US Supreme Court Rules That Public Worker Testimony Is Protected From Retaliation

 From Rubberroom3020-a blog:

At 3020-a arbitration in New York City, the Department of Education tries cases with vengeance and bad faith. When someone succeeds in trumping their deck of cards, say with subpoenas and excellent testimony by witnesses who work for the Department but want to tell the truth, the Department yells "foul".

The attorneys at the Gotcha Squad are now telling principals to stop anyone in the school building who is subpoenaed to appear for a Respondent and testify that if they do appear at the arbitration they will be docked a day's pay.

So, please give this awesome decision below by the United States Supreme Court to everyone put into that position. TRUTH MUST BE TOLD WITHOUT FEAR.

Betsy Combier


Public Worker Testimony Is Protected, Justices Rule
By ADAM LIPTAK, JUNE 19, 2014
LINK

WASHINGTON — The First Amendment protects government employees from retaliation for giving truthful testimony that was not part of their job responsibilities, a unanimous Supreme Court ruled Thursday.

The case involved Edward R. Lane, a former director of a youth program at a public community college in Alabama, who was fired after giving trial testimony in a public corruption trial.

“It would be antithetical to our jurisprudence,” Justice Sonia Sotomayor wrote for the court, “to conclude that the very kind of speech necessary to prosecute corruption by public officials — speech by public employees regarding information learned through their employment — may never form the basis for a First Amendment retaliation claim.”

Judge Sonia Sotomayor



“Such a rule,” she added, “would place public employees who witness corruption in an impossible position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.”

Mr. Lane had discovered that a state legislator, Suzanne Schmitz, was on his program’s payroll, collecting $177,000, though she performed virtually no work. Mr. Lane fired her, and she vowed to get him back.

A federal grand jury indicted Ms. Schmitz on corruption charges. Mr. Lane, under subpoena, testified about what he had learned. Ms. Schmitz was convicted, sentenced to 30 months in prison and ordered to pay back the money.

Mr. Lane was nonetheless fired in 2009, and he sued the president of the college, Steve Franks, saying that his termination was retaliation for his testimony and a violation of his First Amendment rights. Mr. Franks said he let Mr. Lane go for financial reasons unrelated to his testimony.

The federal appeals court in Atlanta said it was unnecessary to decide who was right because public employees have no First Amendment protections for statements they make as part of their official duties.

Since “the record fails to establish that Lane testified as a citizen on a matter of public concern,” the appeals court said in an unsigned opinion, “he cannot state a claim for retaliation under the First Amendment.”

Justice Sotomayor said the appeals court was wrong on both points: Mr. Lane had testified as a citizen and his testimony was on a matter of public concern.

“Sworn testimony in judicial proceedings,” she wrote, “is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth.”

“That is so,” she added, “even when the testimony relates to his public employment or concerns information learned during that employment.”

Justice Sotomayor also had little difficulty in determining that Mr. Lane’s testimony — about “corruption in a public program and misuse of state funds” — was on a matter of public concern.

Thursday’s decision in Lane v. Franks, No. 13-483, clarified the scope of the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which cut back on First Amendment protections for public employees and ruled that a prosecutor’s internal memorandum prepared as part of his job was unprotected.

Justice Clarence Thomas, in a concurrence signed by Justices Antonin Scalia and Samuel A. Alito Jr., said Thursday’s decision did not address testimony from, say, police officers and crime lab analysts for whom court appearances are “a routine and critical part of their employment duties.”

While Mr. Lane established an important legal principle, he will not benefit from it. In the second part of her opinion, Justice Sotomayor wrote that Mr. Franks, the official who fired him, was protected by qualified immunity.

That doctrine required Mr. Lane to show not only that his rights were violated, but also that those rights were clearly established at the time. Justice Sotomayor said Mr. Lane could not overcome the second hurdle.
Lane v. Franks
FIRST AMENDMENT
QUALIFIED IMMUNITY
PUBLIC EMPLOYEES
RETALIATION
TESTIMONY
SUBPOENA
ISSUES:

Does the First Amendment permit the government to retaliate against a public employee for sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary work duties?
Does qualified immunity preclude a claim for damages in this action?
ORAL ARGUMENT:
April 28, 2014
COURT BELOW:
United States Court of Appeals for the Eleventh Circuit
Lane is the former director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”); Steve Franks is the former president of CACC. As director of CITY, Lane conducted an audit and discovered that state representative Susan Schmitz was on CITY’s payroll, but had not come to work at the office or performed any work outside the office for CITY. Lane terminated Schmitz’s employment after she refused to report to work. After Schmitz’s termination at CITY, the FBI investigated her for mail fraud and fraud concerning a program receiving federal funds. Lane was subpoenaed and testified at both of Schmitz’s criminal trials. Lane testified that Schmitz had not been reporting to work at CITY, and was only receiving paychecks. Following Schmitz’s criminal trials, Franks terminated Lane. Lane sued Franks in his official and individual capacities, alleging that Franks violated Lane’s First Amendment rights by terminating Lane in retaliation for testifying against Schmitz. The Eleventh Circuit affirmed the district court’s ruling that because Lane’s speech was made in his official capacity as CITY’s director, he failed to state a claim for retaliation. The Supreme Court’s decision will clarify the scope of the First Amendment as it relates to protecting testifying public employees from retaliation by their employers.
QUESTIONS AS FRAMED FOR THE COURT BY THE PARTIES:

