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Blair v. Bethel School Dist.

June 14, 2010

KEN BLAIR, PLAINTIFF-APPELLANT,
v.
BETHEL SCHOOL DISTRICT, A MUNICIPAL CORPORATION; TOM SEIGEL, SUPERINTENDENT OF BETHEL SCHOOL DISTRICT AND IN HIS INDIVIDUAL CAPACITY AND HIS MARITAL COMMUNITY; JANE DOE SEIGEL; BRENDA ROGERS, PRESIDENT OF THE BETHEL SCHOOL DISTRICT SCHOOL BOARD AND IN HER INDIVIDUAL CAPACITY AND HER MARITAL COMMUNITY; JOHN DOE ROGERS; SUSAN SMITH, VICE PRESIDENT OF THE BETHEL SCHOOL DISTRICT SCHOOL BOARD IN HER INDIVIDUAL CAPACITY AND HER MARITAL COMMUNITY; JOHN DOE SMITH; JOHN MANNING, BOARD MEMBER OF THE BETHEL SCHOOL DISTRICT SCHOOL BOARD IN HIS INDIVIDUAL CAPACITY AND HIS MARITAL COMMUNITY; JANE DOE MANNING, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Western District of Washington Franklin D. Burgess, District Judge, Presiding D.C. No. CV-08-5181-FDB.

The opinion of the court was delivered by: Burns, District Judge

FOR PUBLICATION

Argued and Submitted October 16, 2009 -- Seattle, Washington

Before: Johnnie B. Rawlinson and Consuelo M. Callahan, Circuit Judges, and Larry A. Burns,*fn1 District Judge.

OPINION

Ken Blair maintains his First Amendment rights were violated when his fellow school board members voted to remove him as their vice president because of his relentless criticism of the school district's superintendent. The district court disagreed, and so do we. To be sure, the First Amendment protects Blair's discordant speech as a general matter; it does not, however, immunize him from the political fallout of what he says.

I. BACKGROUND

Blair has served as a publicly elected member of the Bethel School District School Board since 1999. There are four other Board members, who are also publicly elected. The members of the Board elect their own president, vice president, and legislative representative. Blair has served in each position over the years, but most recently, until October 2007, he was the Board's vice president.

Defendant-Appellee Tom Seigel was hired as superintendent of the Bethel School District in 2000. Blair has been a persistent critic of Seigel almost from the beginning, repeatedly impugning his integrity and competence. There are many examples, but one makes the point: early in Seigel's first term, Blair apparently insinuated to the Board and to the State Auditor that Seigel was defrauding the school district by requesting reimbursement for his moving expenses when in fact Seigel had been moved by the military. Blair is apparently the only Board member who is dissatisfied with Seigel, and since 2005 he has consistently voted against renewing Seigel's contract.

On September 25, 2007, the Board voted 4-1 to extend Seigel's contract and raise his pay. Blair was the lone dissenter. The next day, he explained his dissenting vote to a newspaper reporter, who then quoted Blair in a story saying, "My biggest issue with the superintendent is trust . . . . I have too many examples to say he's doing a good job."

Blair's statements to the reporter were the last straw for his fellow Board members, and on October 9, 2007 they voted to remove him as vice president. Blair then sued the Bethel School District, Seigel, and the other Board members under 42 U.S.C. § 1983, alleging that he was retaliated against for exercising his First Amendment rights to free speech and petition. The district court granted summary judgment for the defendants, finding the Board's action didn't prevent Blair from continuing to speak out, vote his conscience, and serve his constituents as a member of the Board. We agree with this finding, and with the district court's more general conclusion that the First Amendment doesn't shield public figures from the give-and-take of the political process.

II. DISCUSSION

[1] The First Amendment forbids government officials from retaliating against individuals for speaking out. Hartman v. Moore, 547 U.S. 250, 256 (2006); see also Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). To recover under § 1983 for such retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity;*fn2 and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. See Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). Here, it is uncontested that Blair's votes as a Board member and his statements to the newspaper were protected by the First Amendment, and that Blair's advocacy against Seigel was the cause for the Board's decision to remove him from the vice president position. It is also uncontested that the members of the Board are "state actors."*fn3 Were this a typical First Amendment retaliation case, we would be left to evaluate only whether the Board's action would chill a person of ordinary firmness from continuing to speak out.

But Blair's case is not a typical First Amendment retaliation case. What's different here is the "adverse action" Blair is challenging was taken by his peers in the political arena. The record makes clear that Blair's fellow Board members wanted a vice president who shared their views. Because Blair didn't, they removed him by a procedurally legitimate vote. The peculiar context in ...


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