The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

When blowing the whistle = shouting "the sky is falling" (with bonus sockpuppetry + Minecraft)


1. The facts, from Pacheco v. Waldrop (W.D. Ky. Dec. 9, 2014):

[Shawnda] Pacheco taught Spanish at Reidland High School … for ten years prior to her termination on January 18, 2013…. Although the parties' specific accounts vary, sometime early in the week of December 10, 2012, Taylor Ballard, another RHS teacher, reported to [District resource officer Bruce] Watson that two female students in one of his classes had overheard two male students in that same class talking about a bomb and possessing some sort of a map or drawing showing where the bomb might be placed.

Watson took the two male students to Principal [Victor] Zimmerman's office, where Zimmerman had each student separately write a statement about what had occurred in Ballard's class. The two students wrote similar statements describing a videogame they had played [Minecraft] and explained that they had modeled a location they created in that game on the floor plan of RHS. Watson researched the videogame and reported to Zimmerman that the videogame did involve building locations where battles could then take place.

Zimmerman and Watson also interviewed the two female students who had initially reported the matter to Ballard. By the end of that school day, Zimmerman and Watson were satisfied that there was no imminent threat or plan to harm the school or its students, concluding that the two male students had, in fact, been discussing a videogame and that their overheard conversation had been misinterpreted. Zimmerman thereafter informed [Assistant Principal Jodi] Butler of the situation and together they contacted the parents of the students who had been investigated as well as the students who had made the report.

The administrators concluded that there was no problem, that this was all a misunderstanding, and "that the two male students had not violated any code of conduct and that no disciplinary action was warranted."

Then later that week, Dec. 14, 2012, the school shooting in Newtown, Conn., took place, and one of the male Minecrafters (called Student 1 in the opinion) was again suspected of doing something:

Zimmerman observed Pacheco talking to another teacher, Michael Wood, in the hallway. Wood told Zimmerman that he had seen a student, whose name Wood did not know, carrying a large bag with something dangerous in it. Zimmerman subsequently saw Student 1 carrying an oversized bag and, due to Wood's concern, asked Student 1 to come to his office. Student 1 allowed Zimmerman to search the bag, and Zimmerman determined that the bag contained only school-related items and nothing dangerous.

So, again, no problem—but that's not how Pacheco saw it:

Later that day, Pacheco met with another RHS student, whom the parties refer to as "Student 2," and asked him to write a letter to the Paducah Sun newspaper telling the newspaper that a student who had twice brought weapons to school had been overheard talking about plotting a bomb attack at RHS and had prepared a map of the school relative to that plot. Pacheco dictated the letter to Student 2 as he typed it on a RHS laptop computer and then printed the letter on a printer in RHS's library. Pacheco then asked Student 2 to sign his name to the letter. Pacheco says she asked Student 2 to sign the letter using his name and phone number because she was "hoping to personally avoid the wrath of Waldrop." Pacheco mailed the letter to the Paducah Sun the next day, Saturday, December 15. That letter stated, in its entirety:

Dear sir,

As a student at Reidland High School, I see fights dealt with promptly, tobacco abuse punished according to school regulations, and even profanity is dealt with promptly. But we have a student, someone who sits in class with us, who has brought weapons twice and most recently plotted a map of bomb and gun attack sites around the school area. The student has yet to be punished for anything. Is it that Doctor Waldrop, the Superintendent, is afraid to enforce school rules? Is he being protected because of some minority status? Although he's not a minority. Is he special ed? Regardless the rest of us sit in class with him knowing he's dangerous. What would you do Mr. Editor?

Crikey! Unsurprisingly, this led to the police department being called, and the school being closed for a day, with various disruptive cascade effects: "RHS and Reidland Middle School [which is physically connected to RHS] resumed classes the next day, December 19. December 18 and 19 were originally scheduled for final exams, with the holiday break beginning on December 20. Due to the closure, final exams scheduled for December 18 were administered when the school resumed classes in January, and RHS and Reidland Middle School held a makeup day on Presidents' Day, February 18." Equally unsurprisingly, Pacheco was fired.