Is the government categorically free under the First Amendment to retaliate against a public employee for truthful sworn testimony that was compelled by subpoena and was not a part of the employee’s ordinary job responsibilities?
Does qualified immunity preclude a claim for damages in such an action?
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FACTS
Petitioner Edward Lane is the previous Director of the Community Intensive Training for Youth Program (“CITY”) at Central Alabama Community College (“CACC”), and Respondent Steve Franks is the former president of CACC. In 2006, Lane accepted a probationary position as director of CITY, and, as part of his duties, Lane began an audit of CITY’s finances. While conducting this audit Lane discovered that state representative Suzanne Schmitz was on CITY’s payroll, but had not come to work nor performed any work for the program. Lane was warned by CACC’s former president and lawyer that terminating Schmitz’s employment would negatively affect Lane and CACC. After Schmitz refused to report to work, Lane terminated Schmitz’s employment with CITY. Schmitz then sued, seeking to get her job back. Schmitz also told another CITY employee that she would “get [Lane] back” for terminating her. Schmitz went on to say that if Lane ever requested money from the state legislature Schmitz would tell him “you’re fired.”
Following Schmitz’s termination at CITY, the FBI began investigating Schmitz for mail fraud and fraud regarding a different federally funded program. Lane was subpoenaedand testified at Schmitz’s August 2008 federal criminal trial. Lane testified that Schmitz had not been reporting to work at CITY. Lane also testified that he had several phone conversations with Schmitz where he inquired about Schmitz’s work duties, and that he requested that she start reporting to work daily at CITY’s Huntsville office. Schmitz responded that she had gotten her job through her connections with the Alabama Education Association. In writing, Schmitz responded to Lane’s request by stating she would like to “continue to serve the CITY program in the same manner as [she had] in the past.” In February 2009, Lane testified to all of these facts again at Schmitz’s second criminal trial.
As a result of large budget cuts in 2008, Lane and Franks discussed the possibility of laying off all probationary employees. Franks sent termination letters to Lane and twenty-nine CITY employees, all of whom had served less than three years at CITY. In the following days Franks rescinded all of the terminations except for Lane and one other employee. Franks stated that he did this because he discovered that many CITY employees were not actually probationary.
Lane sued Franks in his official capacity as CACC president and in his individual capacity, alleging that Franks terminated Lane as retaliation for testifying against Schmitz, thereby violating Lane’s First Amendment rights. The district court granted Frank’s motion forsummary judgment, concluding that because Lane’s speech was made in his official capacity as CITY’s director, Lane did not establish a prima facie case for a retaliation claim.The Eleventh Circuit affirmed. The Supreme Court granted certiorari to determine two questions. First, whether under the First Amendment, the government can retaliate against a public employee for testimony that was compelled by subpoena and not part of the employee’s regular job responsibilities. Second, whether qualified immunity precludes a claim for damages in an action such as this.
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DISCUSSION
FIRST AMENDMENT LIMITATION AND IMPLEMENTATION
As amici curiae in support of Petitioner Lane, the American Civil Liberties Union and the American Civil Liberties Union of Alabama (“ACLU”) argue that a witness who gives sworn testimony at a judicial proceeding is always speaking as a “citizen” on a “matter of public concern,” and therefore should be protected by the First Amendment. The ACLU argues that all sworn statements seek to advance the truth and maintain the integrity of the judicial process. Therefore, the ACLU asserts, a public employee’s sworn statement in a judicial processing is a matter of public concern just the same as any citizen. Additionally, the ACLU contends that a case-by-case review of a witness’s testimony is unnecessary because of the inherent importance of truthful testimony in the judicial system. The ACLU argues that a testifying witness should only be concerned with telling the truth, and not whether their testimony will anger their boss. Accordingly, the ACLU would have the Court establish a bright-line rule protecting all sworn statements under the First Amendment.
Respondent Burrow, acting President of the CACC, argues that the Court should not adopt a rule that all testimony counts as citizen speech touching on matters of public concern.Burrow contends that employees who speak in their official capacity cannot be considered to be speaking as citizens because the government is paying them for their speech.Burrow argues that for many government employees, testifying is a routine part of their job. Additionally, Burrow asserts that other employees are reasonably expected to promote their employer’s official position while testifying. Burrow states that “a governor’s chief of staff, the warden of a prison, the head of a state agency” are all examples of government employees that the government is warranted to replace if they are unable to promote the official government position while testifying. Burrow contends that just like private employers, government employers must be able to ensure that their employees testify accurately about the government’s position.
PUBLIC POLICY INCENTIVES FOR QUALIFIED IMMUNITY
In support of Lane, the First Amendment Coalition argues that to encourage truthful testimony, the Court should recognize the longstanding public policy that in-court testimony must be specially protected against civil claims. The Coalition contends that historically, testifying witnesses have been immune from damages suits and that this immunity remains necessary today. The Coalition further contends that the foremost goal of the judicial system is to reach the truth, and that individual damages claims will only obstruct this goal. Specifically, the Coalition asserts that testifying witnesses could be persuaded to alter their testimony for fear of facing liability. The ACLU also contends that sworn statements must have absolute protection from civil liability to accord with the First Amendment. .
Both Petitioner and Respondent agree that Lane has qualified immunity as a testifying witness. However, with respect to Franks’ liability for terminating Lane, Lane argues that qualified immunity does not protect Franks from liability because his conduct violated a clearly established right under the First Amendment. Lane contends that Franks could not have reasonably believed that he was acting in accordance with the law in the Eleventh Circuit when he terminated Lane.
Burrow counters that when Lane was terminated, there was no clear rule in the Eleventh Circuit that the First Amendment protected all government employees’ testimony concerning work-related matters; therefore, Burrow asserts that Franks has qualified immunity. Furthermore, Burrow contends that a qualified immunity defense should not require state officials to predict changes in federal law. Burrow contends that a bright-line rule which allows an officer to follow the law of their circuit, in spite of how it may differ from other precedents, would allow suits like this one to be resolved much earlier. Burrow asserts that the main reason behind the immunity doctrine is to ensure that unviable claims against government officials are resolved early in the litigation process.
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ANALYSIS
The Eleventh Circuit held that Lane’s testimony was made in his capacity as a government employee and therefore was not protected under the First Amendment. Both Petitioner Lane and Respondent Burrow seek reversal of this determination and argue that Lane gave testimony in his capacity as a concerned citizen on a matter of public concern and therefore warrants First Amendment protection. However, the parties disagree about how to determine who was speaking as a citizen and whether the matter was of public concern.Additionally, Lane believes that Franks is not entitled to qualified immunity because it is not available when an official violates a clearly established right—the right to testify— whereas Burrow argues that qualified immunity exists here and in all cases where government officers’ actions were consistent with governing circuit law.
THE SCOPE OF PROTECTED SPEECH FOR GOVERNMENT EMPLOYEES
Both parties agree that the Court should follow its precedent set forth in Garcetti v. Caballos. In Garcetti, the Courtheld that so long as employees are speaking as a citizen about a matter of public concern, employers can only impose speech restrictions that are necessary for the employers to operate efficiently and effectively.
Lane argues that he gave his testimony as a citizen, not as an employee of the State. He contends that he was subpoenaed in his individual capacity as a fact witness and not under Federal Rule of Civil Procedure 30(b)(6), under which the subpoena is served on an organization who then designates the witness. Lane maintains that he—as an individual—had to decide how to respond to the subpoena, and if he had lied or failed to comply, he alone would have borne the repercussions. Moreover, when Lane testified at Schmitz’s second trial, he had already been terminated from his directorial position.
Lane argues that his testimony is protected by the First Amendment because it relates to a matter of public concern—as shown by the content, form, and context of his testimony.Lane points to Connick v. Myers, where the court recognized that speech giving the public information to evaluate the performance of an elected official is of public concern, as is speech exposing a breach of the public trust. Lane argues that his speech fell into the public-concern category because it revealed Schmitz’s corruption and drew attention to the broader public interest of exposing corruption. Moreover, Lane contends that when public employees, and all citizens, respond to subpoenas, they are performing a duty to society and that testimony vindicates a core First Amendment interest.
Respondent Burrow concedes that the Eleventh Circuit erred in holding that Lane’s speech was entirely unprotected. Burrow contends that the Eleventh Circuit did not follow the practical analysis required by Garcetti, but instead applied an overly broad scope and held that an employee’s testimony will not be protected if it involves facts learned on the job.Burrow posits that the Eleventh Circuit’s faulty ruling arose from a misunderstanding about the facts of the Garcetti case. In Garcetti, the Supreme Court held that the First Amendment did not protect the employee’s speech because the employee was paid to write the speech which he then claimed to be protected. However, other Supreme Court holdings show that employee speech does not lose protection simply because it concerns the subject matter of employment. Therefore, the fact-based analysis called for by Garcettishows that Lane’s speech was not made pursuant to his official duties. Additionally, Burrow agrees that although what constitutes a public concern is less than clear, Lane’s testimony obviously fell within the scope as it was integral to exposing and proving Schmitz’s corrupt scheme.
Although, Burrow agrees that Lane testified as a citizen on a matter of public concern, Burrow expresses unease that the Court may follow other circuits and develop a per serule treating all subpoenaed testimony by a government employee as a matter of public concern. Instead of a per se rule, Burrow argues that courts should use the same practical analysis employed in assessing other kinds of employee speech. Although some circuits have held that all speech compelled by a subpoena is necessarily speech by a citizen, Burrow contends that the First Amendment should not prevent retaliation in cases where the government is paying employees who may testify as a routine part of their official duties, such as a police officer testifying about traffic stops, and crime scene technicians testifying about processing evidence. If questions arose as to a testifying police officer’s credibility, the mere fact that he was testifying should not prohibit supervisors from evaluating his performance.
Burrow also claims that Lane’s argument that subpoenaed testimony is vindicating a core First Amendment interest would turn the inquiry into a per se rule. Burrow contends that society’s interest in candid testimony should not automatically make all testimony into a matter of public concern. Rather, Burrow states that courts must evaluate both the content and forum to determine whether the speech regards a matter of public concern.
QUALIFIED IMMUNITY
Burrow argues that even though Lane spoke as a citizen on a matter of public concern, qualified immunity bars a suit against Franks. Burrow argues that under Supreme Court precedent, qualified immunity shields officials from suits for money damages unless the official violated a statutory or constitutional right that was “clearly established” at the time of the challenged conduct.
Burrow contends that it was not “clearly established” that employees’ testimony about facts relating to employment was protected when Franks fired Lane. Burrow claims that the Eleventh Circuit has consistently followed the rule that involuntary testimony about an employee’s job is broadly unprotected by the First Amendment. For example, Burrow citesMorris v. Crow, where the Eleventh Circuit did not allow a police officer’s testimony to qualify for First Amendment protection because the officer was not speaking as a citizen.In Morris, the officer testified that another officer violated office policy when responding to an emergency. Although Burrow admits that the facts of Morris are distinguishable, Burrow claims that its holding—that involuntary testimony regarding an employee’s job is generally unprotected—dictated the result in this case at the circuit-court level.
Lane argues that in determining qualified immunity the appropriate question is whether Franks could have reasonably believed that he was permitted to retaliate against an employee assisting in a federal corruption prosecution. Lane contends that Eleventh Circuit precedent supported Lane on this question at the time he was terminated. Lane points to Martinez v. City of Opa-Locka, where the Eleventh Circuit found an employee of the city’s purchasing department was retaliated against after she testified that a superior had violated bid procedures to purchase furniture for City Hall. In Martinez, the Eleventh Circuit recognized the plaintiff’s First Amendment claim and denied the defendant qualified immunity. Lane contends that because the facts of Martinez align with this case more closely than those of Morris, and because of the virtual unanimity of the other circuits, no public official in 2009 could reasonably believe that retaliation was constitutional in this case.
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CONCLUSION
This case will significantly impact the development of First Amendment law in the area of retaliation claims. Both parties agree that the determination below should be overturned and that Lane’s speech should be given First Amendment protections because he gave his testimony as a private citizen on a matter of public concern. But Burrow expresses concern about the dangers of creating a per se rule treating all subpoenaed testimony from a public employee as a matter of public concern. She thus argues for a fact-based, case-by-case inquiry into the content and context of the testimony at issue. Lane argues that Franks does not have immunity because he violated a constitutional right that was clearly established by case law in the Eleventh Circuit at the time of Lane’s termination, to which Burrow responds that Eleventh Circuit precedent leaves Lane’s testimony unprotected under the First Amendment or— at the very least—that Franks had not violated clearly established circuit law. Burrow contends that government officials should always be able to follow the law of their circuit without having to predict any future rulings by the Court. The outcome of this case will delineate the standard for assessing whether a public employee’s testimony is protected under the First Amendment, as well as a standard for determining when a public employee has qualified immunity.
WRITTEN BY:
Rose Nimkiins Petoskey
Katherine Hinderlie
EDITED BY:
Stephen Wirth
ADDITIONAL RESOURCES:

