Scholars: Teachers Face Less Protection for Job-Related Speech

By Mark Walsh — November 21, 2008 2 min read
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San Antonio—On-the-job speech by teachers and other public school employees is getting less protection in the courts.

That’s the conclusion of two scholars presenting here at the annual meeting of the Education Law Association. The Dayton, Ohio-based group is made up of K-12 educators, school lawyers, and many professors who teach school law as part of educational leadership programs.

Richard T. Geisel, an assistant professor of educational leadership at Grand Valley State University in Grand Rapids, Mich.; and Brenda R. Kallio, an associate professor in that discipline at the University of North Dakota in Grand Forks, analyzed recent federal cases involving adverse job actions against public school employees based on their speech.

The key development is a 2006 decision by the U.S. Supreme Court in Garcetti v. Ceballos, a case arising out of a prosecutor’s office in which the justices ruled that speech by public employees “pursuant to their official duties” is not protected by the First Amendment.

A number of federal appeals courts have applied the ruling to school employee cases, despite some uncertainty caused by language in Justice Anthony M. Kennedy’s majority opinion in Garcetti suggesting that the high court might view a employee speech case related to “scholarship or teaching” differently.

“Regardless of dicta in Justice Kennedy’s opinion, Garcetti is being applied to school cases,” Geisel said in his presentation here on Nov. 20.

Geisel and Kallio found that since Garcetti was decided, six separate federal appeals courts have applied Garcetti to public school speech cases, usually to rule that the speech was unprotected.

For example, the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled against a school superintendent who complained to her school board and the federal government about irregularities in a Head Start program was not engaged in protected speech. The court held in Casey v. West Las Vegas Independent School District that the speech by the superintendent, who was demoted and later dismissed, was related to her job and thus fell under the standard of Garcetti.

Geisel and Kallio noted that two other federal circuit courts have declined to apply Garcetti in the educational context.

In their paper, the two scholars say it may be premature to characterize the full impact of Garcetti on education, but “one must acknowledge that Garcetti has already made a substantial impact on the analysis many of the federal circuits engage in when reviewing such cases.”

UPDATE: Geisel e-mailed me to point out that in the Casey case in the 10th Circuit, the court did allow the superintendent’s retaliation case to move forward based on a separate communication she had with the state attorney general about alleged open-meetings law violations by her board. Geisel had mentioned this in his presentation, and I failed to note it in my post above.

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