Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—W.D. Okla.: Superintendent not liable for alleged violation of school counselor’s First Amendment rights, (Jun 24, 2025)

By Todd Harrison, J.D.

Although the counselor agreed that the superintendent played no role in her termination, she argued he was responsible for the policies used as the basis for the termination decision.

Granting summary judgment in favor of the Superintendent of Public Instruction for the State of Oklahoma against a First Amendment claim brought by a former Oklahoma State Department of State Education (OSDE) school counselor, a federal district court determined that the superintendent was entitled to qualified immunity. Although the superintendent possessed responsibility for the continued operation of the policies that formed the basis of the decision to terminate the counselor, neither policy caused the complained of constitutional harm and the superintendent did not possess the requisite state of mind for a finding of liability (Bointy v. State of Oklahoma, No. CIV-23-1002-SLP (W.D. Okla. Jun. 23, 2025)).

The plaintiff was employed as a school counselor specialist by the OSDE from approximately December 28, 2020, until March 9, 2023. The superintendent began his role in January 2023.

School board meeting. On March 6, 2023, the counselor attended a school board meeting. During the public comments section, she spoke for approximately two minutes on child and adolescent mental health.

Termination. Later that evening, the counselor’s supervisor contacted the chief HR officer for the OSDE expressing her concerns about the statements made by the counselor. She also pointed to repeated documented issues she had with the counselor.

On March 9, HR made the decision to terminate the counselor. The superintendent was not present for this decision and had no knowledge of its occurrence. The basis for the termination was alleged violations of the OSDE’s confidentiality and media policies.

Erroneous application? The counselor acknowledged that neither policy was intended to deprive OSDE employees of their right to free speech and that OSDE had legitimate reasons for instituting the policies. However, she contended that the policies were erroneously applied in this instance. The policies were not created by the superintendent and existed at the time he took office.

Summary judgment motion. At the outset, the superintendent argued that he did not cause a violation of the counselor’s constitutional rights under the first prong of the qualified immunity analysis. He moved for summary judgment on grounds that: (1) he did not participate in the termination decision; (2) he cannot be held individually liable for the conduct of his subordinates under theories of respondeat superior or vicarious liability; and (3) he is not liable in his supervisory capacity as a policymaker.

Termination decision. With regard to the first ground, the counselor purportedly disputed the superintendent’s claim but acknowledged that the superintendent was correct in stating that he played no role in the termination decision. Nevertheless, she argued that it was appropriate to submit the matter before a jury because the superintendent impermissibly relied on “self-serving testimony of interested parties.” The court was not moved.

At no point did the counselor identify the self-serving testimony, observed the court. Further, the Tenth Circuit has recently held that at the summary judgment stage, “a district court may consider interested witness evidence from the movant... so long as a jury would be required to believe such evidence because it is uncontradicted and unimpeached.” Mauldin v. Driscoll, 136 F.4th 984, 995 (10th Cir. 2025).

Conduct of subordinates. As to second ground upon which the superintendent moved for summary judgment—that he could not be held responsible for the conduct of his subordinates without a showing of fault—the court noted that this was a well-established principle under Section 1983. The superintendent did not argue any facts in support, but simply set forth this principle, which the counselor also acknowledged. Thus, the court’s focus shifted to the third ground—whether the superintendent could be held liable in his supervisory capacity as a policy maker for the ODSE.

Policy responsibility. According to the counselor, the superintendent is the final policymaker at the ODSE and thus possessed responsibility for the continued operation of the policies in question. In response, the superintendent argued that the policies were in place prior to his taking office. The court found the superintendent’s contention to be of no consequence, explaining that pursuant to state law, he was the final policymaker and was responsible for the policies. However, continued the court, the fact that he held responsibility for their continued operation did not, without more, establish his liability.

No harm. Turning to the causation element of the counselor’s claim, she argued that the erroneous application of the policies led to the alleged violation of her constitutional rights. However, the court noted the policies themselves did not serve as the basis for her claim. As such, any implementation of the policies per se would not give rise to the imposition of liability on the superintendent. Without any claim challenging the constitutionality of these policies, asserting a violation of those policies could not have resulted in constitutional harm, said the court.

State of mind. Finally, the court found no evidence that the superintendent acted with any culpable state of mind. He had no knowledge of the counselor’s termination until this lawsuit was filed. Further, the counselor failed to allege that the policies in question violated federal law such that their mere existence would suffice to establish culpability. In fact, she testified that she had no reason to believe that the superintendent intended to violate her right to free speech.

In addition, the court found no record evidence to establish a custom or practice of applying the policies in a manner that resulted in violations of the First Amendment rights of ODSE employees. The counselor proffered a termination letter addressed to her former supervisor dated May 25, 2023, that stated as a basis for the termination a breach of confidentiality by leaking emails to the media. However, even assuming a First Amendment violation occurred, this termination post-dated that of the counselor, observed the court, stating, “Such a singular incidence is insufficient to demonstrate any well-settled and widespread custom.”

Without any evidence to support a finding that the superintendent caused the constitutional violation or acted with any requisite mental state, the court found that he was entitled to qualified immunity.

The case is No. CIV-23-1002-SLP.

Judge: Palk, S.

Attorneys: Leah M. Roper (The Center for Employment Law) for Janessa Bointy. Bryan G. Cleveland (Attorney at EdChoice) for State of Oklahoma.

Companies: State of Oklahoma

Cases: CoverageLiability Discharge IndividualRights PublicEmployees Procedure OklahomaNews