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The Garcetti Effect and the Erosion of Free Speech Rights of K–12 Public Education Employees: Trends and Implications


by Lewis M. Wasserman & John P. Connolly — 2017

Background/Context: Pickering v. Board of Education, decided by the U.S. Supreme Court in 1968, is considered the high-water mark in the constitutional protection of public employee free speech. Two significant decisions issued by that Court since Pickering have limited public employees’ expressive rights: Connick v. Myers (1983) and Garcetti v. Ceballos (2006).

Purpose/Objective/Research Questions/Focus of Study: The principal research questions which were the focus of this study are: is the adverse effect on free speech presumed by legal analysts following Connick and Garcetti having real effects in terms of judicial voting behavior and, if so, how has this occurred?

Research Design: We set up legal precedent and the judge’s ideology as predictors of judicial voting behavior. The legal precedent variable delineates three intervals, namely the Pickering era [1968–1983], the Connick era [1983–2006) and the Garcetti era [2006–2014]. Two different measures of ideology are considered: party affiliation and the judge’s DW-NOMINATE score. The dependent variable is the judge’s individual vote in each case. Votes are categorized as pro-employer or pro-employee.

Data Collection and Analysis: Because our interest is specific to K–12 settings we analyze 507 judicial votes drawn from the 169 U.S. Courts of Appeals employer-employee free speech cases brought by school employees between the issuance of Pickering in 1968 and the post-Garcetti period into 2014. Since our dependent variable is dichotomous the statistical estimates are obtained via logistic regression.

Conclusions/Recommendations: We find that employee-plaintiffs are prevailing at lower rates at the U.S. Courts of Appeals in free speech claims against public school districts following the Garcetti decision. Since Garcetti, Courts of Appeals judges—those appointed by both Republican and Democratic presidents—have voted in an increasingly pro-employer direction. We contend this results from “doctrinal signaling,” here, the progressive curtailment in the Supreme Court of public employees’ free speech rights from Connick v. Myers in 1983 to Garcetti. We suggest this “signaling” is used by Courts of Appeals judges as an interpretive tool to give meaning to apparently ambiguous decisions such as Garcetti. Finally, the impact and implications of this negative trend for K–12 employees, as well as possible solutions, are considered.



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Cite This Article as: Teachers College Record Volume 119 Number 6, 2017, p. -
http://www.tcrecord.org ID Number: 21787, Date Accessed: 3/28/2017 1:50:23 PM

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About the Author
  • Lewis Wasserman
    University of Texas at Arlington
    E-mail Author
    LEWIS M. WASSERMAN, J.D., Ph.D. is an Associate Professor of Educational Leadership and Policy Studies at the University of Texas at Arlington. He engaged in the private practice of law for 23 years in New York, specializing in public education and civil rights litigation, before entering the academy. He also teaches Education Law at SMU Dedman College of Law in Dallas. His recent articles include: "United States Supreme Court justices’ voting in systemic racial discrimination cases in education" in The Urban Lawyer (2015) (with John P. Connolly); "Overcoming obstacles to religious exercise in K–12 education" in Journal of Legislation(2011); and "Gun control on college and university campuses in the wake of District of Columbia v. Heller and McDonald v. City of Chicago" in Virginia Journal of Policy & The Law(2011).
  • John Connolly
    University of Texas at Arlington
    E-mail Author
    JOHN P. CONNOLLY is a data scientist with the Office of Information Technology at the University of Texas at Arlington. He holds a Ph.D. in political science and master’s degrees in Liberal Studies and Business Administration, as well as a bachelor’s of Engineering. His recent publications in 2015 include "Ideological constraint: History and current status of the concept" in the International Encyclopedia of Social and Behavioral Studies, and "United States Supreme Court justices’ voting in systemic racial discrimination cases in education" in The Urban Lawyer (2015) (with Lewis M. Wasserman).
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