On August 4, 2015, the ACLU-NH filed a “friend of the court” brief before the New Hampshire Supreme Court in the case Appeal of Farmington School District/Appeal of Demetria McKaig.
This case concerns the Farmington School District’s blatant retaliation against guidance counselor Demetria McKaig after she courageously sought independent legal counsel and successfully obtained a Temporary Restraining Order (TRO) before the Strafford County Superior Court to protect her student’s right to privacy that was going to be imminently violated by the Farmington High School Principal. The Farmington School Board’s decision to not renew McKaig’s employment because of her petitioning activity was clearly erroneous because McKaig is the textbook definition of a whistleblower whose actions were fully protected under New Hampshire law.
As the brief explains: “Unless this Court affirms protection to school employees’ right to seek the advice of independent counsel and ask the courts to address imminent violations of the law, in many cases school district officials will ultimately control whether certain suits ever reach the courts. This will be so even where the claims brought by the employee present real violations of the law impacting the civil liberties of teachers and students. These are the very kinds of cases (i) where employees should be encouraged to consult with independent counsel—consultations which are protected under the attorney-client privilege and may, by necessity, require the disclosure of sensitive information—and (ii) that the New Hampshire courts should hear with the assistance of able counsel. This is why lawyers and the courts exist.”
On April 7, 2016, the New Hampshire Supreme Court sided with McKaig and the ACLU-NH, holding that the Farmington School Board’s decision to not renew McKaig’s employment was inappropriate. As the Court explained: “[W]e find it ironic, as well as concerning, that: the [Farmington School District] asked the [Superior Court] to grant the requested TRO against it, which the trial court did and which the district did not appeal; and then, five months later, the district decided not to renew McKaig’s employment based, in part, upon her filing of the TRO petition.”