App. 17

Garcetti further clarified 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 communication from employer discipline.” 547 U.S. at 421. In other words, such speech is

not made by the public employee “as a citizen on a matter of public concern” and thus does not trigger First

Amendment protection. Id. at 418. Garcetti concerned

alleged retaliation against a deputy district attorney

for writing a memorandum concerning purported government misconduct recommending dismissal of a

criminal prosecution. The Supreme Court determined

that because the deputy district attorney had written

the memo pursuant to his official duties, his speech

was not protected by the First Amendment. Id. at 424.

In reaching its conclusion, the Supreme Court explained that employers should have sufficient discretion to manage their operations. Id. at 422. The Court

concluded: “To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound

principles of federalism and the separation of powers.”

Id. at 423.

Justice Souter dissented in Garcetti. Among his

concerns was the possible deleterious effect the Court’s

holding would have on the “teaching of a public university professor.” Id. at 438 (Souter, J., dissenting). Justice Souter explained: “I have to hope that today’s

majority does not mean to imperil First Amendment

protection of academic freedom in public colleges and

App. 18

universities, whose teachers necessarily speak and

write ‘pursuant to . . . official duties.’ ” Id. at 438

(Souter, J., dissenting) (quoting Grutter v. Bollinger,

539 U.S. 306, 329, 123 S. Ct. 2325, 156 L. Ed. 2d 304

(2003)). The Court responded by acknowledging that

the Court did not deal with Justice Souter’s concern:

“[t]here is some argument that expression related to

academic scholarship or classroom instruction implicates additional constitutional interests that are not

fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that

reason do not, decide whether the analysis we conduct

today would apply in the same manner to a case involving speech related to scholarship or teaching.” Id.

at 425.

It thus remains “an open question in this Circuit

whether Garcetti applies to classroom instruction.”

Panse v. Eastwood, 303 Fed. App’x 933, 934 (2d Cir.

2008) (summary order).2 As an alternative standard,

2

At least two courts of appeals have held that Garcetti applies to a primary or secondary schoolteacher’s in-classroom

speech, and that such speech is therefore not protected by the

First Amendment. See Brown v. Chicago Bd. Of Educ., 824 F.3d

713, 715 (7th Cir. 2015); Evans-Marshall v. Bd. Of Educ. of Tipp

City Exempted Vill. Sch. Dist., 624 F.3d 332, 342-43 (6th Cir.

2010); see also Johnson v. Poway Unified Sch. Dist., 658 F.3d 954,

962-64 (9th Cir. 2011) (holding that high school teacher’s inclassroom speech was made “as an employee, not as a citizen,”

and therefore could not form the basis of a First Amendment

claim). Two courts of appeals have acknowledged a carve-out to

the standard set out in Garcetti in the context of speech made by

a professor at a public university. See Demers v. Austin, 746 F.3d

402, 412-13 (9th Cir. 2014); Adams v. Trs. Of the University of

N.C.-Wilmington, 640 F.3d 550, 562 (4th Cir. 2011). One court of

App. 19

the Second Circuit has “held that school administrators may limit the content of school-sponsored speech

so long as the limitations are reasonably related to legitimate pedagogical concerns.” Id. at 934-35 (quotation marks omitted). “Whether a school official’s action

is reasonably related to a legitimate pedagogical concern will depend upon, among other things, the age and

sophistication of the students, the relationship between teaching method and valid educational objective, and the context and manner of the presentation.”

Id. at 935 (quoting Silano v. Sag Harbor Union Free

Sch. Dist. Bd. of Educ., 42 F.3d 719, 722-23 (2d. Cir.

1994) (internal quotation marks omitted)).