Ruthann Robson, Constitutional Law Prof Blog, Court Grants Certiorari in Employee First Amendment Case: Lane v. Franks, (Jan. 19, 2014)
Kevin P. McGowan, BNA.com, Court Will Review First Amendment Case of Employee Fired After Trial Testimony, (Jan. 21, 2014)

Posted by Betsy Combier at 12:27 PM

Greta Hawkins, a Teflon Principal, Says No To a Graduation Song, Again

Greta Hawkins, at left

 Coney Island principal bans another ‘USA song’ from graduation

By Susan Edelman

June 8, 2014

LINK

A Coney Island principal has put the kibosh on patriotism — again.

Greta Hawkins and Mike Bloomberg

Greta Hawkins caused a furor when she barred her PS 90 kindergartners from singing “God Bless the USA” at their graduation ceremony in 2012.

Now she has stopped pre-K kids from singing “Stand Up for the Red, White and Blue” at their June 19 moving-up ceremony.

A class of 4-year-olds was rehearsing the song — which they would belt out while marching into the auditorium waving mini-American flags — when Hawkins halted the patriotic parade.

“You didn’t ask permission to do it,” Hawkins scolded the teachers.

Stunned and disappointed, teachers said the simple, rhyming processional was sung to cheers at a pre-K ceremony several years ago.

“It’s a nice, rousing song,” one said. “The parents got up and clapped and yahooed. The kids waved their flags, and it just got everything going.”

With a bouncy beat, the song begins:

Stand up, stand up, for the red, white and blue.

Stand up, stand up, our flag is passing through.

Our country is our land of free, our home of law and liberty.

Stand up, stand up, for the red, white and blue.

Hawkins insisted her refusal to allow the song has nothing to do with patriotism.

In an email to The Post, Hawkins said the song was not on a list the teachers had submitted.

The kids will perform several other tunes during the ceremony, including “You Are My Sunshine” and “What a Miracle Am I.”

“Teachers were reminded in meetings and in communiques not to add or remove from what was already approved weeks ago,” Hawkins wrote.

Hawkins also nixed the little flags, referring to them as unapproved “materials.”

Kids stand for the Pledge of Allegiance each morning at PS 90. But in September, Hawkins eliminated the daily singing of “America the Beautiful.”

In 2012, when Hawkins silenced “God Bless the USA,” the Lee Greenwood ballad also known as “Proud to Be an American,” she reportedly told teachers it might “offend other cultures.” PS 90 is full of immigrants from Mexico, Pakistan, India, Russia and elsewhere.

She later told Department of Education higher-ups that the lyrics were “too grown up” for 5-year-olds, though she left Justin Bieber’s flirty “Baby” on the program. The DOE had her yank that one, too.

Last week, a pre-K mom who learned about the slashed song was upset.

“I’m angry about it,” she said. “It’s the American flag. What’s wrong with that? So many soldiers died for it. Why is she against the red, white and blue?”

Her child sings the lyrics at home, the mom said. She called the waving of flags “wonderful.”

Teachers suggested kids could wave flags from other countries as well, but Hawkins dismissed that idea, they said.

Instead, Hawkins and an assistant principal asked the teachers, “Why can’t you do something more modern?”

As of Friday, the 70th anniversary of D-Day, no new song was approved. The assistant principal said the children would enter the auditorium without singing anything.

Principal Greta Hawkins of PS 90 in Coney Island Tampered With Parent Questionnaires

In the vast ocean of stories sweeping the internet this is not the worst that a Principal has done. But the tampering with surveys, votes and grades is so rampant in NYC schools, I thought Sue's story was worth posting.

Enjoy.

Betsy Combier

Coney Island principal tampered with parent surveys: staffers

By Susan Edelman

, NY POST, March 16, 2014

PS90


 

A Coney Island school principal who caused a furor by refusing to let kindergartners sing “God Bless the USA” at their graduation is in hot water again — this time for allegedly having an aide tamper with parent questionnaires.

Two staffers at PS 90, the Edna Cohen School, say Greta Hawkins instructed an aide to open envelopes holding Department of Education parent surveys and fill in “bubbles” with a pencil.

Greta Hawkins

 

“She was ripping open white envelopes that were sealed and bubbling in answers to the survey,” a teacher told The Post.

The DOE prohibits any breach of the confidentiality of the surveys, which rate schools on “academic expectations,” “safety and respect,” “communication” and “engagement.” They help city officials gauge a school’s environment and principal performance.

Last school year, PS 90 received average and below-average scores on its survey, with 76 percent of parents participating. In its last progress report, for 2011-12, PS 90 earned an overall grade of “B” but an “F” in “school environment” based mainly on parent and teacher surveys.

At parent-teacher conferences Tuesday, parents picking up their children’s report cards were also handed surveys. Hawkins said parents who filled them out on the spot would get two “No Homework Passes” for their kids.

When a parent picked up a report card Wednesday, a source said, Hawkins directed a staffer to give her a survey and tell her “the school has no drugs or gangs.” Last year parents cited concerns about both issues.

Parents get a green envelope containing the survey and a white first-class-postage-paid envelope addressed to a processing center in St. Paul, Minn. Parents are supposed to seal their completed surveys in the white envelope, then mail them or leave them for the school to mail.

Two school staffers said that while Hawkins ran a conference Wednesday, they saw the school’s community assistant, Tiffany Starks, in the main office with a box of survey envelopes. Both staffers said they saw Starks open green and white envelopes.

“She broke open the seal of a first-class envelope and altered surveys completed by the parents,” the teacher said.

A video taken by the teacher shows Starks removing a survey and discarding the green envelope. The two staffers do not know what Starks did with the uncompleted surveys.

Asked why she was marking completed surveys, she replied, “I’m just making sure they did it right,” and said she was “fixing” bubbles not filled in properly, according to the second staffer.

Starks admitted she felt uncomfortable with the task but said, “She [Hawkins] told me to do it, so that’s what I’m doing,” according to the staffer.

Reached Thursday night, Starks declined to comment.

Hawkins did not return a call or e-mail seeking an explanation.

DOE spokesman David Peña said officials will investigate.

Brooklyn principal a ‘bully’

by Michael Hirsch | March 8, 2012 New York Teacher issue

UFT District 21 Representative Judy Gerowitz (left) and Chapter Leader Vicky Giasemis outside PS 90,
where Principal Greta Hawkins has drawn the ire of parents and teachers.

“We have a no-bullying rule for the schools,” parent Heidi Rotondo told Schools Chancellor Dennis Walcott at a District 21 Community Education Council town hall meeting on Jan. 11. “So what are you doing about the principal at PS 90 who’s doing the bullying?”
Walcott dodged the question, insisting he couldn’t deal with “personnel specifics publicly.”
Rotondo was one of more than two dozen parents from Coney Island’s PS 90 who turned out at the town hall meeting to complain about Greta Hawkins, the principal since September 2009 and a New York City Leadership Academy grad.
Parents and teachers want her gone.
Organized as the Action Committee to Save PS 90, the parents produced a two-sided flier for the meeting that contained a long list of accusations against Hawkins, including:

• threatening to report the parents of misbehaving students to the Administration for Children’s Services;
• chronically underreporting safety incidents; and
• refusing to account for $3,600 of Title I parent involvement funds from the previous school year.

Numerous special education complaints filed with the UFT over the past two years document how Hawkins allegedly assigned paraprofessionals to do office work or run errands while students went without special education services, thus violating Individualized Education Program mandates. (The network and the principal responded by making corrections.)
Hawkins also has been criticized by staff and parents for closing the school’s library and selling off its books (at 25 cents per book); shutting the school’s state-of the art computer lab, which was funded by local Councilman Domenic Recchia; and ending instrumental music instruction at a school ironically named the School of Performing Arts.

 The Department of Education reprimanded Hawkins and sent her to sensitivity training after investgators from the DOE’s Office of Equal Opportunity found that Hawkins made offensive racial remarks at a June 2010 faculty meeting.
Nine UFT members who attended the mandatory meeting filed a complaint.

