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Justices To Weigh Case of Public Employee Fired for Speaking Out

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Washington

In an education case decided 25 years ago, the U.S. Supreme Court held that teachers and other public employees could not be fired for speaking out on matters of public concern.

In that 1968 case, Pickering v. Board of Education, and subsequent cases, the High Court has set some of the contours for balancing the First Amendment rights of public employees with the need for school districts and other government agencies to operate efficiently and get rid of disruptive workers.

Last week, the Court again took up the issue of where to draw such lines. The Justices heard arguments Dec. 1 in the case of a nurse fired from a public hospital after she criticized the operation of her department in a conversation with another nurse.

Officials of McDonough District Hospital in Macomb, Ill., say the nurse was fired because they believed her comments amounted to insubordinate griping about her superiors. The nurse, Cheryl Churchill, argues that she was commenting about a matter of public concern--problems with the obstetrics department and its impact on patients--and is protected by the First Amendment.

The question before the Court is whether public employers can be held liable for wrongful discharge when they fire someone for making insubordinate comments that later are determined to be protected speech on a matter of public concern.

Impact for Educators

In a friend-of-the-court brief filed on behalf of the nurse, the National Education Association says the case of Waters v. Churchill (Case No. 92-1450) could have important implications for public school employees.

The N.E.A. argues that "a First Amendment unlawful-discharge claim ... does not depend on any showing that the employer had a 'motive' or 'intent' to punish the employee for engaging in protected speech. A First Amendment violation is established ... whenever the purpose or effect of the discharge is to punish the employee for engaging in protected speech.''

Lawyers for the hospital officials, for the Justice Department, and for many state and local governmental groups argue, however, that if public employers do not realize they are punishing employees for engaging in protected speech, then they cannot be held liable for violating the free-speech rights of those employees.

In the nurse's case, a federal district court threw out her lawsuit seeking damages and reinstatement to her job. But the U.S. Court of Appeals for the Seventh Circuit remanded the case for a jury trial to determine whether her comments were protected speech. The court held that public employers are liable for firing an employee engaged in protected speech, regardless of whether the employer knew that the speech was about a matter of public concern at the time of the discharge.

During arguments before the High Court, the nurse's lawyer, John H. Bisbee, said the case centers on the kind of speech most often engaged in by employees--chatting with co-workers on coffee breaks, in lunchrooms, and in hallways about their employer's operations.

'Why Tell a Subordinate?'

Associate Justice Antonin Scalia said he would feel more comfortable about the nurse's speech being protected if she had complained to the hospital board of trustees or to a newspaper.

"If she was telling the board of trustees, that's one thing, but why tell a subordinate nurse'' her complaints, Justice Scalia asked.

Mr. Bisbee said public employees have the right to discuss agency problems among themselves before discussing them with supervisors.

Several Justices questioned whether employee speech on public matters had limits during work hours.

"Do you think that protected speech could sufficiently disrupt [the workplace] to justify firing'' an employee, Associate Justice Sandra Day O'Connor asked.

"I do. I concede that,'' Mr. Bisbee said.

The Court will decide the case by next July.

N.J. Appeal Denied

In separate action last week, the Court:

  • Declined to intervene in a dispute between the school boards of Englewood Cliffs and Englewood, N.J., over whether they must maintain a sending and receiving relationship for high school students.

State education officials and courts have denied the Englewood Cliffs district's attempts to stop sending its students to high school in Englewood because the change would upset racial balances in the schools. The case was Board of Education of the Borough of Englewood Cliffs v. Board of Education of the City of Englewood (No. 93-373).

  • Denied an appeal by Colorado State University, in Colorado v. Roberts (No. 93-559), of lower-court orders to establish a women's softball team to correct a violation of sex-discrimination law in its athletic programs.


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