dissenting:
In a thoughtful opinion, the district court denied qualified immunity to six defendants in this case. Because I agree with the district court’s analysis, I respectfully dissent.
Reliance on Brewster v. Board of Education, 149 F.3d 971 (9th Cir.1998), which grafted a balancing test under Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), into a quali*1090fied immunity analysis, is misplaced in this case. The thrust of a Brewster inquiry is whether the purported exercise of First Amendment rights is constitutionally protected in a given context. As the Brewster court put it:
The issue the court must decide, therefore, is whether the outcome of the Pickering balancing test so clearly favored Brewster that it would have been patently unreasonable for the school officials to conclude that the First Amendment did not protect his speech.
149 F.3d at 980 (citation omitted).
However, that question is not at issue in this case. Indeed, everyone concedes that Lytle’s prior litigation was constitutionally protected speech because it involved a matter of public concern. See Rendish v. City of Tacoma, 123 F.3d 1216, 1223 (9th Cir.1997), cert. denied — U.S. -, 118 S.Ct. 2368, 141 L.Ed.2d 737 (1998). Thus, it is inappropriate to apply the balancing discussed in Pickering and Brewster because the question of whether Lytle was engaged in constitutionally protected activity was already settled. A Pickering balancing is only required when there is doubt about whether the speech should be afforded constitutional protection given the context of the public workplace. Because that question is not at issue, it is not proper to apply an additional Pickering threshold analysis.
At the time of the alleged retaliatory actions in this case, Lytle had a clearly established right to be free from retaliation for exercising her First Amendment right of access to the courts. See Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir.1989) (holding that deliberate retaliation by state actors against an individual’s exercise of the right of access to the courts was actionable under § 1983). Pickering itself clearly established that a teacher’s exercise of First Amendment rights could not furnish the basis for an adverse employment action. See Pickering, 391 U.S. at 574, 88 S.Ct. 1731.
In a careful analysis of Lytle’s contentions, Judge Ezra determined that she had presented proof of actual retaliation for the exercise of her right to access to the courts sufficient to survive summary judgment. Lytle tendered evidence that she was singled out for disciplinary treatment, refused access to classroom materials, improperly denied sick leave, given a written reprimand directing her to drop her complaints and received a death threat in a mailbox to which only school employees had access. Given that the type of sanction imposed by public employers need not be particularly great in order to find that rights have been violated, see Hyland v. Wonder, 972 F.2d 1129, 1135 (9th Cir.1992), the district court appropriately concluded that triable issues of fact existed.
Even if a Pickering analysis were appropriate in this context, qualified immunity could not be granted on the basis of this record. There was no evidence tendered to the district court on the question of whether Lytle’s assertion of her rights by successfully obtaining a judgment in a lawsuit “impeded the teacher’s proper performance of his daily duties” or “interfered with the regular operation of the schools generally[,]” as Pickering put it. See 391 U.S. at 572-73, 88 S.Ct. 1731. Indeed, the theory argued by the defense to the trial court was not that the exercise of rights was disruptive to school operation, but rather that legitimate, non-discriminatory reasons supported the adverse employment actions. There is a substantial difference between the theories. Although the existence of non-discriminatory rationale is a legitimate defense, it is not a Pickering or Breioster defense. Thus, even if Brewster were applicable to this case, the record cannot support summary judgment on qualified immunity. To determine, as a matter of law, that Lytle’s assertion of her constitutional rights was so disruptive that it interfered with school *1091operation, one must resort to speculation outside the record. That, as a matter of law, is insufficient under Pickering, in which the Supreme Court made a specific finding that activities were “neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally.” Id. Although the arguments in this case clearly demonstrate that the parties are unhappy with each other, significant interference with government operations must be shown, not presumed.
Although the Pickering defense was asserted to us at oral argument, a different theory was argued to the district court. Thus, even if we were to deviate from the normal appellate practice of declining to address arguments that were not the basis for the appealed decision, see Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 86, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988), the record does not furnish us the ability to do so.
In sum, I respectfully suggest that (1) the majority has applied Brewster and Pickering to a circumstance for which balancing was not intended, or appropriate, and (2) the record does not support the results of a balancing inquiry articulated by the majority. I would affirm Judge Ezra’s well-reasoned qualified immunity analysis. Accordingly, I respectfully dissent.