Cohn v. Dep't of Educ. of N.Y.C.
697 F. App'x 98
2d Cir.2017Background
- Peter Cohn, a NYC public-school earth science teacher, suspected a colleague had improperly coached students on the New York State Regents lab exam after observing unusually high scores.
- As part of his duties, Cohn helped set up, create the answer key for, and grade the Regents laboratory exam.
- He reported his concerns to his principal and assistant principal; when they did not act, he wrote to the New York State Department of Education and the Board of Regents.
- Cohn alleges that, after reporting, he suffered adverse employment actions (e.g., unsatisfactory reviews) in retaliation.
- The Eastern District of New York dismissed his complaint, holding his speech was made pursuant to his official duties and thus not protected by the First Amendment; the Second Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cohn spoke as a citizen or as a government employee when reporting suspected cheating | Cohn: he spoke as a citizen, including by contacting state education officials beyond school administrators; private citizens can make similar reports | Defendants: his report was part-and-parcel of his job duties (test administration and grading), so he spoke as an employee and is unprotected | Court: speech was made pursuant to official duties; unprotected by the First Amendment |
Key Cases Cited
- Ruotolo v. City of New York, 514 F.3d 184 (2d Cir.) (standard of review for First Amendment public-employee speech issues)
- Matthews v. City of New York, 779 F.3d 167 (2d Cir.) (public-employee must speak "as a citizen" to have First Amendment protection)
- Jackler v. Byrne, 658 F.3d 225 (2d Cir.) (distinguishing citizen from employee speech)
- Ross v. Breslin, 693 F.3d 300 (2d Cir.) (no bright-line rule; courts examine job duties, nature of speech, and relationship between them)
- Weintraub v. Board of Education, 593 F.3d 196 (2d Cir.) (teacher’s complaint about student misconduct was part-and-parcel of job duties and unprotected)
- Anemone v. Metro. Transp. Auth., 629 F.3d 97 (2d Cir.) (taking complaints up the chain of command does not automatically create protected citizen speech)