Principal Greta Hawkins  (above, left) has drawn the ire of parents and teachers.In their Sept. 8, 2010, findings, the investigators concluded: “By deliberately differentiating herself, a black Jehovah’s Witness, and the previous principal, white and Jewish, in the context of a mandatory staff meeting addressing rumors and discussing hiring and upcoming changes in the school, Principal Hawkins offended multiple staff members.”

Chapter Leader Vicky Giasemis said that many of the teachers who filed the complaint — even though they were not identified by the Office of Equal Opportunity — were removed from their positions.

Hawkins’ critics say she took a healthy school culture and made it toxic.

“She’s not a boss who pushes the staff to work better. She’s a boss who lies to end your career,” said one longtime school veteran, who asked for anonymity for fear of retaliation.

Hawkins has since singled out the chapter leader for abuse. Giasemis had what she described as a “spotless record” for her first 12 years of teaching. That ended in 2010, when she became the school’s union representative, she said.

“Immediately the retaliation started,” Giasemis said. “All of a sudden I became incompetent and abusive.” Hawkins wrote her up multiple times and gave her a U-rating.

Among the formal grievances pending against Hawkins, District 21 Representative Judy Gerowitz said, was one brought by 13 members accusing Hawkins of micromanaging the format of the lesson plans.

In a case in point, Hawkins’ Jan. 30 school newsletter The Monday Message contained “a fourth reminder” in which she spelled out in minute detail what lesson plans must include. Gerowitz noted that the UFT contract stipulates that supervisors cannot require a particular lesson plan format unless a teacher received a U-rating, or has been given a formal warning of a possible U-rating.

The chapter leader herself has filed grievances charging Hawkins with disciplining her for carrying out union duties.

Still, Giasemis doesn’t heap all the blame on Hawkins.

“It’s the DOE’s doing,” said Giasemis. “They want to break the schools one school at a time.”

 Posted by Betsy Combier at 8:18 AM 1 comment: Links to this post

Eddie Calderon-Melendez, Former CEO of Williamsburg Charter School and Believe HS Network, Pleads Guilty To $70K Tax Fraud

Eddie Calderon-Melendez

Ex-charter school CEO admits $70K tax fraud

 

LINK

Eddie Calderon-Melendez, the founder and former CEO of the beleaguered Williamsburg Charter High School and Believe High Schools Network, has pleaded guilty to receiving over $1.4 million in compensation and unreimbursed personal charges on the school’s credit card from 2005 to 2010, though he never filed a tax return and failed to pay over $70,000 in taxes.

Nearly all of Calderon-Melendez’s compensation during the covered period came, directly or indirectly, from taxpayer-funded charter schools.

As a result of the plea, he admitted to an E felony for repeated failure to file his NY tax returns and will have to pay back all of the taxes he owes, which amounts to over $200,000 including penalties and interest. The New York State Attorney General’s Office also recommended a sentence of incarceration. Sentencing is scheduled for Feb. 22.

The plea follows an indictment secured in Kings County Supreme Court, charging Calderon-Melendez with 11 felony counts: two counts of Repeated Failure to File Personal Income and Earnings Taxes; two counts of Criminal Tax Fraud in the Third Degree; one count of Criminal Tax Fraud in the Fourth Degree; four counts of Tampering with Physical Evidence; one count of Grand Larceny in the Fourth Degree; and one count of Falsifying Business Records in the First Degree.

  

“While earning a six-figure salary funded largely by taxpayer dollars, the defendant robbed the state of New York of much-needed revenue when he failed to pay his taxes for six years in a row,” state Attorney General Eric Schneiderman said. “Today’s plea sends the message that tax cheats and those who violate the public trust will be held accountable.”

Last year, the state Department of Education revoked Williamsburg Charter’s charter because it did not move fast enough to separate itself from Calderone-Melendez, who had been arrested in April. However, Kings County Supreme Court Justice Ellen Spodek ruled that the department’s action was  “riddled with inconsistencies and lacks a certain level of transparency.”

Kelly v Huntington Union Free SD: Protected Speech and Speaking as a Citizen

 
KELLY v. HUNTINGTON UNION FREE SCHOOL DISTRICT NO. 09-CV-2101 (JFB)(MLO).
675 F.Supp.2d 283 (2009)
LINK
Anne KELLY and Christine Lofaro, Plaintiffs,
v.
HUNTINGTON UNION FREE SCHOOL DISTRICT and Huntington Union Free School District Board of Education, Defendants.

United States District Court, E.D. New York.
December 23, 2009.

Steven A. Morelli, Law Office of Steven A. Morelli, P.C., Carle Place, NY, for plaintiff.

Steven C. Stern and Mark A. Radi, Sokoloff Stern LLP, Westbury, NY, for defendants.


MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On May 15, 2009, plaintiffs Anne Kelly and Christine Lofaro (collectively "plaintiffs") brought this action against defendants Huntington Union Free School District and Huntington Union Free School District Board of Education (collectively "defendants") pursuant to 42 U.S.C. § 1983 ("Section 1983") alleging that defendants violated plaintiffs' rights under the First Amendment. Specifically, plaintiffs, who are elementary school teachers, allege that defendants retaliated against them for engaging in various forms of protected speech. Before the Court is defendants' motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, defendants' motion is denied in its entirety.
I. BACKGROUND

For purposes of this motion to dismiss, the Court has taken the facts described below from the Amended Complaint ("Am. Compl."). These facts are not findings of fact by the Court but rather are assumed to be true for the purpose of deciding this motion and are construed in a light most favorable to plaintiffs, the non-moving parties.
A. FACTS
1. THE AMENDED COMPLAINT

Plaintiffs are tenured and highly credentialed elementary school teachers, both of whom have received the highest rankings in their evaluations. (Am. Compl. ¶¶ 8-9, 12-13.) Plaintiff Anne Kelly has been an elementary school teacher for about 30 years. (Id. ¶ 8.) Prior to the events that are the subject of this complaint, Kelly had never had any problems with the administration and never received a complaint from a parent. (Id. ¶ 11.) Plaintiff Christine Lofaro has been an elementary school teacher for 17 years. (Id. ¶ 8.) Lofaro is also Vice President of the Associated Teachers of Huntington, Intermediate Level (hereinafter "the Union"), a position she has held for about six years. (Id. ¶ 12.) As Vice President of the Union, Lofaro, inter alia, attends various meetings and classes, takes part in the negotiation process between the Union and the administration, and assists fellow teachers in resolving grievances with the administration. (Id. ¶ 14.)

In or about 1990, Kelly began teaching a gifted and talented program called the Scholastic Enrichment and Resource for Children in Huntington (hereinafter "SEARCH"). (Id. ¶ 17.) Lofaro began teaching for the SEARCH program in or about 1996. (Id.) In 2004, plaintiffs obtained special teaching certifications that were required to continue teaching in the SEARCH program. (Id. ¶¶ 18, 22.) The goal of the SEARCH program, which began in 1980 (id. ¶ 19), is to provide small group instruction to students who are in the top ten percent of their grade's population and to provide a challenging and stimulating curriculum different from that of normal classrooms. (Id. ¶ 20.) At the time in question, there were 2.5 SEARCH teachers, including Kelly and Lofaro, and one Chairperson of the SEARCH program, Maryann Daly (hereinafter "Daly").
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(Id. ¶ 22.) Plaintiffs allege that they developed and enhanced the program "all on their own" and that the program's success "can only be attributed to Kelly and Lofaro's hard work." (Id. ¶¶ 23-24.) Plaintiffs have gotten nothing but positive feedback from their students' parents. (Id. ¶ 25.)

In or about August 2007, Lofaro applied for the position of Chairperson of the SEARCH program. (Id. ¶ 26.) After the interview, the Assistant Superintendent of personnel told Lofaro that her "edge" had come out in the interview. (Id. ¶ 27.)

Plaintiffs allege that throughout the time in which Daly was a teacher and then Chairperson of the SEARCH program, Daly engaged in inappropriate conduct that was detrimental to the SEARCH program and that was sometimes unethical. (Id. ¶¶ 28-29.) Specifically, plaintiffs allege that Daly: did not attend meetings to discuss the curriculum; authorized a mass mailing to the parents of SEARCH students to support a Board of Education candidate; prohibited plaintiffs from attending a class trip on a boat (resulting in Daly chaperoning 56 students by herself); and tutored students prior to their taking a test for entrance into the SEARCH/Math Olympiad Program. (Id. ¶ 30.)

In or about August 2007, plaintiffs met with the Assistant Superintendent to discuss Daly's alleged misconduct and its negative impact on the SEARCH program. (Id. ¶ 31.) The Assistant Superintendent did not offer guidance or address the issue and instead stated that he wished plaintiffs would "learn to play nice in the sandbox." (Id. ¶ 32.)

