"We have long recognized the importance of allowing teachers to speak out on school matters," reads the ruling of the 9th Circuit Court of Appeals, "because teachers are, as a class, the members of a community most likely to have informed and definite opinions on such matters. This is particularly so with respect to disabled children, who may not be able to communicate effectively" regarding their needs at school. "Teachers may therefore be the only guardians of these children's rights and interests during the school day."
One such guardian has just finished the long journey through the judicial system and has had more than her fair share of day(s) in court. Pamella Settlegoode, known by her students as "Dr. S", took a position with Portland Public Schools in 1998. Soon after her hire, she encountered a double standard with regard to students with and without disabilities.
While nondisabled students could participate in the sport of their choice and enjoyed PE 5 days a week, students with disabilities were "not allowed" to participate in sports and were limited to 1 day a week adapted PE.
There were physical barriers as well. Most of the schools where Dr. S was assigned had no ramps, no elevators, no accessible sidewalks. Students using wheelchairs and those with hearing or vision loss had to use the street and student parking lot. Dr. S. explained that she feared a reckless teenage driver would hit one of her students. A wrestling coach who happened to have a spinal cord injury and used a wheelchair had to rely on his students to carry him and his wheelchair separately up and down stairs.
Further alarming Dr. S was the practice of supervisors backdating and revising IEP's, or failing to provide services delineated in the IEP.
Seeing all this, she began to write letters to her superiors, and when that failed to get any action, she wrote to their superiors. Her supervisor's response to this was to label her personnel file "Home of the Idealist", cancel some of her classes, stop adaptive (and successful) tennis instruction with a child born without arms, bar her from attending IEP meetings for her students, and order her to stop writing letters. Letters sent to superiors were only forwarded back to direct supervisors.
Shortly afterward, she was fired. She sent out 50 resumes without a response. There is a name for this in the courts: retaliation.
Dr. S filed a lawsuit claiming retaliation, among other claims. Her Complaint alleged violations of Section 504 of the Rehabilitation Act, violation of the First Amendment of the Constitution, (as a 1983 action), violation of the Oregon Whistle Blowers Act, Defamation of Character, and a violation of the Equal Pay Act. For tactical and strategic reasons, the latter two claims were eventually dropped.
She won that case in November 2001. A magistrate judge overturned the award a few months later saying school employees should be immune. Finally on March 4, 2004, after a lengthy appeal process, she was awarded one million dollars payable by her former special ed supervisor and assistant.
Their decision includes strong language about freedom of speech for teachers, including the above excerpt. With support from advocacy litigation agencies, other teachers who are trapped in oppressive work environments will use this case as a roadmap. Following the decision, Pamella Settlegoode stated, "This has been the 'most heart-wrenching and hellish experience of my life. My children want to learn PE, they love it, they want to be athletes, they want to learn, they are teachable, and that was not the problem. The problem is a system that views children with disabilities as second-class citizens."
Pete Wright, of Wrightslaw, says, "If it wasn't written down, it wasn't said. If it wasn't written down, it didn't happen." (From Emotions to Advocacy, page 201) How would this case have turned out if Dr. S not kept good documentation? The logs, letters, calendars, planners and phone messages of parents and teachers create paper trails critical to mediation and litigation, if necessary. Clarifying a mixed message, thanking others for a job well done, requesting information and documenting events - letter writing can be key to supporting one's memory under conflict, and serving as evidence. Dr. S's attorneys relied primarily on 8 letters that she wrote to support her case.
The defense's stance was that Dr. S was fired due to poorly written IEP's. That claim did not stand up under cross examination.
In the final ruling, the 9th Circuit Court notes, "The magistrate judge (who overturned the original decision) disapproved of a portion of Kafoury's (Dr. Settelgoode's attorney) closing argument, which urged the jury to "send a message" to the district.
Kafoury argued: "And the question is whether you want to use this opportunity not just to do justice in this case, which sorely needs some justice, but whether you want to use this opportunity to give some power, some breathing room to those who want to make things better, to those who want to be advocates for kids, or whether you want to strengthen the dead hand of this bureaucracy whose face you've seen."
For the reasons explained in text, we believe this statement was proper," the ruling notes.
Kafoury asked the jury to not just do justice, but "send a message." Give "some breathing room to those (special educators) who want to make things better, to those who want to be advocates for kids. "
A message was sent - a very costly message to Portland City Schools and to special education administrators in all jurisdictions.
See more details from this case online at The Special Ed Advocate, https://www.wrightslaw.com/subscribe.htm . This site offers a free online newsletter about special education legal and advocacy issues, cases, tactics and strategies.
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