The First Amendment lawsuit charges that Duarte is refusing to allow Herman to substitute teach at English High because the headmaster is angry that Herman, on his own time, testified at a Boston City Council hearing against the school department spending 1.2 million dollars for Junior Reserve Officer Training Corps (JROTC) programs in the Boston public schools.

After Duarte, a former military man who has Reveille played over the school loudspeaker in the mornings, became aware of Herman's testimony, he told the substitute teacher to get out of the school, that he was not wanted there, and then put Herman's name on a "do not call" list for substitute teachers for English High School.

"I testified to city councilors that taxpayer dollars would be better spent on teaching kids how to stop the violence that is plaguing our city," said Herman. "Apparently Headmaster Duarte couldn't tolerate my expressing that point of view."

Sarah Wunsch of the ACLU, one of the attorneys representing Herman, noted that public employees, including school teachers, have the right to speak out as citizens on matters of public concern. "That is exactly what Jeffrey Herman was doing when he testified to the City Councilors about the use of education money for JROTC," Wunsch said.

Matthew Dwyer, an attorney for the Boston Teachers Union who is also representing Herman, pointed out that Herman had apparently been valued as a longtime and experienced substitute teacher. "Until his testimony at the City Council hearing, Jeff was given extra responsibilities at English High mentoring failing students and helping students after school with their homework, something few other substitutes did. Putting him on the "do not call list" was plainly retaliation for the views he expressed at the Council hearing. No government official has the right to punish someone for expressing ideas outside of school simply because the official disagrees."

The lawsuit, Herman v. Duarte, was filed in Federal District Court in Boston (Civil Action No. 06-11891-RWZ). The lawsuit seeks a declaration that placing Herman on the "do not call" list violated his First Amendment right to speak out on matters of public concern. It also seeks a court order that Herman be allowed to resume substitute teaching at the high school and compensation for violation of his First Amendment rights.

The lawsuit has been brought jointly by the ACLU of Massachusetts and attorneys at Dwyer Duddy & Facklam for the Boston Teachers Union on Herman's behalf.