Friday, March 14, 2014

Should an Educational Leader's Testimonial Speech be Protected? by Scott Bauries

The following is a cross-post, curtesy of Scott Bauries at edjurist.com.  Thanks Scott.

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 

http://lawprofessors.typepad.com/education_law/2014/03/should-an-educational-leaders-testimonial-speech-be-protected-by-scott-bauries.html

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