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Judge rules against teacher union in effort to block illegal strike lawsuit

The union sought to use a novel, free-speech-based argument to counter district claims that rolling sickouts constitute a strike.
Jacob Solis
Jacob Solis
K-12 Education

A Clark County District Court judge denied a motion from the Clark County Education Association (CCEA) to dismiss a lawsuit from the Clark County School District (CCSD) aiming to block an illegal strike on Tuesday, amid stalled contract talks between the union and the state’s largest school district.

The Tuesday decision follows a preliminary injunction issued by another district court judge last week that found an illegal teacher’s strike had occurred as a recent wave of teacher absences forced some Clark County schools to temporarily shutter. 

That injunction, issued last Wednesday by Judge Crystal Eller, sought to stop rolling sickouts and warn union members of the consequences of breaking the law — but stopped short of CCSD’s request asking the court to compel the union to discourage its members from taking action that could be construed as a strike. 

An emergency request to stay that injunction — a legal maneuver that would have negated the order while a more thorough appeal continued — was rejected by the state Supreme Court on Friday

Tuesday’s hearing, however, centered on a different and specific legal argument from the teachers union that even if state law prohibits public employees from striking, the district’s lawsuit improperly sought to limit the union’s ability to threaten a strike — something it said was still protected by the First Amendment. 

Under that framework, Bradley Schrager, an attorney representing CCEA, had filed a motion earlier this month arguing for the application of the so-called anti-SLAPP law, a statute used in Nevada and elsewhere designed to prevent the use of frivolous lawsuits to chill speech, often in defamation cases. 

Schrager acknowledged in his arguments Tuesday that the use of the anti-SLAPP statute in this case was “novel” and unlikely to succeed at the district court level. However, he also argued that the potential legal interactions between the anti-SLAPP law and the prohibition on striking was not defined by existing legal precedent, and urged the judge, Jessica Peterson, not to deny the motion.

“I see this as a First Amendment case in which the union has the right to say almost anything it wants, as long as it doesn't indicate to you that a strike is about to happen,” Schrager said. 

But Ethan Thomas, an attorney representing the district, countered that the speech of union members or union Executive Director John Vellardita was not the target of its lawsuit — rather the action of a strike itself. 

“If we were to accept their interpretation of this anti-SLAPP statute in this case, it would strain belief that the Legislature intended to nullify a fundamental provision [of the strike prohibition law] through the [anti-SLAPP law],” Thomas said. “They haven't cited any cases that are even close to this type of a scenario where the statute prescribes the ability to petition the court based on threats [of a strike].”

Peterson ultimately issued a “very, very narrow” preliminary denial of the motion from the bench on Tuesday, on the grounds that the anti-SLAPP claim had “minimal merit” to stop the injunction. She also signaled that she would later issue a full written opinion exploring “some interplay that is novel” between the two laws. 

Still, she said the union’s speech could be construed as evidence of a potential strike, even if the speech itself is constitutionally protected. 

“That's where I think that the disconnect, quite frankly, from both sides is happening,” Peterson told Schrager. “It's not so much that the court is attempting to enjoin the actual speech of ‘we are going to strike,’ because that's a free speech issue. It's whether or not that speech can be utilized to support the injunctive relief that is being requested.” 

In a statement released after the hearing, CCSD lauded the judge for making “the correct ruling today against CCEA.” 

“To try and characterize the District’s complaint for an injunction as anything other than an attempt to stop the commencement or continuation of a strike is disingenuous,” the statement said.

A spokesperson from CCEA said in a statement that the union disagreed with the decision and would appeal the anti-SLAPP question to the state Supreme Court.


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