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Court Divides in Case of Public Worker Fired for Speaking Out

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Washington

A splintered U.S. Supreme Court last week slightly improved the legal position of government agencies, including school districts, that are sued by employees who are dismissed because of something they said in the workplace.

In a case involving a nurse fired from a public hospital in Illinois because of comments that her supervisors deemed disruptive and insubordinate, the High Court voted 7 to 2 to vacate a lower-court decision that would have required a jury to determine whether the woman's comments amounted to free speech protected by the First Amendment.

But the Court issued four separate opinions in the case of Waters v. Churchill (Case No. 92-1450), with none commanding a majority of Justices. That result left the Court's decision open to interpretation, and in one respect, the Justices actually expanded procedural protections for workers.

Educators considered the case important because it is the latest in a series of Supreme Court rulings that balance the free-speech rights of public employees with the need of public agencies to operate efficiently and remove disruptive workers. The National Education Association filed a brief in the case calling for a broad interpretation of public employees' free-speech rights. (See Education Week, Dec. 8, 1993.)

The High Court has long held that public employees are protected from dismissal or discipline that is based on comments about matters of public concern. For example, a public school teacher could not be dismissed for making comments about a school-bond election, as long as the comments were not disruptive to the workplace.

The issue in the Illinois case was whether a government employer can take disciplinary action based on what supervisors believe the employee said.

Nurse Fired for Comments

The case involved Cheryl Churchill, an obstetrics nurse at McDonough District Hospital in Macomb, Ill., who was fired after making comments to another nurse about the hospital's staffing policies. Hospital officials believed that Ms. Churchill's comments amounted to insubordinate griping about her superiors. The nurse argued that she was speaking about a matter of public concern--the operation of the hospital.

In a victory for the nurse, the U.S. Court of Appeals for the Seventh Circuit ruled that public employers can be held liable for firing an employee engaged in protected speech, even it it is not determined until later--by a jury--that the speech in question was protected.

But the Supreme Court last week rejected that view and returned the case to the Seventh Circuit court for further proceedings.

In the main opinion, Associate Justice Sandra Day O'Connor said that government employers must make a reasonable effort to investigate whether the disputed comments were disruptive or were about matters of public concern.

But she added that public employers are entitled to wider latitude to exert control over their employees' speech than they have to control the speech of the public at large. She said courts can judge employee-speech cases based on the supervisors' conclusions about the facts of the disputed speech rather than on what a jury later determines.

"We think employer decisionmaking will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be,'' Justice O'Connor wrote in a plurality opinion joined by Chief Justice William H. Rehnquist and Associate Justices David H. Souter and Ruth Bader Ginsburg.

Justice O'Connor's opinion was criticized from two different perspectives by other members of the Court.

Associate Justice Antonin Scalia, writing a concurrence for himself and Associate Justices Anthony M. Kennedy and Clarence Thomas, said that the requirement that employers conduct an investigation into what a worker said before taking disciplinary action creates "a broad new First Amendment procedural right'' for public employees and subjects employers to "intolerable legal uncertainty.''

But Associate Justices John Paul Stevens and Harry A. Blackmun argued that the plurality did not go far enough to protect the First Amendment rights of public employees.

"Unfortunately, the plurality underestimates the importance of freedom of speech for the more than 18 million civilian employees of this country's federal, state, and local governments, and subordinates that freedom to an abstract interest in bureaucratic efficiency,'' Justice Stevens wrote in a dissent.

Dallas Youth Curfew

Also last week, the Court declined without comment to hear Qutb v. Bartlett (No. 93-1571), a constitutional challenge to Dallas's curfew on minors.

The city ordinance forbids anyone under age 17 to be out in public between 11 P.M. and 6 A.M. on weeknights, and midnight and 6 A.M. on weekends.

The U.S. Court of Appeals for the Fifth Circuit upheld the law last fall. The appellate court concluded that the measure was justified by an increase in juvenile crime and attacks against juveniles.

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