2. Pacheco then sued. In December, the district court rejected her First Amendment argument, on the grounds that her speech was highly disruptive of the employer's operations (which is generally a permissible basis for firing a government employee) (paragraph breaks added, court's misspelling of Pacheco's name corrected):

For this analysis, the Court assumes that Pacheco's statements were not made with knowing or reckless disregard of the truth and therefore related to a matter of public concern. Nor does the Court discount the seriousness of that concern—a purported attack on a school—in a community that has previously suffered a similar incident. However, every other factor weighs strongly in favor of RHS's interest in the efficient operations of the school.

The letter to the editor was certain to foment controversy, as it was mailed the day after the Newtown, Connecticut school shooting (of which Pacheco was aware). It did impede RHS's operations, as school was cancelled, final exams were rescheduled, and RHS had to operate on a holiday to make up for the missed day. Reidland Middle School … was also closed, and in total approximately 900 students and their families were affected. It also affected confidence, as the school saw a 10% drop in attendance on the first day it reopened. While RHS was able to rebut the statements through a press release and an intercom address to students, doing so drew additional negative attention to the student who had been wrongfully suspected as having planned a bomb threat.

Perhaps most importantly, the concerns Pacheco raised in the letter to the editor could have easily been dispelled by an inquiry with the school administration. Finally, while truth is only one element in this analysis, Pacheco's statements were ultimately false.

With these factors in mind, the Court concludes Pacheco's First Amendment right to publicly express her concerns was outweighed by RHS's interest in promoting the efficiency of the educational services provided by RHS.

Sounds quite right to me (though I would have added that Pacheco behaved dishonestly—and unfairly to Student 2—in using Student 2 as the vehicle for her plan).

3. Then, though, the court turned to Pacheco's claim under Kentucky's whistleblower statute, which protects from reprisal government employees who "[1] bring[] to the attention of the Kentucky Legislative Ethics Commission, the Attorney General, the Auditor of Public Accounts, the Executive Branch Ethics Commission, the General Assembly of the Commonwealth of Kentucky or any of its members or employees, the Legislative Research Commission or any of its committees, members or employees, the judiciary or any member or employee of the judiciary, any law enforcement agency or its employees, or any other appropriate body or authority, [2] any facts or information relative to an actual or suspected violation of any law, statute, executive order, administrative regulation, mandate, rule, or ordinance …, or any facts or information relative to actual or suspected mismanagement, waste, fraud, abuse of authority, or a substantial and specific danger to public health or safety" (emphasis added). The newspaper, the court concluded, could well be an "appropriate body or authority," and Pacheco's case could forward.

Yet last week, the court reconsidered this decision. The newspaper, the court concluded, isn't an "other appropriate body" after all, for purposes of the statute:

First and importantly, the Act lists only public bodies before the phrase "or any other appropriate body or authority," implying that phrase should be restricted to public bodies. The doctrine of ejusdem generis holds that if "in a statute, general words follow or precede a designation of particular subjects or classes of persons, the meaning of the general words ordinarily will be presumed to be restricted by the particular designation, and to include only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose."

Second[,] the fact that there is no case in which the Act was applied to newspapers suggests the Act does not extend to reports made to newspapers. To be fair, in general the absence of evidence is not evidence of absence. However, the lack of observable cases in which the Act was interpreted to include newspapers suggests, albeit weakly, that the Act does not include newspapers. See Douglas Walton, Nonfallacious Arguments From Ignorance, 29 American Philosophical Quarterly 381 (1992) (citing as an example the fact that drugs are approved for use based on the lack of observable negative side effects, from which the conclusion may be drawn that the drugs do not cause those side effects).

Third, it is persuasive that a federal whistleblower statute has been interpreted to exclude reports to newspapers. Kentucky courts have routinely looked to the interpretation of federal whistleblower statutes for guidance.

Finally, although Kentucky courts have not addressed this specific issue, when they have defined the phrase "any other appropriate body or authority," they speak in terms of a "public body."

In short, a plain reading of the Act clearly indicates that a report must be made to a public entity to be protected.

Sounds like the right interpretation of the statute to me. So no luck for Pacheco, and a note of caution for other employees.