Federal appeals panel reinstates Pennsylvania teacher’s retaliation claim

Tuesday, May 16, 2000

A divided federal appeals panel has reinstated the civil rights lawsuit of a former middle school teacher who alleged that a Pennsylvania school superintendent brought theft charges against her because she was an outspoken advocate for diversity.

Lou Ann Merkle, who formerly taught art at Sandy Run Middle School in the Upper Dublin School District, was a leader in a local chapter of Seeking Educational Equity and Diversity. The group trains teachers on diversity and cultural issues that may arise in the classroom.

In 1996 in her capacity as a SEED advocate, Merkle supported a parent who wished to remove the book The Adventures of Huckleberry Finn from the school’s required reading list because it contained language offensive to some African-Americans. During this process, Merkle directly challenged the school administration.

In 1997, Merkle was charged with theft for taking 144 boxes of crayons from the school. Merkle and another art teacher said they were planning to donate the crayons to North Hills Community Center.

Principal Margaret Thomas saw Merkle placing the crayon boxes in her car. Thomas told Merkle to return the crayons to the school and she complied with the principal’s request.

However, Superintendent Clair Brown insisted that criminal charges be brought against Merkle. On Sept. 2, 1997, police arrested Merkle on charges of theft.

After the arrest, Brown recommended to the school board that Merkle be dismissed on the ground of “immorality.” In January 1998, a judge dismissed the charges against Merkle. Merkle sought administrative remedies and later won reinstatement with back pay. She has since left the school district to teach at a private school.

In the fall of 1998, Merkle sued the police department, the school district, the principal and the superintendent, alleging a violation of her constitutional rights. Among her claims, Merkle contended that the school district, Thomas and Brown retaliated against her because she was an outspoken critic of the school district administration regarding diversity.

Merkle argued that Brown’s actions in urging the police to arrest her were motivated by the desire to punish her for her critical speech.

In July 1999, U.S. District Judge Robert F. Kelly dismissed the lawsuit, granting summary judgment to all of the defendants.

However, on appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals reinstated part of the lawsuit by a 2-1 vote on May 9.

The panel majority determined that a jury should determine whether the school district and Brown retaliated against Merkle for her speech. The panel determined that the lower court properly dismissed claims against Thomas.

The panel majority noted that the actions of the superintendent in urging the police to arrest Merkle for attempting to donate crayons to charity were “drastic.”

“The Superintendent’s decision to arrest and his deliberate decision to recommend to the School Board that Merkle’s contract be terminated on the basis of ‘immorality’ was motivated by a desire to retaliate against her for her protected activities and not by an interest in protecting the unauthorized removal of supplies,” the panel majority wrote.

“A jury could reasonably find that the underlying motivation for the discharge lay embedded in Merkle’s temerity to advocate her multicultural program to the School District,” the panel continued.

Judge Morton Greenberg dissented, finding that the school defendants “had probable cause to believe that Merkle committed a crime.”

Martin Herring, Merkle’s attorney, said that the appeals panel correctly saw that Merkle was “an outspoken critic of the school district for its lack of sensitivity to diversity. The Huckleberry Finn incident was simply one of many.

“A jury should find that this was a fine teacher and critic who was retaliated against by a school district that took an opportunity to hammer her,” Herring said. “This decision is important because it reaffirms the principle that teachers do not lose their constitutional rights to freedom of speech and expression at the schoolhouse gate.”

Calls to the attorney who argued the case for the school district were not returned.


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