Speech Therapist Can Pursue Retaliation Claim

(CN) - The 10th Circuit revived a speech therapist's retaliation claim against the Albuquerque Public Schools Board, finding that her advocacy on behalf of special education students is protected under the First Amendment.

Janet Reinhardt, who has worked in the Albuquerque Public Schools since 1996, complained repeatedly to school administrators that she wasn't receiving accurate caseload lists, and that the oversight was resulting in qualified special education students not receiving speech and language services. The inaccurate lists also negatively affected her contract status and salary, she said.

Reinhardt filed a complaint with the New Mexico Public Education Department, alleging violations of the Individuals with Disabilities Education Act. After an investigation, the state ordered the school to correct the problem.

Reinhardt also advocated for a specific high-school student to receive a neuropsychological evaluation and special reading instruction.

She said the board reduced her caseload, assigned her to work exclusively with ninth-grade students and refused to extend her contract, in violation of the First Amendment and the Rehabilitation Act.

The district court sided with the school, saying the school could provide legitimate, non-discriminatory reasons for her demotion, and that her advocacy was not protected because it was part of her official duties.

The Denver-based appellate panel reversed, finding that "all three forms of Reinhardt's advocacy on behalf of disabled students constitute protected activity under the Rehabilitation Act."

The court also rejected the school district's claim that Reinhardt's demotion was merely "an alteration in job responsibilities."

"The changed assignment directly led to a reduction in compensation because Reinhardt no longer qualified for an extended contract," Judge Paul Kelly wrote for the three-judge panel. "Under these facts, we think a reasonable employee might have been dissuaded from advocating for special education students knowing that her workload and salary would be reduced."

The court rejected the school board's claim that student advocacy was part of Reinhardt's regular work duties and thus wasn't protected by the First Amendment.

"Reinhardt's consulting an attorney and filing the state complaint went well beyond her official responsibilities," Kelly wrote. When Reinhardt went "beyond complaining to administrators" and filed a state complaint, "her speech was not pursuant to official duties, but rather was the speech of a private citizen," Kelly added.

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