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By DAVID L. HUDSON JR.
First Amendment Center
A former employee with a Nevada school district will have her day in court after a federal district judge ruled she had a clearly established right to attend a public meeting and sit next to her former boss.
Kathleen Nichols was an employee with the Washoe County School District, where she worked as an administrative assistant to the district’s general counsel, Jeffrey Blanck.
In 2003, Blanck came into conflict with Superintendent James Hager, who suspended him as general counsel in January 2004.
In March 2004, Nichols was transferred to the human resources department while Blanck’s fate was decided.
Assistant Superintendent Laura Dancer told Nichols she would be transferred back to the general counsel’s office at some point.
On March 23, 2004, the district board held a public meeting to decide whether Blanck would be dismissed.
At the meeting, Nichols sat next to Blanck, though she didn’t speak to him. The board voted to dismiss Blanck.
The next day Dancer told Nichols that she was to remain permanently in human resources at a frozen salary because of her continuing association with Blanck. Dancer censured Nichols for sitting next to him.
Nichols, who took early retirement, sued in federal court, alleging that Hager, Dancer and the school district had retaliated against her for using her First Amendment free-association rights.
In 2007, U.S. District Judge Larry R. Hicks dismissed the suit, accepting the defendants’ argument that Nichols held a patronage position and that she could not sue for retaliation.
The 9th U.S. Circuit Court of Appeals reinstated the lawsuit in 2009, reasoning that the patronage doctrine did not apply “because Nichols was (transferred) for a perceived lack of personal loyalty, rather than political loyalty.”
Instead, the 9th Circuit instructed the lower court to apply traditional public-employee First Amendment principles.
On remand, the district court once again granted summary judgment to the defendants, reasoning in a 2010 decision that the school district’s interest in an efficient, disruption-free workplace trumped Nichols’ free-association rights.
In 2011, the 9th Circuit once again reversed the district court, finding that the school district had no evidence that Nichols had caused any disruption in the workplace or that her association had caused any.
Again, the 9th Circuit sent the case back to the district court.
Back in the lower court, the defendants filed a motion claiming they were entitled to qualified immunity from legal action because there was no clearly established right to show personal loyalty to a former boss.
This time, Judge Hicks ruled in favor of Nichols instead of the defendants.
In his Aug. 1 decision in Nichols v. Hager, Hicks wrote that the 9th Circuit had determined that “the pertinent right is that of an employee to associate with a fellow employee at a public meeting.”
He continued: “It is undisputed that such a right was clearly established at the time of these events.”
Hicks did say that at an expected trial, the defendants might be able to assert a qualified-immunity defense on the personal-loyalty question because “the court finds that a right to personal loyalty had not been clearly established at the time of Nichols censure.”
But Hicks acknowledged that for purposes of the qualified-immunity motion, “the court must consider that Nichols was not actually censured over a question of personal loyalty but was instead punished because she chose to attend a meeting and sit next to her former boss.”
Nichols is seeking damages for her claim of retaliation by the school district.
Her attorney is none other than her former boss, Jeffrey Blanck, who told the First Amendment Center Online that he was pleased with the latest ruling.
Blanck said the case would proceed to trial unless the defendants appeal the denial of qualified immunity.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.