Teachers' First Amendment Rights Are Shrinking in the Wake of a 2006 Supreme Court Decision: That Can't be Good
by Richard Fossey & Charles J. Russo - January 23, 2008
In 2006, the U.S. Supreme Court issued its decision in Garcetti v. Ceballos, an opinion that sharply restricts the First Amendment's protection for a public employee who reports wrongdoing in the workplace. In years to come, we will likely see federal courts apply the Supreme Court’s Garcetti analysis to cases in which school employees claim they were retaliated against for reporting workplace wrongdoing to their superiors. 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.
Less than two years ago, the Supreme Court decided a First Amendment case that is destined to have a major impact on the free speech rights of public school teachers. In Garcetti v. Ceballos (2006), the Court ruled that a deputy attorney general enjoyed no constitutional protection for statements he made in the course of performing his official duties even though his speech called attention to possible wrongdoing in his workplace. While Garcetti involved a law enforcement official, not a teacher, federal courts have already begun applying its principles to cases arising in the public schools. So far, the outcomes of these federal cases show that the free speech rights of school employees to speak out in the workplace are diminishing.
A Public School Teachers First Amendment Rights: A Brief Overview
More than forty years ago, Marvin Pickering, a school teacher in Illinois, wrote a letter to a local newspaper, in which he criticized the local school board for the way it spent money on athletics. The board took offense, claiming that Pickering unfairly impugned its honesty, integrity, and competence. After conducting a hearing on the matter, the board fired Pickering.
Pickering sued and took his case all the way to the United States Supreme Court. In a 1968 decision, the 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). The Court articulated what has since been labeled the Pickering balancing test. In deciding whether a teachers 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 boards legitimate interest in maintaining the efficiency of the workplace.
In Pickerings case, the Supreme Court concluded, Pickerings epistle did not disrupt the work of the school district. His letter had not created disharmony among his coworkers, disrupted close working relationships, or impeded Pickering in the performance of his daily teaching duties. In fact, the Court concluded, Pickerings letter was greeted by nearly everyone with massive apathy and total disbelief.
In such circumstance, the Supreme Court concluded, Pickering had a constitutional right as a citizen to participate in the public debate about the school boards financial decisions. Thus, the Court determined that the school board had acted unconstitutionally in firing Pickering for publicly criticizing it in a letter to the local newspaper.
Since Pickering, the Supreme Court has refined its First Amendment jurisprudence with regard to the free speech rights of public employees. In order to be constitutionally protected, the Court wrote in Connick v. Myers (1983), a public employees speech must pertain to a matter of public concern. The Court explained that mundane workplace disputes (about an employees working conditions, for example) are of no general interest to the public. As such, the Court decided that an employees speech about a purely personal employment issue is not constitutionally protected.
In 2006, however, in Garcetti v. Ceballos, the Supreme Court restricted a public employees free speech rights considerably when it ruled that an assistant district attorney enjoyed no constitutional protection when he was disciplined for engaging in speech in his official capacities as a public employee. In that case, Richard Ceballos, a deputy district attorney, raised concerns to his supervisors about alleged misrepresentations made in an affidavit that prosecutors had used to obtain a search warrant.
Later, Ceballos claimed, he was subject to a series of retaliatory actions, including reassignment to another courthouse and the denial of a promotion. Ceballos unsuccessfully filed an employment grievance. Ceballos then sued, claiming that his supervisors retaliated against him for exercising his First Amendment rights.
Ultimately, Ceballos made its way to the Supreme Court. In a 5 to 4 decision, the Court rejected Ceballos First Amendment charge for the simple reason that the speech that formed the basis for his claim had been made pursuant to Ceballos job duties.
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).
The Court concluded its analysis with two cautionary notes. First, the Court noted that it rejected the suggestion that its holding would allow public employers to restrict their employees free speech rights by creating excessively broad job descriptions (126 S. Ct. 1961). The Court indicated that the listing of a task on an employees job description was neither necessary nor sufficient to determine whether the employee was speaking within the scope of his job duties for First Amendment purposes.
The court also acknowledged that different constitutional considerations might apply to employee speech cases in an academic setting. The Court made clear that it was not deciding whether its analysis in Garcetti v. Ceballos would apply to employee speech that is related to scholarship or teaching.
In the wake of Garcetti, lower federal courts have used the Supreme Courts Garcetti decision to decide several free speech cases involving school employees. Perhaps the most interesting of these cases is Williams v. Dallas Independent School District (2007).
