In Love-Lane v. Martin, a split panel of the Fourth Circuit concluded that a school superintendent was not entitled to qualified immunity on claims that he retaliated against an assistant principal for her speech on a matter of public concern involving racism in the public schools. Judge Michael joined by Judge Gregory wrote the opinion for the majority, and Judge Wilkinson dissented on the qualified immunity issue.
Well, the dissent gets my vote on this one. The dissent makes the point that the effect of the denial of qualified immunity in another race case is to make life too hard for government officials charged with maintaining employee discipline. In Cromer, and now again in Love-Lane, the Court has declared that matters of race are so taboo that no reasonable official would think he could take adverse action against an employee who speaks out on racial matters - without ironclad proof that the speech was not the reason. The result may be that sensible administrators will make their disciplinary decisions regarding such individuals based on the availability of courtroom evidence to prove employee misconduct, rather than their best judgment about what is the right thing to do.
Also, there is a strange reliance in the majority's opinion about the significance of the plaintiff's own characterization of the manner of her speech. I would not have thought from other cases that this kind of self-assessment evidence would be insufficient to create a genuine dispute of material fact. Compare Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 135 (4th Cir. 2002) (evidence that amount[s] to no more than subjective belief . . . is insufficient to create a genuine issue of material fact as to any discriminatory conduct); DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (the plaintiff's perception of [her]self . . . is not relevant).