After the August 2007 meeting, Daly continued to engage in alleged misconduct. Specifically, Daly provided no guidance to plaintiffs about the second grade program and did not attend meetings that she had scheduled, forcing plaintiffs to write the curriculum by themselves. (Id. ¶ 33.) This conduct continued over the next two years. (Id.) Plaintiffs continued to complain to defendants about Daly's alleged misconduct and its negative impact on the SEARCH program and its students. (Id. ¶ 34.) Defendants refused to answer plaintiffs' complaints. (Id.)

On February 26, 2009, plaintiffs were summoned to a meeting with the Assistant Superintendent of Curriculum, Barbara Lacey. (Id. ¶ 36.) Lacey informed each plaintiff separately that two of the 2.5 SEARCH teacher positions were going to be eliminated in the draft budget for the 2009-10 school year. (Id. ¶ 37.) Lofaro attempted to ask questions regarding this information, but Lacey did not answer, saying only that it was defendants' decision to eliminate the two SEARCH positions. (Id. ¶ 38.) Plaintiffs were "shocked and distraught" upon hearing this information. (Id. ¶¶ 39-41.) Plaintiffs were not told at any time that they could not reveal the information regarding the elimination of the two SEARCH positions or that the information was confidential. (Id. ¶ 44.)

At dismissal time on February 26, 2009, Kelly informed her students that the SEARCH program was being changed and that two SEARCH positions were being eliminated. (Id. ¶¶ 42, 45.) Kelly also told the students to tell their parents about this issue and to ask their parents to attend the next Board of Education meeting to speak out against the changes to the SEARCH program. (Id.) Plaintiffs then went to the Woodhull Intermediate School, where Lofaro informed her students that there would be a significant change in the SEARCH program for the next year, and that plaintiffs' SEARCH positions were being eliminated. (Id.¶ 43.) Lofaro also told the students that she was very upset about this change to the program, and that it was important for the students' parents to know about the fate of the program. (Id.) Plaintiffs believed that it was important to tell the students about the changes
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to the SEARCH program because it "directly affected their education" and believed that it was important to tell the students' parents "so they could voice their opposition to the Board and be informed about the future of their own child's education." (Id. ¶¶ 51-52.)

On March 3, 2009, Lofaro was summoned to the principal's office, where she was questioned by Dr. Ken Card about what she had told her students on February 26. (Id. ¶ 45.) After hearing Lofaro's explanation, Card responded that the administration was "furious" and that Lofaro had "crossed the line." (Id. ¶ 46.) Card also stated that the administration and the Board of Education were viewing Lofaro's actions as "political." (Id.) Lofaro stated that her actions were not political but rather that she was upset about the changes to the SEARCH program and that it was important to inform her students and the students' parents. (Id.) Card said that there were numerous telephone calls from angry parents, that Lofaro would face some sort of discipline for her actions, and that the administration and the Board were going to "make an example" of her. (Id. ¶ 47.)

On March 4, 2009, Mary Stokkers, principal of Jack Abrams Intermediate met with Kelly, questioned her about her actions on February 26, and repeated everything that had been said to Lofaro. (Id. ¶ 48.) At this meeting, Kelly was informed for the first time that she should not have disclosed the information regarding the elimination of the two SEARCH positions to her students. (Id. ¶ 48.)

At some point after February 26, plaintiffs were threatened with "3020a proceedings." (Id. ¶ 49.) Plaintiffs were told that they could avoid such disciplinary proceedings if they agreed to pay a monetary fine, transfer to different positions, and forfeit their rights to grieve such a transfer despite their rights under the collective bargaining agreement. (Id.) Plaintiffs declined the offer. (Id. ¶ 50.)

At some point after February 26, parents of students in the SEARCH program attended the next Board meeting and were vocal about the changes to the SEARCH program. (Id. ¶ 56.) While the program was restored (id.), plaintiffs were still removed from their positions. (Id. ¶ 57.)

At some point after February 26, plaintiffs informed defendants that they had retained counsel and intended to commence legal proceedings if a resolution could not be reached. (Id. ¶ 58.) Defendants subsequently brought 3020-a disciplinary charges against plaintiffs for "behavior unbecoming a teacher, neglect of duty, and insubordination." (Id. ¶ 58.) Plaintiffs allege that these proceedings were brought in retaliation for their complaints about Daly and for their February 26 speech to students, their statements about obtaining counsel and commencing legal proceedings, and for Lofaro's "engaging in protected union activities." (Id.¶¶ 34, 58.) Plaintiffs allege that they have suffered damages as a result of defendants' actions. (Id. ¶ 59.)
2. DEFENDANTS' AFFIDAVITS

In connection with their motion to dismiss, defendants submitted several affidavits from teachers who describe some of the circumstances of plaintiffs' February 26 speech to students about the SEARCH program.1
B. PROCEDURAL HISTORY

Plaintiffs filed the complaint in this action on May 15, 2009. Plaintiffs filed an amended complaint on July 17, 2009. On September 18, 2009, defendants filed the instant motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs submitted a memorandum
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in opposition on November 2, 2009. Defendants replied on December 3, 2009. Oral argument was held on December 18, 2009. This matter is fully submitted.

II. STANDARD OF REVIEW

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). The plaintiff must satisfy "a flexible `plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir.2007), rev'd on other grounds sub nom. Ashcroft v. Iqbal, ___ U.S. ___,129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly,550 U.S. 544, 563, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955.

The Supreme Court recently clarified the appropriate pleading standard in Ashcroft v. Iqbal, setting forth a two-pronged approach for courts deciding a motion to dismiss. See 129 S.Ct. at 1937. The Court instructed district courts to first "identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1950. Though "legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. Second, if a complaint contains "well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 1949 (quoting and citing Twombly,550 U.S. at 556-57, 127 S.Ct. 1955).
III. DISCUSSION

As an initial matter, the Court cannot consider defendants' evidentiary submissions in deciding the instant motion to dismiss. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007) (In deciding a motion to dismiss, "the district court is normally required to look only to the allegations on the face of the complaint."). Defendants' affidavits are not referred to in the Amended Complaint nor are they integral to the Amended Complaint. See id.; Coggins v. County of Nassau, No. 07-cv-3624, 2008 WL 2522501, at *6-7 (E.D.N.Y. June 20, 2008). The Court also declines to convert the instant motion into a motion for summary judgment. "Federal courts have `complete discretion to determine whether or not to accept the submission of any material beyond the pleadings' offered in conjunction with a Rule 12(b)(6) motion, and thus complete discretion in determining whether to convert the motion to one for summary judgment." Carione v. United States, 368 F.Supp.2d 186, 191 (E.D.N.Y.2005) (citations omitted). Plaintiffs in this action are entitled to discovery before having to oppose a motion for summary judgment.

Plaintiffs bring their First Amendment retaliation claims pursuant to Section 1983.2 Section 1983 "is not itself a source of substantive rights, but a method for
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vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes." Baker v. McCollan, 443 U.S. 137, 145 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). For claims under Section 1983, a plaintiff must prove that "(1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir.1999) (citation omitted).

Here, for the purposes of this motion, the parties do not dispute that defendants were acting under color of state law. The question presented, therefore, is whether defendants' conduct deprived plaintiffs of the rights they assert under the First Amendment. Specifically, plaintiffs claim that they were retaliated against for: (1) their complaints to defendants regarding alleged misconduct by Daly; (2) their February 26 speech to students regarding changes to the SEARCH program; and (3) their statement that they had retained counsel and intended to commence legal proceedings. Lofaro also alleges that defendants retaliated against her for engaging in protected union activities.

The Second Circuit has "described the elements of a First Amendment retaliation claim in several ways, depending on the factual context." Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008). Where, as here, public employees bring retaliation claims based on the First Amendment, the plaintiffs must prove that: "(1) they engaged in constitutionally protected speech because they spoke as citizens on a matter of public concern; (2) they suffered an adverse employment action; and (3) the speech was a `motivating factor' in the adverse employment decision." Skehan v. Village of Mamaroneck, 465 F.3d 96, 106 (2d Cir.2006), overruled on other grounds by Appel v. Spiridon, 531 F.3d 138, 140 (2d Cir.2008). However, defendants may still "escape liability if they can demonstrate that either (1) the defendant would have taken the same adverse action against the plaintiff regardless of the plaintiff's speech; or (2) the plaintiff's expression was likely to disrupt the government's activities and that the harm caused by the disruption outweighs the value of the plaintiff's expression." Skehan, 465 F.3d at 106. The latter is known as the "Pickering balancing test" and is a question of law for the Court. See Cobb v. Pozzi, 363 F.3d 89, 102 (2d Cir.2004) (referring to Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Even if the government prevails on the Pickering test, plaintiff may still succeed by showing that the adverse action was in fact motivated by retaliation and not by any fear of a resultant disruption. See Reuland v. Hynes, 460 F.3d 409, 415 (2d Cir.2006).

