Tuesday
April 08, 2008
A fascinating piece in the Teachers College Record outlines a threat to freedom of speech for teachers that was created by a 2006 Supreme Court decision.
Back in 1968, the court ruled in favor of an Illinois teacher who was fired after criticizing the way the local school board spent money on athletics.
[T]he Court affirmed for the first time that public school teachers do not relinquish their constitutional right to free speech on matters of public concern simply because they work in the public sector (Pickering v. Board of Education, 1968)...In deciding whether a teacher’s First Amendment rights have been violated, a court must weigh the interest of a teacher, as a citizen, to speak out on matters of public concern against the school board’s legitimate interest in maintaining the efficiency of the workplace.
So, for almost forty years, courts applied this standard to cases involving public employees who were fired after speaking out against their employers.
And then in 2006, the court changed its position in a case called Garcetti v. Ceballos.
“We hold,” the Court wrote, “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” (126 S. Ct. 1960).
In other words, if you are speaking in your capacity as an employee, your speech is not protected as free speech under the First Amendment.
The NEA, trying to be hopeful, pointed out that the decision itself included language implying that teachers, among public employees, might enjoy a higher level of protection, as in this quote from Justice Kennedy’s opinion:
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.
But in 2007 the Fifth Circuit court used the Garcetti decison to rule against a Dallas teacher who was fired--much like in the original Pickering case--after writing memos to his principal detailing perceived problems in the way athletic funds were being spent.
The TC Record piece concludes,
In years to come, we will probably see more federal courts apply the Supreme Court’s Garcetti analysis to cases in which school employees claim they were retaliated against for reporting wrongdoing in the public workplace. In most instances, school employees are going to lose these cases and possibly their jobs. For those who believe that school employees should be encouraged to report workplace wrongdoing—not discouraged, Garcetti is indeed unfortunate.
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