before i turn to the calendar i want to welcome judge floor until ardo of the western district of new york who's donating his time to sit with this circuit and will great pleasure to be here thank  those so let's start with i shouldn't be versus kind the morning my name is brian glass i am the attorney for mr actions here former assistant principal at flushing high school this case was brought because in a sense he was very similar to the case of fear oh just a fear of when i saw very complex first amendment analysis and did find that this was a matter of public concern that you know it may well be a matter of public concern and i'm not a bit fond of our city but i find it very hard to say that this isn't exactly what governor said he was about here is somebody speaking about feelings which have public concern but which are essentially part of  subsequently our circuit applied it even more broadly with me to sente but isn't that really what we're stuck with well i think it's quite pirlo to the jack clear case which this  circuit has held the recently and jack stands for this proposition of a police officer who's speaking out of refusing to issue a false report he did nothing more than do that within the context of his job duties and that case was dismissed on a motion to dismiss restored by the second circuit so i think there have been the thinks his fear of the not speak outside his the context of his job as an assistant principal he didn't go to the paper as jackley or not speak outside his role as a police officer he was being urged to do was not something illegal he was told to be much stricter in how he wrote teaching reports now you know that may be right of it may be wrong out on a motion to dismiss that was restored by the second circuit and that case talked about the court the cause of the quota now you might argue that the quota system by itself is a good or bad thing but that mr matthews spoke out about that and that was found to be protected as well  so he spoke out about it it wasn't him him saying that he wanted to give different evaluations to the teachers let me put it this way suppose suppose one of the math teachers that your client is evaluating gives eighty s to everybody who takes f class in your client goes to the math teacher and says look at everybody in the class can't be any student she says everybody's an a student and this happens semester after semester after semester year after year after year and he says your students are doing very poorly in their in their standardized testing just is the school did poorly in its in its evaluations isn't there there is she subject to some discipline for giving aids to every single student and wouldn't she have the exact same argument that your client has if she were told to apply stricter standards well i think there's a distinction i think we're talking about sort of this concept of quote i we're not going individualized evaluations here i mean mr  has rated teachers ineffective in the past that he finds in effect of what the pressure in this case was that the political pressure of reading a school this was in the newspapers that summer quite a bit this renewal superintendency and there was a lot of political media about whether this is proper to be reading these large high schools these teachers in effect of across the board so i think you know an individual has basis that would be a different case it's interesting that if you're in the response brief they talk about this is not a case where he's alleging that you know to falsify specific about wages for group or math teachers or there's a policy of lowering the ratings of a wide range of teachers this is the case he's saying you know there's the state standards i'm applying the state standards they're telling me on a just the right rate everyone lower they're not they're not criticizing him about about any specific teachers there's not a single anything in his records it's going to show that he was asked to say look at this case this case you know you're not you know you're overrating in this case same thing in my example jitters giving everybody is we're not saying to the teacher we'll you know jimmy or johnny deserves a b or c or a d we're saying you can't give everybody is just like we're saying to this fella you can't give everybody effective what's the difference i think the difference is we're talking about state we're talking state and local measures are part of the new process so you're looking at the state and local state a valuation methods now and his his ratings were consistent with the state of valuation so we are implicating you know state concerns rather than just and individualized school settings so i believe part of his argument is look these teachers on the on the on the objective data are reflective across the board it's consistent with my ratings what they're asking me to do was just willy nilly rate people ineffective for as a matter of policy because we feel is the failing school there must be failing teachers so if they were regionally was something that could be complained about in a first amendment way whether what they did after is bad if bad from a federal point of view whatever happens with contract in the state is a different matter but it's bad from a federal point of view if the original action taken was in fact improper in that first amendment kind  and that's where i still have problems and you know when i was d now i would tell my teachers from time to time look you gave it almost everybody had beat were very relieved that bad and sometimes they'd say yes sometimes he'd say well let me think about it again you know now i might have been wrong but was vis a something outside of the scope of the employment even if it did have some public interest or not in terms of garcinia i believe it's analogous to matthews the quota system it's an objectional policy it's and the reason it made the papers was because