Defendants contend that plaintiffs have failed to state a claim because: (1) they did not speak as citizens on matters of public concern; (2) they did not face adverse employment action; and (3) there is no causal connection between their complaints about Daly and any alleged adverse action.3 Defendants also argue under Pickering,
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with respect to plaintiffs' February 26 speech to students, that even if plaintiffs did speak as citizens on matters of public concern, defendants' interest in regulating the speech outweighs plaintiffs' interests in the speech. For the reasons set forth below, defendants' motion to dismiss is denied in its entirety.

A. SPEECH AS A CITIZEN
1. LEGAL STANDARD

As the Second Circuit recently emphasized, "[i]t is established law in this Circuit that, `[r]egardless of the factual context, we have required a plaintiff alleging retaliation to establish speech protected by the First Amendment.'" Sousa v. Roque, 578 F.3d 164, 169-70 (2d Cir.2009) (quoting Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d Cir.2008)). More specifically, "[t]o determine whether or not a plaintiff's speech is protected, a court must begin by asking `whether the employee spoke as a citizen on a matter of public concern.'" Sousa, 578 F.3d at 170 (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). It is critical to note that this test contains two separate requirements — namely, (1) that the employee speak as a citizen, and (2) that the employee speak on a matter of public concern. If either of these requirements is not met, then plaintiff's First Amendment retaliation claim must fail as a matter of law. See Sousa, 578 F.3d at 170 ("If the court determines that the plaintiff either did not speak as a citizen or did not speak on a matter of public concern, `the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.'" (quoting Garcetti, 547 U.S. at 418, 126 S.Ct. 1951)).

In Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the United States Supreme Court clarified the threshold inquiry for a First Amendment retaliation claim in the public employment context. To determine whether the speech at issue is constitutionally protected, the court must first decide whether the plaintiff was speaking as a "citizen," rather than as a public employee. Id. at 421, 126 S.Ct. 1951. "If the answer is `no,' then no First Amendment claim arises, and that ends the matter." Caraccilo v. Village of Seneca Falls, N.Y., 582 F.Supp.2d 390, 405 (W.D.N.Y.2008). In Garcetti, the Supreme Court explained that:[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.

547 U.S. at 421-22, 126 S.Ct. 1951.

Garcetti, however, did not "articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate." 547 U.S. at 424, 126 S.Ct. 1951. Although the Supreme Court did not set forth specific criteria for determining when speech is made pursuant to an employee's officials duties, it instructed that the inquiry "is a
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practical one" because "the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951. It also noted that speech by a public employee retains some possibility of First Amendment protection when it "is the kind of activity engaged in by citizens who do not work for the government." Id. at 423, 126 S.Ct. 1951 (emphasis added). To illustrate its point by way of comparison, Garcetti "also list[ed] examples of prototypical protected speech by public employees, namely `mak[ing] a public statement, discuss[ing] politics with a coworker, writ[ing] a letter to newspapers or legislators, or otherwise speak[ing] as a citizen.'" Davis v. McKinney, 518 F.3d 304, 311-12 (5th Cir.2008) (quoting Spiegla v. Hull, 481 F.3d 961, 967 (7th Cir.2007)).

Since Garcetti, some lower courts have developed more guidelines for determining whether speech is made pursuant to a public employee's official duties. Although none of the following factors is dispositive, the Court may consider: the plaintiff's job description; the persons to whom the speech was directed; and whether the speech resulted from special knowledge gained through the plaintiff's employment. See Caraccilo, 582 F.Supp.2d at 405. As indicated by Garcetti, two relevant factors that, considered in isolation, are not dispositive are whether the speech occurs in the workplace and whether the speech concerns the subject matter of the employee's job. See 547 U.S. at 420-21, 126 S.Ct. 1951; accord Abdur-Rahman v. Walker, 567 F.3d 1278, 1282 (11th Cir.2009). Again, in general, "[a]lthough there is no simple checklist or formula by which to determine whether the employee was speaking as a private citizen or as a public employee . . . `the cases distinguish between speech that is the kind of activity engaged in by citizens who do not work for the government and activities undertaken in the course of performing one's job.'" Caraccilo, 582 F.Supp.2d at 410 (quoting Davis, 518 F.3d at 312-13) (additional quotation marks and citation omitted).

Again, the Court recognizes that none of the aforementioned factors, including the motivation by the plaintiff in engaging in the speech, is dispositive. See, e.g., Caraccilo, 582 F.Supp.2d at 412 ("[T]he fact that plaintiff's speech to these officials may have related in some way to her job is not dispositive of whether it was made pursuant to her job duties or that it was unprotected[.]") (emphasis in original); Davis, 518 F.3d at 313 n. 3 ("We recognize that it is not dispositive that a public employee's statements are made internally.").

2. APPLICATION

Defendants argue that when plaintiffs complained about Daly's alleged misconduct, they did so not as citizens, but rather pursuant to their official duties.4
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Therefore, defendants argue that the speech is not protected as a matter of law. However, the Court cannot conclude at this stage of the proceedings that plaintiffs' speech about Daly was made pursuant to official duty. Plaintiffs allege that they "had a meeting with the Assistant Superintendent" to discuss Daly's alleged misconduct, as discussed above. (Am. Compl. ¶ 31.) When the alleged misconduct continued, plaintiffs "continued to complain to Defendants." (Id. ¶ 34.) Based solely on the allegations in the Amended Complaint, and drawing all reasonable inferences in the light most favorable to plaintiffs, the Court cannot rule as a matter of law that plaintiffs' speech about Daly was made pursuant to plaintiffs' official duties.5 The inquiry under Garcetti is "a practical one," 547 U.S. at 424-25, 126 S.Ct. 1951, and requires consideration of various facts that are not before the Court on this motion to dismiss. For instance, there is no allegation in the Amended Complaint with respect to plaintiffs' job descriptions or the specific circumstances of plaintiffs' complaints. The fact that plaintiffs' speech related to their jobs is not dispositive. See Garcetti,547 U.S. at 421, 126 S.Ct. 1951 ("The [speech] concerned the subject matter of [plaintiff's] employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker's job." (citing Pickering, 391 U.S. at 573, 88 S.Ct. 1731)). To hold that plaintiffs' discussion with the Assistant Superintendent and continued complaints were pursuant to official duty, without any further detail, would be to hold that any complaints to a supervisor regarding alleged misconduct by a co-worker would be unprotected. The Court rejects this broad proposition. See, e.g., Sassone v. Quartararo, 598 F.Supp.2d 459, 465 (S.D.N.Y.2009) (denying motion to dismiss and finding that plaintiff teachers' complaints to supervisors about other teachers' misconduct could be speech made "as citizens"); see also McLaughlin v. Pezzolla, No. 06-CV-0376, 2007 WL 676674, at *8 (N.D.N.Y. Feb. 28, 2007) (denying motion to dismiss and holding that "the determination of the scope of Plaintiff's official duties, and whether her speech was made pursuant to, or outside of, these duties, must await a different day").

B. MATTER OF PUBLIC CONCERN

"The Supreme Court has defined `a matter of public concern' as one that `relat[es] to any matter of political, social, or other concern to the community.'" Sousa v. Roque, 578 F.3d 164, 170 (2d Cir.2009) (quotingConnick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). "The inquiry into the protected status of speech is one of law, not fact." Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684. The Second Circuit has held that "[a]n employee who complains solely about his own dissatisfaction with the conditions of his own employment is speaking upon matters only of personal interest. We make clear today, however, that it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern." Sousa, 578 F.3d at 174 (citation and quotation marks omitted). In Sousa,the Second Circuit reiterated that "a speaker's motive is not dispositive in determining whether his or her speech addresses a matter of public
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concern." Sousa, 578 F.3d at 173. Instead, "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684.
Defendants argue that none of plaintiffs' speech addressed matters of public concern. The Court disagrees. With respect to plaintiffs' complaints about Daly, plaintiffs allege that they complained to defendants that Daly, inter alia, improperly authorized a mass mailing to support a Board of Education candidate, endangered students' safety by preventing plaintiffs from chaperoning a field trip on a boat, and improperly tutored students prior to their taking an exam. (Am. Compl. ¶ 30.) Although defendants argue that these are nothing more than job-related complaints by disgruntled employees, the Court cannot conclude at this stage that the speech does not address matters of public concern. To the extent the mass mailing in support of a Board candidate was an improper political activity, it can reasonably be considered a matter of public concern. See Connick, 461 U.S. at 149, 103 S.Ct. 1684 (holding that plaintiff's speech about whether government employees were pressured to participate in political campaign touched on a matter of public concern). Similarly, plaintiffs' speech regarding Daly's alleged misconduct in tutoring students touches on the quality of public education, which is also a matter of public concern. See Bernheim v. Litt,79 F.3d 318, 325 (2d Cir.1996) (reversing district court's granting of motion to dismiss where plaintiff teacher complained about principal's misrepresentation of students' test scores and its effect on "the quality of education provided by the public school"); Fierro v. City of New York, 591 F.Supp.2d 431, 443 (S.D.N.Y.2008) ("The conduct and character of teachers and principals at a public school . . . reasonably qualifies as a matter that concerns the community."), rev'd on other grounds by Fierro v. City of New York,341 Fed.Appx. 696 (2d Cir. 2009). Therefore, the Court cannot conclude at this stage of the proceedings that plaintiffs' complaints regarding Daly did not address matters of public concern. See Rehman v. State Univ. of N.Y. at Stony Brook, 596 F.Supp.2d 643, 656 (E.D.N.Y.2009) ("The Court finds that the plaintiff's complaints to . . . the President of SUNY Stony Brook, and others regarding billing practices, safety concerns, and credentialing of department members . . . were related to matters of public welfare, rather than merely to his own grievances, and are sufficient to survive the present motion to dismiss.").