The complaint in this case must be dismissed because the plaintiff ’s “claim would fail regardless of the

standard.” Panse, 303 Fed. App’x. at 935. The plaintiff ’s claim fails if the Garcetti standard is applied. The

complaint’s factual allegations make plain that the

plaintiff ’s speech was made “pursuant to [her] duties”

as a public school teacher under Garcetti. 547 U.S. at

421. “The objective inquiry into whether a public employee spoke ‘pursuant to’ his or her official duties ‘is a

practical one.’ ” Weintraub, 593 F.3d at 202 (quoting

Garcetti, 547 U.S. at 424). The plaintiff does not dispute

that her speech in the classroom as part of a lesson

plan was made pursuant to her duties as a public

appeals declined to apply Garcetti to a public school teacher’s

posting of items on a high school bulletin board, but found that

the speech was not protected by the First Amendment in any

event because it was not speech on a matter of public concern. Lee

v. York Cty. Sch. Div., 484 F.3d 687 (4th Cir. 2007).

App. 20

school teacher. See Plaintiff ’s Opp. to Mot. at 6. Indeed,

those statements “were made to [her] own students, at

school, during class, concerning a topic that [s]he alleges [s]he believed to be of importance to their continuing” education. Panse, 303 Fed. App’x at 935.

The plaintiff does argue that her conversations

with Principal Noonan and Assistant Principal Yarmy

were “private discussions” that “did not relate solely to

her objections to the limits placed on her classroom

speech” and constituted “speech on a matter of public

concern.” Plaintiff ’s Opp. to Mot. at 8. But, the fact that

the speech was related to matters of public concern is

insufficient if the speech was made “pursuant to [her]

official duties.” Garcetti, 547 U.S. at 421. “[U]nder the

First Amendment, speech can be ‘pursuant to’ a public

employee’s official job duties even though it is not required by, or included in, the employer’s job description, or in response to a request by the employer.”

Weintraub, 593 F.3d at 203. Indeed, speech is not protected if it is “ ‘part-and-parcel of [the employee’s] concerns’ about [the employee’s] ability to ‘properly

execute [the employee’s] duties.’ ” Weintraub, 593 F.3d

at 203 (quoting Williams v. Dallas Indep. Sch. Dist.,

480 F.3d 689, 694 (5th Cir. 2007)). Thus, the plaintiff ’s

speech challenging the views of Noonan and Yarmy

need not have related solely to her classroom responsibilities to have been “pursuant to” her official duties;

what matters is that the speech was “part-and-parcel”

of her concerns regarding the ability to teach effectively. See Weintraub, 593 F.3d at 203 (speech at issue

was a “means to fulfill, and undertaken in the course

App. 21

of performing, [plaintiff ’s] primary employment responsibility of teaching”) (citations and quotation

marks omitted). Indeed, limiting speech made “pursuant to” a public employee’s official duties to preclude

any speech which also represents the speaker’s personal views would render the standard meaningless.

The content and context of the plaintiff ’s conversation with Noonan and Yarmy as alleged makes plain

that it was not a personal disagreement between coworkers. Rather, the plaintiff alleges a disagreement

between herself and her supervisors regarding the content and tone of a lesson to be given to her ninth grade

English class. She spoke “only to several school administrators rather than to the public,” and her concerns

regarded her own lesson plans, “for which there is no

relevant citizen analogue.” Massaro v. N.Y.C. Dep’t of

Educ., 481 Fed. Appx. 653, 655-56 (2d Cir. 2012) (summary order). Although the lack of a citizen analogue is

not dispositive, it reinforces the conclusion that the

plaintiff ’s speech was in furtherance of her duties as a

public school teacher. See Weintraub, 593 F.3d at 204.

Therefore, pursuant to the standard articulated by the

Supreme Court in Garcetti, the plaintiff ’s speech was

the speech of a public employee pursuant to her official

duties and is not entitled to First Amendment protection.

The Court of Appeals for the Second Circuit has

left open the possibility that a different standard may

apply to classroom instruction. See Panse, 303 Fed.

App’x at 934. But even using the alternative standard,

the complaint must be dismissed. Under the

App. 22

alternative standard, administrators may “limit the

content of school-sponsored speech so long as the limitations are ‘reasonably related to legitimate pedagogical concerns.’ ” Silano, 42 F.3d at 722 (quoting

Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273,

108 S. Ct. 562, 98 L. Ed. 2d 592 (1988)). “[T]he ultimate authority to determine what manner of speech in

the classroom is inappropriate properly rests with the

school board, rather than with the federal courts.” Silano, 42 F.3d at 722 (alterations and quotation marks

omitted). “School officials are in the best position to ensure that their students learn whatever lessons an activity is designed to teach, and that readers or listeners

are not exposed to material that may be inappropriate

for their level of maturity.” Id. (alterations and quotation marks omitted).

