Appeals Court Boosts Speech Protection for ‘Teaching’

By Mark Walsh — September 09, 2013 3 min read

A federal appeals court has boosted free-speech protection for “teaching and writing on academic matters by teachers employed by the state.”

The ruling came in a higher education case, but the court did not clearly foreclose its application to K-12 teachers in addition to university professors.

The decision by a three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, is a significant departure from how many lower courts have interpreted a key U.S. Supreme Court ruling on the speech rights of teachers and other education employees for expression related to their official duties.

In its 2006 decision in Garcetti v. Ceballos, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

That decision has been applied widely on the side of K-12 and higher education employers, despite a passage in the Garcetti opinion that reserved the question of whether the same “official duties” standard would apply to “speech related to scholarship or teaching.”

For example, the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled in 2007 that Garcetti applied to K-12 teachers’ instruction in the classroom.

“The First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system,” the 7th Circuit court said.

The 9th Circuit case involves David Demers, a tenured associate professor at Washington State University, who alleged he faced retaliation for distributing a pamphlet and other documents related to a reorganization of the university’s College of Communication. He sued alleging a violation of his First Amendment speech rights.

A lower court held that the documents at issue were distributed pursuant to the professor’s employment duties, and based on Garcetti it granted summary judgment to the university and other defendants.

In its unanimous Sept. 4 ruling in Demers v. Austin, the 9th Circuit court panel held that “Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.”

Instead, the court said, the professor’s writings should be analyzed under the test established in a 1968 Supreme Court decision, Pickering v. Board of Education of Township High School District 205.

Under the Pickering test, which arose out of a case involving a high school teacher’s letter to a newspaper complaining about the school budget, a public employee’s speech is protected if it is on a matter of public concern and if the employee’s interest outweighs the public employer’s interest in an efficient workplace.

The 9th Circuit held that at least one of the documents at issue in the professor’s case was on a matter of public concern, and it sent the case back to a lower court for further proceedings.

By its discussion of “academic freedom” as developed by the Supreme Court in several higher education cases, the 9th Circuit court made clear that it was significantly limiting the effect of Garcetti for postsecondary education.

What is less clear is whether the appeals court decision also applies to K-12 teachers. Many legal commentators believe that the higher education conception of academic freedom does not apply to elementary and secondary school teachers, though the teachers’ unions disagree.

The 9th Circuit court’s decision speaks repeatedly of “teaching and writing on academic matters” and “teachers employed by the state.”

"[T]eaching and academic writing are at the core of the official duties of teachers and professors,” said the decision by U.S. Circuit Judge William A. Fletcher. “Such teaching and writing are a special concern of the First Amendment.”

The court also never explicitly said its references to teaching were limited to higher education. And its reliance on Pickering, a K-12 case, could lend further support to an interpretation that provides broader speech protection to elementary and secondary teachers.

It will take the next case, one involving job-related speech by a K-12 teacher, to answer the question more definitively.

A version of this news article first appeared in The School Law Blog.

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