Defendants also argue that plaintiffs' February 26 speech to students about the SEARCH program did not address a matter of public concern. However, plaintiffs allege that Kelly told the students to "ask their parents to attend the next Board of Education . . . meeting to speak out against changes to the SEARCH program." (Am. Compl. ¶ 42.) Plaintiffs allege that Lofaro told students about "a significant change" to the SEARCH program (id. ¶ 43) and that "she thought it was important for their parents [to] know about the fate of the program." (Id.) Taking plaintiffs' allegations as true, therefore, the speech related to important changes to a gifted education program and encouraged students' parents to participate in the next Board of Education meeting. Speech about the quality of an educational program can be a matter of public concern.See McGuire v. Warren, 207 Fed.Appx. 34, 36 (2d Cir.2006) (holding that speech by a teacher about the proper method for providing educational services to special needs children "might well be a matter of public interest") (collecting cases). In addition, as a general matter, speech that advocates for parental participation
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in school government addresses a matter of public concern. See, e.g., Hurdle v. Bd. of Educ. of City of N.Y., No. 01 Civ. 4703, 2002 WL 31834454, at *2 (S.D.N.Y. Dec. 16, 2002) ("[T]he lack of input [regarding a plan to address student performance] from the school staff and community, including parents of school children [at the school], into the formulation of the [plan] relates to matters of public concern." (citingPickering, 391 U.S. at 574, 88 S.Ct. 1731)); see also Milliken v. Bradley, 418 U.S. 717, 742, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) ("[L]ocal control over the educational process affords citizens an opportunity to participate in decision-making, permits the structuring of school programs to fit local needs and encourages `experimentation, innovation, and a healthy competition for educational excellence.'" (quotingSan Antonio Ind. Sch. Dist. v. Rodriguez, 411 U.S. 1, 50, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973))).

Defendants argue, in response, that plaintiffs' February 26 speech did not implicate a matter of public concern because the speech "related to the change in their own teaching assignments at the school."6(Defendants' Mem. of Law in Support of Motion to Dismiss (hereinafter "Defs.' Br.") at 10.) The Court rejects this argument. As discussed above, neither a plaintiff's motive for the speech nor the fact that a plaintiff's speech relates to his job is dispositive in determining whether the speech addresses a matter of public concern. See Pickering, 391 U.S. at 572, 88 S.Ct. 1731 ("Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal."); Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 166 (2d Cir.2006) ("We do not doubt that [plaintiff] spoke partly to protect his job and shift blame to other administrators. But personal interests frequently induce speech that is nonetheless of public concern."). Defendants also argue that the proposed changes to the SEARCH program were not significant or a matter of public concern and that plaintiffs' assertions to the contrary are based on plaintiffs' "conclusory opinions" about plaintiffs' role in the program. (Defs.' Br. at 10 n. 3.) Plaintiffs allege that two of the 2.5 SEARCH positions were being eliminated and that plaintiffs' own work was critical to the program. (Am. Compl. ¶¶ 23, 37.) The Court cannot resolve this factual issue on a motion to dismiss. Therefore, the Court concludes that plaintiffs have adequately alleged that their speech addressed matters of public concern.7
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C. ADVERSE ACTION

"In the context of a First Amendment retaliation claim . . . retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action." Zelnick v. Fashion Inst. of Tech., 464 F.3d 217, 225 (2d Cir.2006) (internal quotation omitted). "Adverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand." Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999). However, "lesser actions may also be considered adverse employment actions." Id.; see also Phillips v. Bowen, 278 F.3d 103, 109 (2d Cir. 2002) ("Our precedent allows a combination of seemingly minor incidents to form the basis of a constitutional retaliation claim once they reach a critical mass." (citing Bernheim, 79 F.3d at 325)). Indeed, in the education context, "[a]dverse employment actions may include negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods, failure to process teacher's insurance forms, transfer from library to classroom teaching as an alleged demotion, and assignment to classroom on fifth floor which aggravated teacher's physical disabilities."Zelnik, 464 F.3d at 226 (quoting Morris, 196 F.3d at 110).

Plaintiffs in this case have adequately alleged that they faced adverse employment action. After the August 2007 meeting with the Assistant Superintendent, plaintiffs allege that they "were forced to write the curriculum completely by themselves." (Am. Compl. ¶ 33.) On February 26, 2009, plaintiffs were told that their teaching positions with the SEARCH program were being eliminated. (Id. ¶¶ 36-38.) After their speech to students, plaintiffs were threatened with disciplinary proceedings.8 (Id. ¶ 49.) Plaintiffs were eventually removed from their SEARCH positions (id. ¶ 57) and disciplinary proceedings were commenced against them. (Id. ¶ 58.) Although defendants argue that these allegations only relate to minor incidents and not adverse actions, the Court disagrees. For instance, a change in teaching responsibilities can constitute an adverse action if it is "materially less prestigious, materially less suited to [a plaintiff's] skills and expertise, or materially less conducive to career advancement." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 641 (2d Cir.2000) (collecting cases). In addition, "the institution of disciplinary proceedings is sufficient in this circuit to constitute an adverse employment decision." Skehan, 465 F.3d at 106 (citing Burkybile v. Bd. of Educ., 411 F.3d 306, 313-14 (2d Cir.2005)). Accordingly, plaintiffs have adequately alleged an adverse action.

D. CAUSAL CONNECTION

Plaintiffs must also demonstrate a "`causal connection . . . sufficient to warrant the inference that the protected speech was a substantial motivating factor in the adverse employment action.'" Cotarelo
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v. Sleepy Hollow Police Dep't, 460 F.3d 247, 251 (2d Cir.2006) (quoting Blum v. Schlegel, 18 F.3d 1005, 1010 (2d Cir. 1994)). A plaintiff can demonstrate this causal connection "indirectly `by showing that the protected activity was followed by adverse treatment in employment, or directly by evidence of retaliatory animus.'" Cobb v. Pozzi, 363 F.3d 89, 108 (2d Cir. 2003) (quoting Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999)). Of course, the Court recognizes that the Second Circuit "has not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action," Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir.2001), and courts must carefully consider the time lapse in light of the entire record. See, e.g., Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir.1980) (holding eight-month gap between EEOC complaint and retaliatory action suggested a causal relationship); see also Richardson v. N.Y.S. Dep't of Corr. Serv., 180 F.3d 426, 446-47 (2d Cir.1999) (holding abusive acts within one month of receipt of deposition notices may be retaliation for initiation of lawsuit more than one year earlier), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
Plaintiffs in this action have adequately alleged a causal connection between their speech and the alleged adverse actions. Plaintiffs clearly have alleged evidence of retaliatory animus against them for their February 26 speech to students regarding the SEARCH program,9 and defendants do not argue this point. Instead, defendants argue that plaintiffs have failed to allege a causal connection between the alleged adverse actions and plaintiffs' complaints about Daly.

