Public Employees’ Speech Rights Curtailed

But justices say ruling could differ for a case on academic freedom.

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Speech by government employees in the course of their job duties is not protected by the First Amendment from disciplinary action, the U.S. Supreme Court ruled last week, in a 5-4 decision that critics fear could muzzle “whistleblowers” who ferret out government waste and wrongdoing.

The case was being watched closely by education law experts for its potential impact on teachers in public schools and colleges. But the court’s majority drew a significant distinction between most forms of job-related speech by public workers and that which might affect academic freedom.

Speech Class

In Garcetti v. Ceballos, the U.S. Supreme Court last week held that public employees have no First Amendment protection for speech connected to their official duties. Excerpts from the opinions address the ruling’s potential impact in the sphere of public education.

From the majority opinion by Justice Anthony M. Kennedy:
Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.

From the dissenting opinion of Justice David H. Souter:
[I]t stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen’s interest in addressing the quality of teaching in the schools? (Still, the majority indicates he could be fired without First Amendment recourse for fair but unfavorable comment when the teacher under review is the superintendent’s daughter.)

“We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching,” Justice Anthony M. Kennedy wrote for the majority in Garcetti v. Ceballos (Case No. 04-473).

“We were ecstatic [when we read that],” said Michael Simpson, the assistant general counsel of the National Education Association, who had feared a more sweeping decision might find no constitutional protection for statements teachers make in the classroom. “I do think we lived to fight another day.”

Not a Federal Case

The case originated in the Los Angeles County district attorney’s office, where Richard Ceballos, a supervising prosecutor, reviewed a criminal investigation in the course of his duties and wrote a memo to his superiors detailing what he viewed as errors by investigators.

Defense lawyers in the resulting court case called Mr. Ceballos to testify about his findings. After the case was concluded, he found himself reassigned to duties and a location that he considered to be a retaliatory demotion and punishment. He sued, arguing that the memo was speech that was constitutionally protected. The U.S. Court of Appeals for the 9th Circuit, in San Francisco, agreed and reversed a federal district court ruling. Los Angeles County appealed to the Supreme Court.

In its May 30 ruling, the Supreme Court rejected the idea that the First Amendment shields speech by public employees in the course of their regular duties from discipline by their employers.

“Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job,” Justice Kennedy wrote in an opinion joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr.

Prior Supreme Court decisions have found that government employees have free-speech protections when they speak as citizens on matters of public concern. In those cases—notably some involving schoolteachers who spoke about school district funding or operations—the court has balanced the value of employees’ speech against the impact on the operations of their agencies. ("Court Mulls Protection for Public-Employee Speech," Oct. 19, 2005.)

In the main dissent, Justice David H. Souter said that balancing test should apply to public employees who speak in the course of their jobs.

“A public employee can wear a citizen’s hat when speaking on subjects closely tied to the employee’s own job … even when the speech is not addressed to the public at large,” he wrote in an opinion joined by Justices John Paul Stevens and Ruth Bader Ginsburg. Justice Stevens also wrote a short, separate dissent, while Justice Stephen G. Breyer wrote his own dissent focusing on some of the speech obligations of those in the legal profession.

Justice Souter said the majority’s different treatment of public employees based on whether they speak publicly or in the course of their jobs would protect a teacher who complained to the principal about a hiring policy, because that was not part of the teacher’s job, but not a school personnel officer if he protested that the principal disapproved of hiring minority job applicants.

“This is an odd place to draw a distinction” and without justification, Justice Souter said.

One Paragraph

Justice Souter expressed fears that the court’s decision could endanger academic freedom, with “even the teaching of a public university professor” being removed from the protection of the First Amendment.

But Justice Kennedy sought to allay such fears with his comment that the court would consider a case involving “scholarship or teaching” in a different light.

“There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court’s customary employee-speech jurisprudence,” Justice Kennedy said.

Mr. Simpson of the NEA said that the majority opinion’s mention of academic freedom was heartening, in light of some recent federal appeals court cases that have discounted the concept.

“We got a whole paragraph, and a powerful one,” he said. “It says academic freedom is not dead.”

Yet Tom Hutton, a lawyer with the National School Boards Association, in Alexandria, Va., said the references to academic freedom by Justices Kennedy and Souter probably applied only to higher education, because of the particular role that colleges and universities play in the marketplace of ideas, and not to K-12 schools.

Both education organizations had filed friend-of-the-court briefs in the case, the NEA on Ceballos’ side and the NSBA on the side of Los Angeles County.

But school employees also speak on non-academic matters, and Randi Weingarten, the president of the United Federation of Teachers in New York City, said of the decision, “Instances just such as this are why the UFT is pursuing a [New York state whistleblower] statute to clarify the rights of public employees.”

Alito’s Role

Mr. Simpson said the NEA was also concerned about the impact of the case on school employees who discover wrongdoing and fear that the laws in some states to protect whistleblowers are inadequate. He said he would recommend that local unions consider negotiating with districts to add protection for employees’ speech to union contracts.

The Supreme Court heard arguments in the case twice, once last October and again in March. The reargument came about because the arrival of Justice Alito on the court in January, to replace retiring Justice Sandra Day O’Connor, had potential to tip the balance of votes on the closely divided case, which apparently it did, legal observers said.

Vol. 25, Issue 39, Pages 27, 29

Published in Print: June 7, 2006, as Public Employees’ Speech Rights Curtailed
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