Lee-Walker argues that the complaint does not establish that she had done anything wrong in discussing the Central Park Five case and that she does not

concede that Yarmy’s concerns were reasonable or realistic. But refusal to concede is insufficient to preclude

dismissal under Rule 12(b)(6). Rather, the complaint

must allege facts sufficient to support “a claim to relief

that is plausible on its face.” Twombly, 550 U.S. at 570.

The complaint alleges that the plaintiff ’s supervisors instructed her to be “more balanced” in discussing

the Central Park Five case as a part of her lesson plan

for a ninth grade class; that they were concerned about

the students’ potential reactions to the lesson; and that

they were concerned the lesson may have been age inappropriate. See Compl. ¶ 6(g), (j), (k). The complaint

App. 23

also alleges that Principal Noonan ordered the plaintiff to excise a short story from her lesson plan because

of its use of a racial epithet. Id. ¶ 6(r)-(t). Lee-Walker

does not allege that the defendants’ concerns were fabricated or pretextual, or that they were unrelated to

her work as a teacher. Although the plaintiff disagreed

with her supervisors’ concerns, there is no plausible argument that the limitations imposed on the plaintiff ’s

speech were not “reasonably related to legitimate pedagogical concerns.” Hazelwood, 484 U.S. at 273. Rather,

the plaintiff argues that her supervisors should have

weighed those pedagogical concerns differently. The

task of balancing those concerns is precisely within the

province of school officials, and is uniquely unsuited to

the federal courts. See Silano, 42 F.3d at 722-23; Evans-Marshall, 624 F.3d at 342 (“Permitting federal

courts to distinguish classroom vulgarities from lyrics

or to pick sides on how to teach Siddhartha not only is

a recipe for disenfranchising the 9,000 or so members

of the Tipp City community but also tests judicial competence.”). Therefore, even under the alternative approach to the clear rule articulated in Garcetti, the

complaint fails to plead “factual content that allows

the court to draw a reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678.

B.

Moreover, the individual defendants are entitled

to qualified immunity. “[G]overnment officials performing discretionary functions generally are shielded

App. 24

from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818,

102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982) (alterations

omitted).3 “To determine whether a right is clearly established, we look to (1) whether the right was defined

with reasonable specificity; (2) whether Supreme

Court or court of appeals case law supports the existence of the right in question, and (3) whether under

preexisting law a reasonable defendant would have

understood that his or her acts were unlawful.” Scott v.

Fischer, 616 F.3d 100, 105 (2d Cir. 2010). “A clearly established right is one that is ‘sufficiently clear that

every reasonable official would have understood that

what he is doing violates that right.’ ” Mullenix v. Luna,

136 S. Ct. 305, 308, 193 L. Ed. 2d 255 (2015) (quoting

Reichle v. Howards, 566 U.S. 658, 132 S. Ct. 2088, 2093,

182 L. Ed. 2d 985 (2012)). This “must be undertaken in

light of the specific context of the case, not as a broad

general proposition.” Saucier v. Katz, 533 U.S. 194, 201,

121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001).

Following Garcetti, it remains “an open question”

whether that case’s standard “applies to classroom instruction.” Panse, 303 Fed. App’x at 934; see also Kramer v. N.Y.C. Bd. of Educ., 715 F. Supp. 2d 335, 352-54

(E.D.N.Y. 2010) (surveying the “lack of national

3

The plaintiff argues that qualified immunity is inappropriate with respect to her claims for equitable relief, but the current

complaint seeks no such relief and, in any event, the individual

defendants would not have the power to grand [sic] such relief.

App. 25

uniformity” regarding whether Garcetti applies to

classroom instruction). In light of this uncertainty, officials in the defendants’ positions could reasonably

have believed that demanding changes to the plaintiff ’s lesson plans or disciplining her for failing to comply with those instructions or for the content of her

classroom teaching did not violate the plaintiff ’s First

Amendment rights. See Vega v. Miller, 273 F.3d 460,

467-68 (2d Cir. 2001) (prior case law would not have

put defendants on notice that disciplining plaintiff for

failure to exercise professional judgment in class

would violate his free speech rights).