there was sort of this global way to rate teachers and lower standards the evaluation system was very controversial at the time and this is right within the context of the it no doubt that to me that this is a controversial issue and that there is something i'm glad the guy raised it and all that pushed comes back to that gar said you would agree that there's a difference between your situation in the situation where somebody like your client goes to the newspapers  there is a problem with reading teachers in this district right i mean there is more of a public element when you do that but i think these other the distinctions and matthews and jackal are have kind of overcome those distinctions if you read those cases closely i mean jack reed is nothing more says i'm not going to write the report and then he got the consequence he did nothing publicly beyond just refusing to do that work i think this goes beyond fear a little bit because fear was a subject on individualized basis to rate one teacher on its individualized basis withdraw the ratings well i don't believe they would they yes and they would rather port he refuse than the consequence to him was the loss of the job here they didn't ask him i mean they didn't say you need to change the ratings but his middle ear when he refused to do that he got the he got the ineffective or this first one well i think it's this concept of failure to succumb to government pressure to engage in wrongful conduct and i think that's what's being recognized in a case like jack where it's this idea that you know if he's in line with state and local standards and he's doing you know he should not be the the pressure on him as a public employee has been recognized as of the matter of public concern and so i think if you get past the problem then we get into the issues of fact and all they're really asking for at this point is a chance to develop the record i mean this may be revisited on summary judgment i think cases like jackal are and i mean they're difficult cases because there's certainly the court has a sense of improper you know he was improperly disciplined for trying to do the right thing and or we like to discreate the record broader we may bring in some of the press articles i think we could develop this record further factually you know judge court they'd decided this case in one sentence if you really look at it he just says she says it's distinguishable fiero because he's not alleged these ever directed to engage in blatantly wrongful conduct and he is alleging that he he was directed to engage in plainly wrongful conduct so this is there to try to characterize this is a just disagrees with a rating system this is beyond that this is this is a policy of raiding teachers willy nilly they're not saying here you're playing danielson improper which is the rating system they're not saying you know in this individual case we are showing evidence in specific cases that he wasn't doing it properly they're just saying globally you're just doing a wrong you must you have the right these teachers lower across the board i think would be a different case if they if they spent the time showing him that the overrating was really not in line with their new standards but they're not saying they're just saying you got to meet everybody lower and this in a situation i think through through discovery would bring that out and that's why i really want to get to this government to the pros the renewal superintendent and the post some of the high level people to really bring out what the policy pursuant to his official duties your honor hit it on the head when you pointed out that this case is on all fours with gar seti and putting aside the majority opinion in weintraub your dissent hits it again this is a case where the plaintiff was paid to do the following among them among his many jobs as the assistant principal he was required to rate his many different math teachers in his department when he was questioned about his effective ratings he defended them a personal he felt that he was being personally attacked that his professional judgment was under fire and he said no when he was asked to put the written evaluations before the main principal the head principal he refused to do so saying this is not subject to the principals approval it's my professional judgment he was not acting as a citizen when he went about his job of raiding his math teachers and as your honor pointed out in your dissent in weintraub the employer has the right to ensure that it's official communications are accurate and demonstrate sound judgment and that is exactly what the principal of this school was doing not a single page or word in their complaint alleges that he was asked to falsify or across the board any evaluations nor was any nor can you even read this complaint to read that he was asked to lower them he was asked at best to use a more stringent standard to better assessed history and his teachers not every teacher could be rated effective but as opposing counsel pointed out he lost his job he lost his job but not because he was doing what because he was not doing what he was supposed to be doing which was using a better more stringent standard he does not have the right under statements he was asked to retract a truthful statement which he refused to do and it had a civilian analog him lying under oath can subject him to criminal liability this is not the case here again he was not asked to either withdraw his what he believed to be a truthful evaluation or an objective evaluation using a different standard that the principal wanted him to do and nor would he be subject to criminal liability for doing anything by using a different standard which three of the complaint the principal meant mention hog using this other standard the danielson standard the teachers are now being rated a little bit more stringently that's exactly what was happening