There is a social worker on my staff who just doesn’t know when to shut up. The way she talks about the services we should be providing to students, she must think that money grows on trees. If anything, she has gotten more vocal in recent years, and she constantly admonishes me and others about our need to step up and support students whose mental health has been compromised by the pandemic. To make matters worse, in various PPTs, she keeps suggesting that the students receive mental health services that we did not even discuss during our related staff prep sessions.

As a faithful reader of Legal Mailbag, I understand that employees do not have protection under the First Amendment when their speech is part of doing their job. I would love to put this social worker on notice that she had better toe the party line during PPT meetings or else. And by “else,” I mean starting a disciplinary process that could ultimately end in the termination of her employment. Do I understand correctly that she cannot make a First Amendment claim if and when I do so?

Signed,
Fed Up

Your understanding of the First Amendment is correct, but your understanding of the situation is flawed. To be sure, the United States Supreme Court ruled in Garcetti v. Ceballos (U.S. 2006) that public employee speech “pursuant to duty” is not protected by the First Amendment. Moreover, the Connecticut Supreme Court has adopted a similar standard for considering free speech claims under the Connecticut Constitution:

It is only when the employee’s speech is on a matter of public concern and implicates an employer’s “official dishonesty . . . other serious wrongdoing, or threats to health and safety” [citation omitted] that the speech trumps the employer’s right to control its own employees and policies.

Trusz v. USB Realty Investors, LLC, 319 Conn. 175 (2015). Accordingly, if this were simply a question of public employee speech pursuant to duty, you would be free to lay down the law.

The situation you describe, however, is not simply speech pursuant to duty. When school personnel participate in PPT meetings, they have special protections under Connecticut law. In 2019, the General Assembly amended Conn. Gen. Stat. § 10-76d to add new subsection (i), which reads:

(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.

Given this clear prohibition against discipline of PPT members for recommendations they make during a PPT, you should neither warn the social worker to “toe the line” nor follow through with your plan for discipline, should you disagree with her comments at a PPT meeting.

Potential protection for advocacy on behalf of students is not limited to PPT meetings, and Legal Mailbag counsels you not to hold the social worker’s advocacy against her in any way. Some years ago, a teacher claimed that the non-renewal of her contract was retaliation for her advocacy for students under the IDEA and Section 504, among other claims, and the court held that she had the right to go to trial on those claims. Sturm v. Rocky Hill Board of Education, 2005 U.S. Dist. LEXIS 4954 (D. Conn. 2005). The last thing you need is for the social worker to claim retaliation for her advocacy. Rather, it would be more productive to talk things through with the social worker to develop a better understanding of her perspective and to take that opportunity to share your perspective with her.

Finally, Legal Mailbag must express concern about your complaint that “in various PPTs [the social worker] keeps suggesting that the students receive mental health services that we did not even discuss during our related staff prep sessions.” It is certainly appropriate for school staff to have planning meetings to discuss the information needed before you hold the PPT meeting. However, parents are essential members of the PPT, and school staff should not decide at a pre-meeting what services a student may or may not need. The social worker has every right at PPT meetings with parents present to suggest what a student needs. That is where decisions are (and should be) made, and you shouldn’t be complaining about suggestions the social worker makes at PPT meetings, to Legal Mailbag or anyone else.