Williams v. Dallas Independent School District: Garcetti is Applied to an Educator
In early 2007, the Fifth Circuit applied Garcettis reasoning to a dispute between a high school football coach and the Dallas Independent School District (Williams v. Dallas Independent School District, 2007). In the fall of 2003, Gregory Williams, football coach and athletic director at Dallas ISDs Pinkston High School, began asking inconvenient questions about the way funds were being expended from the schools athletic account. Williams repeatedly asked the schools business manager for information about how the accounts funds were appropriated for athletic activities. In September 2003, Williams wrote a memorandum to the schools office manager (with a copy to the school principal), in which he protested the office managers fail[ure] to provide [him] with any information and/or balance pertaining to [the athletic] account. Williams questioned as extremely unusual a previous incident in which the business manager had said that the account had a negative balance even though $1,000 had been credited to the account and Williams had made just one purchase from the account for an amount of less than $200. Williams concluded his memorandum by saying, Your failure to provide me with [an] account balance, despite numerous requests, has hurt my ability to provide our student/athletes with critical items and/or materials necessary for competition (p. 690).
Later, Williams wrote the school principal a memorandum, again protesting the way monies were expended from the athletic account. I am attempting to operate the athletic department based on standard operating procedures and norms throughout the state of Texas, Williams wrote. However, I have found that there is a network of friends and house rules, which govern practices here at L.G. Pinkston High School (p. 691).
Four days after receiving this memorandum, the principal removed Williams as athletic director at the high school. This removal was later elevated to emergency removal and administrative leave. In the spring of the 2003-2004 school year, the board of the Dallas ISD decided not to renew Williams contract.
It is not clear whether Williams complaints about the athletic account had any merit. However, shortly after Williams was placed on administrative leave, officials in Dallas put the principal and office manager on administrative leave pending an investigation into matters of financial accountability (p. 691).
Williams sued Dallas ISD, claiming a violation of his right to free speech. He argued that his situation was identical to the Pickering case. Like Pickering, Williams lost his job after questioning the manner in which school officials expended athletic funds. Surely, Williamss memoranda, like Pickerings letter to the newspaper, were constitutionally protected.
Unfortunately for Williams, the Fifth Circuit disagreed. Under Garcetti, the court ruled, it was required to consider whether Williams was acting pursuant to his official duties when he made his complaints about the athletic fund. The court pointed out that Williams needed information about the fund so that he could operate the athletic department. Williams was responsible for buying sports equipment from athletic accounts and for paying tournament fees to various sporting events. To do his job, Williams needed to consult with the schools principal and its office manager about his budget. Thus, Williamss memoranda were written in the course of performing his job responsibilities and were not constitutionally protected.
Have Public School Teachers Been Garcettized?
Williams v. Dallas Independent School District clearly has important implications for teachers who call attention to perceived wrongdoing in the workplace. Under the rationale of Williams, teachers who report misconduct in the course of performing their official duties enjoy no constitutional protection and can even lose their jobs.
Williams is not the only federal court decision to cite Garcetti as the basis for dismissing a public school employees First Amendment claim. Indeed, one plaintiffs attorney complained that several courts have Garcettized public employees, ruling that the employees enjoyed no constitutional right to criticize their governmental employers.
It is ironic that Williams took place in the Dallas school system, a district that has been wracked with incidents of financial misconduct in recent years. In 2006, the board endured a massive scandal involving the misuse of school-district credit cards, a controversy that was triggered by investigative reporters for the Dallas Morning News (Fischer, Hobbs, & Motley, 2006). In an unrelated series of events, a federal grand jury recently indicted two former Dallas ISD executives for money laundering and obstruction of justice (Carlton, 2007).
In the face of these controversies, it seems evident that school systems benefit when employees report their suspicions of wrongdoing to their superiors. Thus, those who call attention to questionable practices should be protected from losing their jobs. Nevertheless, under the rationale of Garcetti as applied in Williams, it is now clear that school employees who raise questions about possible misfeasance in the workplace risk losing their positions.
Of course, many states, including Texas, have whistle blowing statutes in place that offer some protection to public employees who call attention to wrongdoing that they discover while doing their jobs. Even so, one can only wonder why speech of the type that Williams engaged in should be deprived of constitutional protection. Any other outcome flies in the face of the First Amendment right to free speech.
In years to come, we will probably see more federal courts apply the Supreme Courts 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 wrongdoingnot discouraged, Garcetti is indeed unfortunate.
Carlton, J. (2007, May 29). Former Dallas school officials, Houston man face bribery charges. Associated Press.
Fischer, K., Hobbs, T. D., & Motley, M. (2006, July 2). DISD credit card oversight lax: Exclusive: A Dallas Morning News investigation found thousands of suspect purchases on district credit cards - and serious questions about whether anyone is watching how the tax dollars are spent. Dallas Morning News.
Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006).
Hudson, D. L. (May 29, 2007). First Amendment Center. Garcettis palpable effect on public employees speech. Retrieved January 7, 2007 from http://www.firstamendmentcenter.org/analysis.aspx?id=18606
Pickering v. Board of Education of Township High School District 205, 391 U.S. 563 (1968).
Williams v. Dallas Independent School District, 480 F.3d 689 (5th Cir. 2007).