Dear Legal Mailbag:

Recently, a 7th-grade special education teacher in my building began maternity leave. The other special education teachers, paraprofessionals, and tutors here have been picking up the slack because we cannot find a qualified candidate to serve as her substitute during her leave. Obviously, this has been a challenge for all of us, but I think one of my ELA teachers is taking it particularly hard, as evidenced by this charming message he sent a parent:

Please note: the District has not yet supplied a qualified Special Education teacher to co-teach my class, even though the teacher has been out since the end of January. I am teaching this class on my own and modifying assignments to the best of my ability, while trying to provide appropriate instruction to all 12 students with IEPs who are also in my class. But it is a very, very difficult job. Your daughter received a modified mid-unit assessment (which the Special Education teacher assigned while on maternity leave!), but I don’t think that she has received any additional support for the mid-term assessment. I am only letting you know this because I am truly frustrated that our children do not get the classroom support that they need and deserve!

I have no question that this is a highly inappropriate message to send to a parent, and I will be addressing my concerns with the teacher. However, I wonder about the legal ramifications and district exposure when I respond to him about this message. I don’t want to say anything wrong!

Watching My Words

Dear Watching:

Legal Mailbag feels your pain. The teacher was way off base in communicating with the parent in such a negative way. The good news is that the teacher cannot claim First Amendment protection. However, it is important to recognize that teachers and other school employees now have legal protection when they make or discuss recommendations at PPT meetings.

As to the message itself, you do not have to tolerate his unilateral expression to the parent of his frustration with the situation. When the teacher wrote the message to the parent, he was acting within the scope of his job responsibilities, and he was not exercising his free speech rights under the First Amendment. It is therefore appropriate for you to meet with the teacher, first, to hear his side of the story, and, second, to inform him that his message to the parent was unacceptable. In that conversation, you can help the teacher understand that, if he has such concerns in the future, he should speak with you first, and the two of you should work together to communicate appropriately with the parent or parents.

In following up, you may wish to impose discipline in consultation with appropriate administrators, such as the director of human resources and/or the superintendent. Since you anticipate the possibility of discipline even before you meet with this teacher, it would be appropriate for you to reach out to the union in advance and invite a union representative to attend the meeting as well. Technically, the right to union representation arises when an employee asks for such representation because he or she reasonably fears for his or her job security. However, being proactive in such situations can promote a collaborative working relationship with the union. As to discipline itself, it could range from a simple counseling letter to a written reprimand, even to suspension. The district should determine the level of discipline based on the employee’s prior disciplinary record, if any, and the level of the teacher’s acceptance of responsibility and contrition.

In this regard, please note that such comments, if made at a planning and placement team meeting, may now be protected. Section 1 of Public Act 19-184 added a new subsection (i) to Conn. Gen. Stat. § 10-76d, and it provides:

(i) No local or regional board of education shall discipline, suspend, terminate or otherwise punish any member of a planning and placement team employed by such board who discusses or makes recommendations concerning the provision of special education and related services for a child during a planning and placement team meeting for such child.

This new statute, effective last July 1, leaves many questions, such as whether an employer can discipline an employee who makes such protected comments in an inappropriate manner (e.g., by being sarcastic or hostile, either to the parent or to school staff). However, it is important to recognize this new protection for employee speech.

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.