A Spartanburg County school district did not violate a teacher’s First Amendment rights by allegedly changing the failing grades the teacher had assigned to two students accused of cheating, a federal judge has ruled.
Michael Cash, formerly a drafting and design teacher at Swofford Career Center, alleges that in the spring of 2015 he caught two students copying from each other on the final exam. Cash gave both students failing grades on that part of the exam. When the students’ parents complained, Spartanburg County School District One allowed the students to take a retest of that part of the exam. One student failed to show up for the retest, and the other again received a failing grade.
Cash says he subsequently learned that “someone from District One” changed the cheating students’ grades and gave them a final grade of 85, which netted a “B.” Cash resigned, and said he would not return unless the students were given the grades he’d assigned them. Cash says that the district refused to do so, and he so sued the school district for wrongful termination, arguing that since state law makes it illegal to falsify a student’s transcript, the district was essentially requiring him to violate state law in order to retain his job.
Cash also sued the district, and its superintendent, Dr. Ronald W. Garner, under Section 1983 of the Civil Rights Act, arguing that his assignment of grades was a form of symbolic communication and that Defendants violated his First Amendment rights by forcing him to accept different grades.
Although neither the 4th U.S. Circuit Court of Appeals nor federal courts in South Carolina have ever addressed the issue, U.S. District Court Judge Bruce Bowe Hendricks noted that several other federal courts that have addressed the issue of a professor’s or a teacher’s free speech rights in the assignment of grades have not found a constitutional violation under facts similar to those Cash alleged.
“In this case, Plaintiff was not compelled to change the grade himself. Rather, according to his complaint, ‘the students caught cheating had their final grades altered by someone from District One,’” Hendricks wrote. “Although Plaintiff asserts in his objections that ‘he was forced to accept the Defendants’ decision to record fraudulent grades to the students’ transcripts,’ it appears that no constitutional right to academic freedom exists that would prohibit school officials from changing a grade given by Plaintiff.”
Hendricks also declined to accept Cash’s argument that the school district suppressed his speech in addressing a matter of public concern, and ruled that even if the court were to hold that even if the court did recognize a First Amendment claim based on the facts of the case, Garner would be entitled to qualified immunity because his actions did not contravene a clearly established right of which a reasonable person would have known.
The dismissal of the Section 1983 claim means that the federal court will not have jurisdiction over the case and Cash will have to bring his wrongful termination claims in state court.
Dave Duff and David Lyon of Duff, White & Turner in Columbia represented Garner and the school district. Duff said that the court reached the correct decision based on the law in deciding that no First Amendment protection that attaches to a public school teacher assigning a grade to a student. He noted that because of the procedural posture of the case, the court was required to accept Cash’s allegations as true for the purpose of the district’s motion to dismiss the case.
“The facts of this case, if they were known, would make the situation in my view, even more favorable to the district and less favorable to the plaintiff,” Duff said. “We are aware that at least at this point in time Mr. Cash is going to pursue his state law claims, and we believe that we will be able to successfully defend those as well.”
John Reckenbeil and Lee McNair of John Reckenbeil Law Office in Spartanburg and Bradley Bennett of Salvini & Bennett in Greenville represented Cash. Reckenbeil said that he and his client “are very encouraged that we still have an opportunity to bring this case before a judge and jury here in Spartanburg County.”
The 14-page decision is Cash v. Garner (Lawyers Weekly No. 002-219-16). An opinion digest is available online at sclawyersweekly.com.
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