The plaintiff relies on the general proposition that

“the First Amendment tolerates neither laws nor other

means of coercion, persuasion, or intimidation that

cast a pall of orthodoxy over the free exchange of ideas

in the classroom.” Dube v. State Univ. of N.Y., 900 F.2d

587, 598 (2d Cir. 1990) (quotation marks omitted). But

that general principle is insufficient to constitute a

clearly established right that the defendants violated,

because the Supreme Court has “repeatedly told courts

not to define clearly established law at a high level of

generality. The dispositive question is whether the violative nature of particular conduct is clearly established,” Mullenix, 136 S. Ct. at 308 (alterations and

quotation marks omitted). “We do not require a case

directly on point, but existing precedent must have

placed the statutory or constitutional question beyond

debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131

S. Ct. 2074, 179 L. Ed. 2d 1149 (2011).

App. 26

None of the cases the plaintiff relies upon meet

that standard. All of the cases predate Garcetti, which,

as the Court of Appeals for the Second Circuit recognized, “narrowed the Court’s jurisprudence in the area

of employee speech by further restricting the speech

activity that is protected.” Weintraub, 593 F.3d at 201

(quotation marks omitted). In any event, those cases

would not render clearly established the “violative nature of [the] particular conduct” at issue here. Mullenix, 136 S. Ct. at 308 (quotation marks omitted). For

example, James considered a teacher who was terminated because he passively wore a black armband during class. James v. Bd. of Educ. of Cent. Dist. No. 1 of

Towns of Addison, 461 F.2d 566 (2d Cir. 1972). That

very case affirmed that “curriculum controls belong to

the political process and local school authorities”; indeed, it was the absence of any connection to “the

teacher’s obligations to teach” that led the court to conclude that the armband prohibition was unconstitutional. Id. at 573.4 Dube, on which the plaintiff also

relies, considered a college professor, not a high school

teacher. 900 F.2d at 587. “[T]he constitutional rules applicable in higher education do not necessarily apply

in primary and secondary schools, where students generally do not choose whether or where they will attend

school.” Parents Involved in Cmty. Sch. v. Seattle Sch.

Dist. No. 1, 551 U.S. 701, 724-25, 127 S. Ct. 2738, 168

4

Moreover, the standard set forth in James – that the question “is whether the regulatory policy is drawn as narrowly as

possible to achieve the social interests that justify it,” 461 F.2d at

574 – is inapplicable to school-sponsored speech, see Panse, 303

Fed. App’x at 934.

App. 27

L. Ed. 2d 508 (2007); see also Evans-Marshall, 624 F.3d

332, 343 (“The concept of ‘academic freedom,’ moreover,

does not readily apply to in-class curricular speech at

the high school level.”). No decision before November

2013 (and none since) would put “every reasonable official” on notice that the conduct alleged violates a

teacher’s First Amendment rights. See Vega, 273 F.3d

at 467.

C.

The plaintiff moved to amend the complaint to

“assert a reinstatement and front pay claim and clarify] the Monell claim.” Plaintiff ’s Opp. to Mot. at 1.

At argument on the motions, however, the plaintiff

explained that she did not seek to file an amended

complaint if her First Amendment claim was dismissed. The plaintiff alleged all that she sought to

allege to plead her First Amendment claim. Therefore,

the plaintiff ’s motion to amend her complaint is denied

without prejudice as moot.

CONCLUSION

For the reasons explained above, the defendants’

motion to dismiss the complaint is granted, and the

complaint is dismissed with prejudice. The plaintiff ’s

motion to amend the complaint is denied without

prejudice as moot. The Clerk is directed to enter

judgment dismissing the complaint and closing the

case. The Clerk is also directed to close all pending

motions.

App. 28

SO ORDERED.

Dated: New York, New York

November 22, 2016

/s/ John G. Koeltl

United States District Judge