Free speech is still alive–court dismisses lawsuit against CMS and NCAE

A Superior Court judge has dismissed a lawsuit filed against the North Carolina Association of Educators (NCAE) and the Charlotte Mecklenburg Board of Education by a group of parents who are opposed to remote learning.

The suit stated that COVID-19 is less dangerous than the flu and that remote instruction is unnecessary and harmful. Plaintiffs argued the constitutional rights of students to a sound basic education and statutory right to uniform public schools are being violated by denying them in-person instruction, which they referred to as “Active Instruction.”

They asked the courts to force CMS to “reestablish Active Instruction to the fullest extent permitted by the Governor of the State of North Carolina.”

You’re probably wondering, what does this all have to do with NCAE?

Last July I was among a number of educators and community members, some NCAE members and some not, who voiced COVID safety concerns to the board and district leadership via email and public comments at a meeting of the Board of Education.

After that meeting, our school board decided to forego a planned two week in-person onboarding period and instead begin the school year in Plan C.

This lawsuit claimed that the action of educators speaking up about our own safety and that of our students constituted a violation of North Carolina state law prohibiting strikes, defined in law as “a cessation or deliberate slowing down of work.” It said “NCAE has coordinated a deliberate slowing down of work of CMS by way of denying and/or delaying Active Instruction to CMS Students.”

In the likely event that you didn’t follow that absurd logic, plaintiffs were arguing that educators speaking during public comments at a board meeting and then board members voting to open in Plan C amounted to an unlawful strike.

The suit singled me out repeatedly by name, accused me of having a “clear bias against Active Instruction” and claimed that “members of the NCAE organized a campaign to improperly influence and intimidate the Board members and Mr. Winston into issuing the Suspension of Active Instruction.”

Obviously NCAE has no authority on decisions about schools reopening, but the suit asked the courts to prohibit NCAE from advocating its position to the Board and to compel NCAE–a nonprofit organization supported by the dues of its members–to pay court costs.

In his Brief in Support of Motion to Dismiss, NCAE’s attorney Luke Largess noted that CMS’s actions were authorized by Governor Cooper’s executive orders and that under the separation of powers doctrine it’s not possible to declare the school district’s selection of an instructional option approved by the governor unlawful.

As for the claims specifically against NCAE, he pointed out that the same statute cited by plaintiffs prohibiting strikes also says the following:

nothing herein shall limit or impair the right of any public employee to express or communicate a complaint or opinion on any matter related to the conditions of public employment so long as the same is not designed to and does not interfere with the full, faithful, and proper performance of the duties of employment. 

He added, “Calling support of a lawful instructional plan an illegal work slowdown is not a cause of action – it is rhetorical flourish born of the palpable disdain of Plaintiffs and at least one board member for NCAE/CMAE support of remote instruction as a safety measure.”

Fortunately the judge agreed.

This pandemic is taking a toll on all of us.  It’s turned our educational system upside down, ruined people financially, and cost far too many families their loved ones.  It’s not surprising that we would have major disagreements over how to proceed as we try to find our way through to the other side.

With that said, the ability of public employees to petition their elected representatives and to speak out about workplace safety should be something that we can take for granted in a democratic society.  We cannot allow our legal system to be used in ways that result in people being afraid to do either of those things.

I’m grateful for the efforts of NCAE’s legal team in standing up for the rights of its members and successfully arguing for the dismissal of this frivolous suit.  There has never been a better time to join NCAE than right now.  For any North Carolina educators who are interested, please feel free to reach out to me for more information, or visit this link.  

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