The Courts
U.S. Fifth Circuit Court of Appeals
ISD Prevails In Federal Whistleblower Suit
Filed by Fired Principal and Assistant Principal
Ruling: An ISD didn’t retaliate against a principal and assistant principal when it fired them after they made several calls to the TEA accusing the district of alleged illegal actions regarding students with disabilities. Don Powers; Karon Wernli v. Northside ISD [Bexar County]; Brian T. Woods, No. 18-50983. Issued Feb. 26. Ordered “published.”
Powers was principal of Adams Hill Elementary and Wernli was assistant principal when, in May 2013, a five-member committee they were on concluded that ADHD-diagnosed student J.B.’s reading disability qualified him to be given the STAAR orally as a federal Section 504 testing accommodation.
NISD’s then-Sec. 504 program director reversed the decision on a conclusion that J.B. did not qualify for a Sec. 504 oral STAAR accommodation. The program director and other NISD administrators then reviewed the school’s Sec. 504 records and STAAR accommodation policies, and informed Powers and Wernli that it was determined that the policies and practices were out of compliance.
That’s when Powers and Wernli called the TEA several times to seek affirmation that they were on the right track in terms of Sec. 504 compliance and STAAR accommodations and to report NISD’s alleged illegal conduct. Wernli stated that she “felt adamant” to report that NISD had taken J.B.’s rights away from him.
NISD then: 1) suspended them, 2) reported to the TEA that they had intentionally authorized inappropriate student testing by misapplying Sec. 504 eligibility requirements and 3) fired them from their term contracts after an independent hearing examiner supported termination.
A three-member Fifth Circuit panel, in this decision, upheld the prior rulings by a federal judge and a jury dismissing the claims in the lawsuit filed by Powers and Wernli (“the plaintiffs”) against NISD and its superintendent alleging violations of the Texas Whistleblower Act and abridgment of their First Amendment rights to free speech.
The justices agreed that the plaintiffs did not meet the minimum criteria to sue over their retaliation claims because their calls to the TEA were made in their role as public employees — and not as citizens — on a matter related to their job duties that was not a topic of “public concern.” The justices also agreed the superintendent had “qualified immunity” from being sued and that the plaintiffs could not seek lost wages because they retired and started collecting their TRS pensions after they were fired.