the education students would receive. The content of the speech
concerning why district students were consistently below national
averages and were performing poorly in the classroom related to
the effectiveness of the education. Both of these speeches dealt
with matters of public concern because "the message conveyed
would be relevant to the process of self-governance if
disseminated to the community." Azzaro, supra, 110 F.3d at 978.
Additionally, there is nothing in their form or context that
would detract from their value to the process of self-governance.
The first speech was communicated to Board members as part of
Poteat's duties. The second one was delivered during the course
of a board meeting which dealt in part with grade-changing,
possibly involving the Superintendent, and the graduation of
students who had not met qualifications. The topic of why
students were failing would relate directly to an issue before
the Board, and any mixed motives Poteat had in delivering his
speech would be irrelevant to whether it dealt with a matter of
public concern. See Azzaro, supra, 110 F.3d at 979.
Having decided that Poteat's speech was on matters of public
concern, the next step would normally be balancing the value of
the speech against the Board's interest in efficiency or
effectiveness. However, because we have decided that we need not
do that for the speech concerning why children were failing and
that that speech can be eliminated from this case on the basis of
causation, we will provide our analysis of that aspect of the
case and then proceed to the balancing for the remaining speech,
the ones dealing with budget cuts.
The speech concerning why students were failing addressed why
students in the District were consistently below national
averages and were performing poorly in the classroom. As a
solution, Poteat suggested that the students' parents and the
community must, generally, get more involved and hold everyone
accountable, specifically mentioning administrators and teachers,
but he made no mention of the Board, any member of the Board, or
any board policy. Because he did not bring the Board into his
speech, no reasonable juror could believe that it was a
motivating factor in Poteat's discharge or in any of the other
allegedly retaliatory conduct.
The only remaining speech at issue is Poteat's disagreement
with the Board and the Board's budget committee about certain
cuts the latter wanted to make in the school district budget for
the fiscal years 1996-97 and 1997-98. The cuts allowed the
furloughing of teachers and administrative staff and reduced
programs in K-4, K-5 and the Arts Magnet School.
The Plaintiff objected in both years, believing that the cuts
violated the School Code because they were being implemented to
save money rather than to halt spending on ineffectual
educational programs. When teachers filed a grievance over the
furloughs, he told the Board's attorney he would so testify at a
hearing on the grievance. As a result, the Board settled the
grievance for $100,000.
As the cases above have noted, a policymaker has substantially
less first amendment protection than a lower level employee. In
fact, when a policymaker is involved, that fact appears to be
determinative in tipping the balance in favor of the government.
See McVey, supra, 157 F.3d at 279 ("The circuit courts which
have addressed this issue have generally denied agency heads or
high-ranking agency personnel First Amendment protection"). For
example, in Hall, supra, the court decided that speech of an
athletic director questioning the legality of his university's
athletic practices was not protected by the first amendment
because he was a policymaker from whom his superiors should have
been able to expect cooperation in implementing their policies.
See also Coover, supra, which stated that the plaintiff's
status as a school superintendent would strongly weight the first
amendment balancing in favor of her employer.
In the instant case, Poteat was a policymaker. As
superintendent, he was responsible for running the daily
operation of the School District, subject to the oversight of the
Board, and he had to carry out board policy. An employee charged
with implementing policy can be considered a policymaker
even if his input on the policy is limited. See Kinsey, supra,
950 F.2d at 996. Cases dealing with first amendment claims for
political affiliation take the same approach. See Collazo Rivera
v. Torres Gaztambide, 812 F.2d 258 (1st Cir. 1987); Selch v.
Letts, 5 F.3d 1040, 1046 (7th Cir. 1993) (in implementing policy
an employee may sometimes create policy).
When Poteat's policymaking role is taken into account, the
balance tips in favor of the Board. He had twice opposed budget
cuts the Board wanted to make and in fact had indicated a
willingness to testify against the proposals at a grievance
hearing over them, resulting in a settlement and payment to the
furloughed teachers. The Board was entitled to a superintendent
who would effectuate its policies, not fight them. See Moran,
supra. Thus, as a matter of law, we decide that Poteat's speech
about the budget cuts was not protected under the first
This case might have been different if Poteat had exposed
corruption or criminal activity. In those circumstances, even a
policymaker could invoke the first amendment. See McVey, supra,
157 F.3d at 280-82 (Murnaghan, J., concurring). Poteat did assert
his belief that the cuts were unlawful under the School Code, but
on this record we cannot conclude that the cuts were in fact
unlawful. Barton Fields, a Defendant board member, testified that
the cuts had been made because Poteat had initially indicated
that the affected programs were not educationally effective. It
appears that under 24 P.S. § 11-1124, such cuts could be made for
that reason. Thus, what we have here is a disagreement about
policy, and in that area the Board prevails, not the
superintendent, even if the superintendent may be right.
In any event, even if the Plaintiff had a first amendment cause
of action here, the individual board members have qualified
immunity. It was not clearly established at the time that a
policymaker like Poteat had a first amendment right to disagree
with his superiors. See Moran, supra, 147 F.3d at 850.
C. The State Claims For Defamation and False Light.
The Defendants have also moved for summary judgment on the
defamation claim in count V and the "invasion of privacy/false
light" claim in count VI. Both of these counts were against the
school board members alone. The Defendants assert that the
Plaintiff has failed to establish the elements of these claims
and that, in any event, they have absolute immunity from suit on
these claims as high public officials.
The Plaintiff has not opposed this aspect of the Defendants'
motion, and we conclude that he therefore agrees that he has no
claim for defamation or false light. We also agree with the
individual Defendants that as high public officials they have
absolute immunity under state law from suit on these claims. See
Lindner v. Mollan, 544 Pa. 487, 677 A.2d 1194 (1996). In these
circumstances, absolute immunity protects the public interest by
allowing public officials to engage in the "unfettered discussion
of the public business" without fear of a lawsuit. Id. at 491,
677 A.2d at 1196.
We have examined the Plaintiff's other claims of purported
wrongdoing on the part of the Defendants and conclude that we
need not discuss them since they are not material to the claims
the Plaintiff raised.
We will issue an appropriate order.
AND NOW, this 21st day of January, 1999, it is ordered that:
1. The Defendants' motion for summary judgment
(doc. 32) is granted.
2. The Clerk of Court shall enter judgment in favor
of the Defendants and against Plaintiff and close