Plaintiffs first complained about Daly in August 2007. (Am. Compl. ¶ 31.) When plaintiffs made this complaint, they were told by the Assistant Superintendent to "learn to play nice in the sandbox."10 (Id. ¶ 32.) Plaintiffs allege that, thereafter, Daly's misconduct grew worse, forcing them "to write the [second grade] curriculum completely by themselves." (Id. ¶ 33.) Plaintiffs do not specifically allege any other adverse action until February 2009, when they were informed that their SEARCH positions were being eliminated. (Id. ¶¶ 36-38.) Defendants argue that the length of this time period between plaintiffs' August 2007 complaints about Daly and the February 26, 2009 meeting in which plaintiffs were told that their SEARCH positions were being eliminated defeats a causal connection as a matter of law. The Court disagrees. First, plaintiffs allege not only that they complained about Daly in August 2007 but also that they "continued to complain to Defendants about Daly's misconduct." (Id. ¶ 34.) In addition, plaintiffs argue that Daly's misconduct, which forced them to do additional work, was itself retaliatory. Given the allegations regarding plaintiffs' continued complaints, defendants' reaction to those complaints, and Daly's forcing plaintiffs to do more work, the Court concludes that plaintiffs have adequately alleged a causal connection between their complaints and the alleged adverse actions. See Shanks v. Vill. of Catskill Bd. of Trs., 653 F.Supp.2d 158,
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168 (N.D.N.Y.2009) ("[T]he court rejects defendants' contention that the length of time between [plaintiff's] January 2006 complaint and the December 2008 termination breaks the potential causal connection between the protected speech and the discharge. Despite the delay between [plaintiff's] complaint and his termination, there is abundant evidence that defendant's harassing and threatening conduct continued unabated throughout this period and was related to the . . . complaints." (citing Mandell v. County of Suffolk, 316 F.3d 368, 384 (2d Cir.2003))).
E. PICKERING BALANCING TEST11

Defendants also argue that, even if plaintiffs have adequately alleged that their February 26 speech to students was protected, their claims must be dismissed under the Pickering balancing test.12 UnderPickering, if plaintiffs' otherwise protected speech disrupts the government's activities such that the harm caused by the disruption outweighs the value of plaintiffs' speech, the government can regulate that speech.See Skehan, 465 F.3d at 106; Cobb, 363 F.3d at 101. Defendants argue that their interest in regulating teachers' speech to students during class time about personnel decisions outweighs any of plaintiffs' interests in the speech. The analysis under Pickering, however, is a "fact-sensitive" inquiry. Bd. of County Comm'rs, Wabaunsee County, Kansas v. Umbehr, 518 U.S. 668, 677, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). In this case, there is a factual dispute surrounding the circumstances of plaintiffs' February 26 speech to students. Plaintiffs allege that the speech was at "dismissal time" (Am. Compl. ¶ 42) and defendants have submitted affidavits to contest this allegation. Given this factual dispute, the Court cannot determine whether plaintiffs' speech was disruptive or whether the harm caused by the disruption outweighed plaintiffs' interest in the speech. See Sassone, 598 F.Supp.2d at 468 ("The Court does not see how [defendant] could make such a showing [under Pickering], considering that the Court is limited to consideration of the Amended Complaint."). Furthermore, even if defendants did prevail under the Pickeringtest, plaintiffs could still proceed if they showed that defendants were motivated by retaliation and not by any disruption caused by the speech. See Reuland, 460 F.3d at 415. The factual question of defendants' motivation is also inappropriate at this time. See Sheppard v. Beerman, 18 F.3d 147, 151 (2d Cir.1994) ("[T]he motive behind [plaintiff's] firing in his retaliation claim is clearly a question of fact. Because this question is in dispute, it was improper for the district court to answer it on a motion for dismissal on the pleadings." (citation omitted)).

In sum, given the allegations in the Amended Complaint, plaintiffs have alleged a plausible First Amendment Section 1983 claim that survives a motion to dismiss.
IV. CONCLUSION

For the reasons set forth above, defendants' motion to dismiss the Amended Complaint is denied in its entirety. The
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case will proceed with discovery under the direction of Magistrate Judge Orenstein.

SO ORDERED.

FOOTNOTES
1. For the reasons discussed infra, the Court declines to consider this evidence.
2. In the Amended Complaint, plaintiffs also make passing reference to defendants' alleged conduct violating "all related provisions" of the New York Constitution. (Am. Compl. ¶ 61.) In their Memorandum of Law in Opposition to Defendants' Motion to Dismiss (hereinafter "Pls.' Br."), plaintiffs refer to the Fifth and Fourteenth Amendments as well as New York State Executive Law § 290 et seq., and Title 8 of the New York City Administrative Code. (Pls.' Br. at 2.) At oral argument, however, plaintiffs' counsel clarified that they only allege claims under the First Amendment pursuant to Section 1983.
3. Defendants also argue that plaintiff Lofaro has failed to allege First Amendment retaliation based on her union activities. Specifically, defendants argue that plaintiffs have not specified the union activities upon which any such retaliation was based nor have plaintiffs alleged a causal connection between those activities and any adverse action. Because the Court concludes that plaintiffs have properly alleged First Amendment retaliation based on their other speech, the Court need not address this argument at the motion to dismiss stage. See Morey v. Somers Central Sch. Dist., No. 06 Civ. 1877, 2007 WL 867203, at *12 (S.D.N.Y. Mar. 21, 2007) (denying motion to dismiss) ("[B]ecause plaintiff sufficiently pleaded a causal connection with regard to his statements concerning the asbestos, he has established a prima facie case for First Amendment retaliation, and we need not address this [union activity] issue any further.").
4. Defendants do not argue that plaintiffs' February 26 speech to students about the SEARCH program was made pursuant to their official duties, and so the Court need not address this issue. The Court notes that "[i]t is an open question in this Circuit whether Garcetti applies to classroom instruction." Panse v. Eastwood, 303 Fed.Appx. 933, 934 (2d Cir.2008) (summary order). In any event, plaintiffs allege that when speaking to the students, "Kelly and Lofaro were not speaking pursuant to their duties" (Am. Compl. ¶ 54), and that Kelly spoke to her students not during class time but at "dismissal time" (id. ¶ 42). Accordingly, given these allegations, the Court cannot decide whether plaintiffs spoke as citizens or pursuant to official duty at the motion to dismiss stage. See McLaughlin v. Pezzolla, No. 06-CV-0376, 2007 WL 676674, at *8 (N.D.N.Y. Feb. 28, 2007) (denying motion to dismiss on issue of plaintiffs' official duty).
5. Although defendants cite Weintraub v. Board of Education of the City of New York, 489 F.Supp.2d 209(E.D.N.Y.2007) in support of their argument that the Court should conclude that plaintiffs spoke pursuant to their official duties, Weintraub involved a motion for summary judgment. See id. at 211. In the instant case, the Court has no factual record to consider and, based solely on the Amended Complaint, the Court cannot conclude that plaintiffs spoke pursuant to official duty.
6. Defendants also make the somewhat confusing argument that plaintiffs cannot claim that the changes to the SEARCH program addressed a matter of public concern because plaintiffs also allege that the changes to the program were made in retaliation for their complaints about Daly. (Defendants' Reply Mem. of Law (hereinafter "Defs.' Reply Br.") at 8.) Defendants' alleged motivation for the changes to the SEARCH program, however, is not dispositive on the question of whether those changes were themselves a matter of public concern.
7. Defendants argue that plaintiffs' statements about their having retained legal counsel and their intent to commence legal proceedings did not address matters of public concern because the underlying speech did not address matters of public concern. (Defs.' Br. at 15-16 n. 5.) For the reasons discussed above, plaintiffs have adequately alleged that their speech addressed matters of public concern, and so the Court rejects this argument. See Scott v. Goodman, 961 F.Supp. 424, 436-37 (E.D.N.Y.1997) (adopting Magistrate Judge's Report and Recommendation holding that adverse action in response to the threatened filing of a civil rights lawsuit can serve as the basis of a retaliation claim). Although defendants argue that plaintiffs only allege that they told defendants that they had obtained legal counsel and not that they intended to file a lawsuit, the Court disagrees. (See Am. Compl. ¶ 58.) In any event, the Court rejects defendants' argument that the mere retention of counsel is never protected by the First Amendment. See Eng v. Cooley, 552 F.3d 1062, 1069 (9th Cir.2009) (collecting cases) (There is a "long-recognized First Amendment right to hire and consult an attorney.").
8. Although defendants argue that the mere threat of disciplinary proceedings is not an adverse action, the Court disagrees. See Washington v. County of Rockland, 373 F.3d 310, 320 (2d Cir.2004) ("[T]he threat of administrative disciplinary proceedings . . . could have a deterrent effect. . . ."). In any event, as discussed above, disciplinary proceedings were allegedly brought against both plaintiffs.
9. For instance, following the speech to students, Lofaro was told that "she would face some sort of discipline for her actions, and that the Administration and the Board were going to make an example of her." (Am. Compl. ¶ 47.)
10. Lofaro was also told by the Assistant Superintendent of personnel in August 2007 that her "edge" had come out in an August 2007 interview. (Am. Compl. ¶ 27.)
11. Plaintiffs argue in their brief that, at the time of trial, Pickering is not the appropriate standard because plaintiffs argue that they have alleged a prior restraint on their speech. Because the Court rejects defendants' Pickering argument at this stage, the Court need not address this additional argument by plaintiffs.
12. Defendants do not specifically argue that Pickering warrants dismissal of the First Amendment claims as to plaintiffs' other speech. In any event, the allegations regarding the other speech are sufficient to survive a motion to dismiss on that ground.