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Subpoenas Seeking to Identify Illegally Absent Teachers Likely Don’t Violate the First Amendment

From an opinion by Judge Danny C. Reeves in Commonwealth v. Dickerson, 2019 WL 2064500 (E.D. Ky. May 9):

In 2018 and 2019, a number of public school teachers protested certain proposed legislation at the state capitol building in Frankfort, Kentucky. Ordinarily, such actions would not be a problem. However, because the subject protests occurred during the school year, their actions left many districts with last-minute decisions regarding school closures. If a sufficient number of qualified substitutes could not be obtained, districts were forced to close their doors. And this left many parents and students scrambling to make alternate arrangements. As discussed more fully below, this action was not isolated. In Jefferson County, for example, the schools were forced to close for several days and critical student testing was delayed. The parties disagree regarding whether the teachers’ actions constitute a work stoppage.

Following the forced school closures, the Kentucky Labor Cabinet issued subpoenas to ten school districts for the purpose of investigating and determining whether the absent teachers committed violated KRS 336.130 through an illegal work stoppage…. The subpoenas directed the production, inspection, and copying of all documents identifying the names of any employees who called in sick during the sick out dates. Additionally, the subpoenas required the production of copies of all affidavits from employees or letters from licensed medical professionals provided by the employees who called in sick for any of the dates of the “sick outs.” … The plaintiffs seek … a temporary injunction to prohibit Secretary Dickerson from acting on or enforcing the subpoenas….

The plaintiffs assert that Secretary Dickerson exceeded his authority in issuing the subpoenas because the teachers were not engaged in a strike or a work stoppage, the law does not enable Dickerson to penalize public-school employees, and the issued subpoenas target constitutionally protected activity. As to the first claim, however, the Court concludes that the plaintiffs have not shown that Secretary Dickerson exceeded his authority in issuing the subpoenas. [Details as to this claim and the other state law claim omitted, as are the details about the dispute on the subpoenas between the state labor department and the state Attorney General. -EV] …

KRS 336.130(1) states that “[e]mployees, collectively and individually, may strike, engage in peaceful picketing, and assembly collectively for peaceful purposes, except that no public employee, collectively or individually, may engage in a strike or a work stoppage.” (emphasis added)…. Kentucky courts have concluded that “the word strike clearly includes a work stoppage and a job action which deprives the public of the services of the employees in question.” …

[I]t would appear from the information contained in the parties’ pleadings that teachers collectively decided to call in “sick,” leading to school closures on several occasions. This deprived parents, students, and taxpayers of the teacher’s services. And because the “sickouts” likely constitute a strike or a work stoppage, the plaintiffs have failed to demonstrate a likelihood of success of showing that Secretary Dickerson acted outside the scope of his authority by issuing the subpoenas…. Here, the teachers were likely participating in a strike or work stoppage in violation of KRS 336.130, and the teachers’ constitutional rights do not allow them to violate the law….

The opinion concluded thus:

Some may think that the claims asserted in this action stand logic on its head—and they may be correct. Students are expected to attend classes. If they fail to do so without a valid excuse, their absence is duly-noted and appropriate action is taken. But the teachers at the center of this controversy expect different treatment. They assert through the Attorney General that the Secretary of the Labor Cabinet should look the other way when they avoid their employment obligations by improperly claiming to be sick.

Whether the plaintiffs will ultimately prevail on one or more of their claims by asserting violations of the First Amendment or other related rights on behalf of this group of educators is yet to be decided. It is clear, however, that at this point in the case, the plaintiffs are not entitled to [preliminary] injunctive relief to essentially halt the Labor Cabinet’s investigation….

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Eugene Volokh

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