(CN) – A Ninth Circuit panel on Thursday upheld a California high school’s firing of a longtime campus supervisor for encouraging students to film police officers arresting a black student during a 2014 schoolyard melee.
The three-judge panel spurned Shenetta Toney’s argument that she was speaking as an individual and not as a public employee when she yelled “police brutality” and told onlooking students to “pull out your cellphones and record this.”
Coining the argument an “unusual claim of retaliation for the exercise of First Amendment rights,” the panel affirmed the trial court’s ruling in favor of school administrators.
Toney filed a pair of lawsuits against Bear Creek High School’s principal and personnel director in 2015 after she was fired following the campus brawl that involved students and non-students.
The fight, captured on cellphone video, ended with officers pinning a black student on the ground with dozens of students shouting in the background. After stopping the melee, Stockton Police arrested three men and later charged Toney with interfering with a police officer.
Toney’s charges were subsequently dropped, but she was fired after 15 years with the Lodi Unified School District
The high school is located in Stockton and part of the Lodi Unified School District.
Toney said she was “horrified” by the officers’ conduct.
“They violently smashed [the black student’s] face into the pavement, wrapped their hands around her neck, and yelled at her to be quiet, while another officer had her pinned to the ground with his knee in her back, trying to handcuff her,” Toney said in one of her lawsuits.
Toney’s attorney Randy Rumph of Bakersfield did not immediately return a phone call request for comment on the Ninth Circuit’s ruling.
The defendants said Toney escalated the altercation and that her speech was a “determining factor” in her firing.
The panel invoked a “seminal” U.S. Supreme Court 2006 decision in Garcetti v. Ceballos which held public employees can be disciplined for speech made within the scope of employment.
Garcetti involved a Los Angeles County deputy district attorney that claimed he was passed up for promotions after he questioned a search warrant. In a 5-4 decision, the high court held government employees have no protections for speech that is “pursuant to” their jobs.
The panel’s three-page unpublished order concludes: “[Toney’s] comments were made during the course of her duties as a campus supervisor to maintain campus order and safety. As the Supreme Court said in Garcetti, his superiors retained the ‘authority to take proper corrective action’ if they ‘thought his memo was inflammatory or misguided.’ Ms. Toney’s superiors were in a similar position.”
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