that was not really being told don't give everyone an affective rating but he's not being told to lie he's being told to use and that cannot be inferred from his complaint what can be inferred is that he was asked to use a more stringent standard and if you was  as he says i think every one of these teachers deserves an effective rate he's being told you can't give all these teachers an effective rating or always that being told a lie because he's not being he's he or his professional view these teachers are outstanding and he's claiming that he's following the state and city standards of evaluation but the principal is saying there are other standards to use that would warrant a lower lie or falsify it wasn't also he also with did not allege that he was given a different set of standards however what was alleged again at paragraph thirty three he points out that at this meeting where the principal attended it was the cabinet meetings and the principal cited number showing that there was an increase in the number of teachers rated developing and ineffective using this danielson framework for teaching that demonstrates that there's a different standard that can be applied that will warrant lower ratings not saying that these were lies or false active false statements but it is a different standard that he is suggesting should be applied to these teachers the other more recent case the matthews case that my adversary point pointed out that is a case where the police officer was questioning policy which was not part and parcel of his duties as a police officer he was simply supposed to make arrests and things of that nature when he said these this quota system is downright changing the way you know arrests are being made this court held that that was not a he was not doing it within his job responsibilities this is not a questioning of a policy case this is not matthews this is simply discussing a change in policy by substituting difference to no he's not he's saying you know excuse me i'm sorry you're on to the matthews police officer was saying this policy of this quota policy is is is improper because it changes or affects the way arrests are made the only thing alleged in playing to some play which however we read it favorably to him is that he was asked to use a different standard at best he thought and disagreed that that's not the way it should be he's not saying that this system wide policy is affecting teachers he's saying i don't like the way you are saying to me that my teachers should be rated if he kept saying throughout his complaint it's my professional judgment that you're attacking i don't have to give you principal jhon my evaluations before they are uploaded that's my professional judgment or all of this refers reverts to his professional judgment and this case is on all fours with our study everything that we discussed this morning demonstrates that the plaintiffs mere disagreement with the policy or the new standard that he believes should be used on his evaluations does not give him a license to carry out his job as he sees fit just because he thinks as it was held in the glickman case that there might be a colorable argument that this was improper so again this all boils down to a plaintive doing exactly what he was told to do he did not like the the that his professional judgment was being questioned and this was all part and parcel of his duties that does not warrant first amendment protects you do agree that it would be a different case if the plaintiff went to the news media and  said the standards that are being applied in this in the school district are too strict yes possibly in fact we i think we mentioned that in our brief he uses the the internal mechanisms he went through the chain of command went right to his principal he did not do anything outside so yes that would be a principle you know it would actually been the safer theremin for him to just said you know what i'll do what they say all right so my teacher is lower so we don't have you know and then when they told the lie i think that's a factual question we can determine that i think he was told a lie they're saying no he's not  reading teachers more stringently in fact will show that he was essentially told a lie because it's so closely follows these meetings with high level people where intimidation was used to say if you don't do this you're going to get it you're going to get a lower rating and that's exactly what happened so i think she's drawing distinctions without a difference she just trying to characterize this is what's of his a lone wolf who wants to do what he wants to do so he's speaking up and say this is wrong for all teachers this is a matter of policy as matthew is with the quota system he's not he doesn't set policy absolutely he doesn't but he's saying this is wrong and evaluation of state law and you know he got retaliated for that is not saying you know he went to a news media or went to someone outside the chain of command and said these things i might agree with you but he's not saying those things he's simply saying i want to rate these teachers power is part of my job effective i'm rating them effective he's not making a statement about the policy he's acting within the policy right now i think he's making a statement about the policy whether he's going to outside sources that's a different distinction that comes up in some of the other cases as the weather certainly would be it would make his case stronger if he had done that but i don't think that's the that's the the factor that makes this case a loss and i think that can be developed as well but i think you know we have a cases out there like the arrow and we have jack lair which are people are not going outside to the press i mean it certainly would make an easier case but i don't think that's the one factor and if you look at these closely you'll have to sort of sort out all these