The Volokh Conspiracy
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Sixth Circuit Denies Qualified Immunity to School Officials
Court finds parent's right to comment on their interactions with their child's coaches or teachers is cleartly established.
Qualified immunity is not reserved for police officers. Other government officials invoke QI as well. A reasonable number of QI cases actually arise in the educational context. A recent example is McElhaney v. Williams from the U.S. Court of Appeals for the Sixth Circuit, in which school officials allegedly retaliated against a parent who criticized his daughter's softball coach.
Judge Readler summarized the issues as follows:
Youth sports are as much about instilling life lessons as they are winning and losing. Child athletes can be forgiven for occasionally losing sight of this bigger picture. But we expect more from their parents.
As this case demonstrates, those expectations are not always met. Randall McElhaney is an enthusiastic supporter of his daughter, who, when this dispute arose, was an infielder on her high school softball team. His passion, however, sometimes gets the best of him. When his daughter was benched, McElhaney sent text messages to her coach criticizing his managerial decisions. In response, school officials banned McElhaney from attending games for the next week.
A dispute over the team's starting infield soon became much more. McElhaney filed this suit, alleging that school officials retaliated against him for criticizing his daughter's coach, speech that McElhaney believed was shielded by the First Amendment. Defendants moved for summary judgment on qualified immunity grounds. In their minds, McElhaney was not denied a constitutional right, let alone one that was clearly established. Reaching only the clearly established prong of qualified immunity, the district court granted defendants' motion and entered judgment in their favor.
As we see things, it is clearly established at a low level of generality that when a school employee interacts with a student, speech by the student's parent about those interactions enjoys First Amendment protection. On that basis, we must reverse the district court. We remand the case to resolve whether retaliation occurred in the first instance.
And from later in the opinion:
In this day and age, one need not look (or scroll) far to find speech she deems disrespectful. Many of us might share her sentiment. But that does not mean the disrespectful speech opens one up to government retaliation. The First Amendment muscularly protects most types of speech. For today's purposes, it is enough to say that those protections encompass a parent's criticism of the ways in which school employees treat the parent's child at school. See Jenkins, 513 F.3d at 588. In that situation, it is clearly established at a low level of generality that a school official may not retaliate against the parent for the content of his speech. See id.
Accordingly, McElhaney has satisfied the clearly established prong of the qualified immunity inquiry. That leaves the threshold question of whether a constitutional violation in fact occurred, a determination best made by the district court on remand. Cf. Novak, 932 F.3d at 430 (remanding a First Amendment retaliation qualified immunity claim). Back in the district court, the evidence might show that none (or only some) of defendants' actions were motivated by McElhaney's speech, rather than the time, place, or manner of that speech. Or it might show that the ban was not a sufficiently adverse action. Rudd v. City of Norton Shores, 977 F.3d 503, 51415 (6th Cir. 2020) (collecting cases on instances of "adverse action"). Either way, these questions are best answered by the district court in the first instance.
