School Principal from Miami, Florida Appeals to Supreme Court for First Amendment Violations

By Margarita Borgmann

Miami, FL – A school principal has taken his case against the School Board of Miami-Dade County to the Supreme Court.  On January 16, 2019, the plaintiff, Dr. Alberto Fernandez, filed an appeal to the court claiming the board violated his First Amendment rights to freedom of speech and assembly when the school district retaliated against him for his involvement in converting a public school to a charter school.

Dr. Fernandez was the principal for 15 years at Neva King Cooper (NKC), a school for students with severe intellectual and physical disabilities, during alleged violations.  In February 2012, NKC’s school advisory council recommended to explore converting NKC to a charter school, in accordance with Florida law. Fernandez supported the idea.

In May 2012, the school district investigated and transferred Fernandez and two other NKC employees for their involvement, claiming that charter school conversion was not part of their job duties.  The district also issued a gag order prohibiting the employees from speaking to the school community. The Florida Department of Education (FDOE) Office of Inspector General (OIG) investigated the district’s actions. In November 2012, the OIG issued a Fact-Finding Report unfavorable to the district.  Subsequently, the Florida Commissioner of Education sent Superintendent Alberto Carvalho a letter notifying him that there was reasonable grounds to believe that “unlawful reprisal” against Fernandez and the other employees had occurred, and that the case would be referred to the Division of Administrative Hearings (DOAH) to conduct a hearing.

Judge Edward Bauer held the hearing from January to February 2014.  The school board contended that Fernandez and the other employees had been investigated and transferred as a result of their role in the charter school conversion.  The judge debunked the board’s investigations and questioned the validity of the district’s reasons for the transfers, which were against board policy.  He recommended that the FDOE enter a final order finding that the school board violated Florida Statute 1002.33 (4) (a), Unlawful Reprisal, with respect to each plaintiff.  The judge’s recommended order also stated that the school board pay plaintiffs’ attorney fees, which totaled over $250,000.  The judge, however, did not recommend that Fernandez and the other plaintiffs be returned to the NKC, as the plaintiffs had already been reassigned to similar positions in accordance with Florida law.  On November 6, 2014, the FDOE entered a final order which restated the judge’s recommended order.*

On May 20, 2015, the plaintiffs filed a case in federal court for violations of their First Amendment rights.  Afterward, the school board filed a motion to dismiss the case, but the judge, Darrin P. Gayles, ruled against the board’s motion and allowed more inquiry. Then, the board filed for a summary judgment (a court’s ruling without a trial).  However, the board changed its original position, claiming that converting NKC to a charter school was part of the plaintiffs’ job duties, thus, not protected by the First Amendment. The judge ruled in favor of one of the employee’s because the employee was not an administrator, but ruled against Fernandez and the other plaintiff.  The judge reasoned that Fernandez and the other employee, who was an administrator, provided “leadership” and, therefore, were acting in their official capacities when speaking about the charter school.  Fernandez appealed to the 11^th Circuit, but that court ruled in favor of the board. Fernandez, therefore, appealed to the Supreme Court.**

For more information contact Dr. Thomas Elfers, Esq. (786) 232-8074 or thomaselfers@comcast.com.

*All documents regarding the DOAH hearing can be viewed at www.doah.state.fl.us/ALJ/ (Case no. 13-1492).  The recommended order from the DOAH judge can be viewed at https://www.doah.state.fl.us/ROS/2013/13001492.pdf.  The final order can be obtained from the FDOE, case number 2014-3055.

** The District Circuit Court’s ruling can be found at https://www.flsd.uscourts.gov/ Case no.15-cv-21915-Gayles. The 11^th Circuit’s ruling can be found at https://www.flsd.uscourts.gov/ Case No. 17-14319.  For a copy of the petition to the Supreme Court, please contact plaintiff’s attorney, Dr. Thomas Elfers at the number and/or email above.

EDITORS NOTE: This column is republished with permission by the author. The featured image is from Pixabay.

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