Friday, October 22, 2010

Garcetti vs. Public School Teachers: Garcetti Wins and We All Lose

Freedom of Speech 2 Although the United States Supreme Court expressly decided not to weigh in on the issue in Garcetti v. Ceballos in 2006, the first major decision by an appellate court has been decided on whether or not Garcetti's holding (that there is no First Amendment protection when public employees speak pursuant to their official job duties), applies to public school teachers in the classroom.

The decision is what I would expect from a court closely following the teachings of the Garcetti precedent: yes, Garcetti applies.  In Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist. (6th Cir., 10/21/10), a case involving a high school English teacher who claimed her employment was unconstitutionally terminated by an Ohio school district in retaliation for her choice of student reading selections (including Herman Hesse's Siddhartha) and teaching methods, the court (per Judge Sutton and two other Reoublican appointees - two appointed by Bush I, the other by Bush II) decided yesterday that:

[T]he right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made “pursuant to” their official duties.

Without doing any legal analysis, just wrap your mind around that statement for a second.

The people we entrust with teaching our children how to think, read, write, behave, become citizens, etc., have no ability, zero, to say what they wish in carrying out this crucial exercise of representative government. Now don't get me wrong, I understand that such environments require some discretion and decorum so that young impressionable minds are handled carefully, but to say that there is NO First Amendment right is absurd. At the very least, whatever interests the school district has should be balanced against the speech rights of the teacher - the holding in Pickering v. Bd. of Education - that makes much more sense, no?

And I don't want to hear about the floodgate of litigation that will ensue if we permit such balancing. Balancing in this regard has been the norm since the Pickering case in 1968, and I have not seen a tidal wave of such cases overwhelm the federal courts yet (partly because it is so difficult to win these cases).

But think about it for a second now from a policy perspective - what incentives are being established ex ante through this legal rule. At least two that trouble me.  First, if you know that you speak outside of the school (say to the newspaper like Mr. Pickering himself did way back when), you are clearly protected in your speech to speak on matters of public concern.  That means that public school teachers now have an incentive to air their dirty laundry in public rather than seek resolution within their schools or with the school board. That makes no sense.

Second, and no less troubling, is the fact that public employees will no doubt feel muzzled by this legal rule (and rightfully so). They speak out, they could lose their jobs.  That means that the people who are best positioned, and best experienced, to tell us what is going on in our school districts, have now been gagged. We all lose.

Look, this decision was inevitable since Garcetti was decided in razor-thin 5-4 decision by a conservative majority in 2006.  As I and many other have predicted, the inevitable result has been a ceaseless cutting back on the constitutional rights of public employees. Helen Norton and others have explained how this has occued through the Roberts' Courts grossly inflated use of the government speech doctrine and it is no surprise that Judge Sutton relied on it here.

So you might say, "Don't  worry, Paul, this will surely be legally challenged." Let me point out that the teacher was acting pro se in this case and really never had a chance. I guess we will see if someone steps up and takes her case to the Supreme Court. I almost hope they don't. Given the current make-up of the Supreme Court, such a challenge would just further ensconce this horrible, and not very well supported, piece of constitututional law.

We need to remember that public employment is not a privilege whereby the goverment can force individuals to forego the exercise of their constitutional rights in order to secure government employment. This is true with any government employment, but especially true with a public school teacher who we want to be able to show through example how to engage in criticial thinking and constantly push the contours of knowledge.  We want our school teachers to engage in robust debate with their students and expand the spectrum of knowledge.

Never before have I been so concerned that Justice Jackson's admonision in Barnette is no longer being heeded:

"[Schools may not] prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion." West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).

And as Justice Blackmun wrote eloquently in his concurring decision in Board of Educ. v. Pico, 457 U.S. 853 (1982) (and to which I firmly subscribe):

Keyishian v. Board of Regents, 385 U.S. 589 (1967) -- a case that involved the State's attempt to remove "subversives" from academic positions at its universities, but that addressed itself more broadly to public education in general -- held that "[t]he classroom is peculiarly the ‘marketplace of ideas"'; the First Amendment therefore "does not tolerate laws that cast a pall of orthodoxy over the classroom." Id. at 603. And Barnette is most clearly applicable here: its holding was based squarely on the view that

[f]ree public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.

319 U.S. at 637. The Court therefore made it clear that imposition of "ideological discipline" was not a proper undertaking for school authorities. Ibid.

In combination with more generally applicable First Amendment rules, most particularly the central proscription of content-based regulations of speech, see Police Department of Chicago v. Mosley, 408 U.S. 92 (1972), the cases outlined above yield a general principle: the State may not suppress exposure to ideas -- for the sole purpose of suppressing exposure to those ideas -- absent sufficiently compelling reasons.

That principle has not been followed today and, as a result, we are all made poorer by the Sixth Circuit's knee-jerk extension of the Garcetti holding to the public school context; it does nothing less than cast a pall of orthodoxy over the classroom and makes an obscene joke of academic freedom in the primary and secondary classroom environment.


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Interesting how you slid effortlessly between the fact in Garcetti (what goes on in the classroom), and what does not ("seek[ing] resolution within their schools or with the school board").

So you make no distinction between the two? Wow. I consider that a fairly important --- indeed, dispositive --- distinction. In the former case, government-school teachers are performing their core function, what they're paid --- BY THE GOVERNMENT --- to do. In the latter, they may be dealing with employment-related issues. You SHOULD be hoping that no one takes up this teacher's case to the Supreme Court.

That is, of course, the danger of government schools, as he who pays the piper calls the tune.

And, of course, I seriously doubt that those who are disturbed by this outcome will raise a great hue and cry when some government-school science teacher dares to challenge the orthodoxy of the myth of man-caused "climate change."

Posted by: James Young | Oct 22, 2010 11:51:51 AM

Paul, I'm no expert in this area, but is this result really that extreme? Shouldn't a school have control over what its teachers teach? The court frames the issue as: "Does a public high school teacher have a First (and Fourteenth) Amendment right 'to select books and methods of instruction for use in the classroom without interference from public officials'?" My inclination would be that (1) schools should have control over what the teachers teach in the classroom, and (2) you can protect teacher self-expression through contractual and/or civil service protections that require just-cause terminations.

Posted by: Matt Bodie | Oct 22, 2010 12:48:27 PM

Cross-posted in the comments to my post at Edjurist: .

Paul, I agree with the normative points that you raise, especially since, like this teacher, I myself used to teach a "banned books" unit when I was an English teacher, and I have been subjected to the bullying of intolerant parents when I taught books like Catch-22 to my high schoolers. I think that we handicap our teachers intellectually if we require them to be automatons in the classroom. Simply put, if we want our educators to be good classroom teachers, we must afford them some freedom over pedagogy and the micro-curriculum in the classroom (as opposed to the macro-curriculum of the school, district, or state). To do otherwise creates a culture of compliance, rather than innovation, and it creates incentives for creative and smart people to stay out of the profession.

However, as a descriptive matter, I don't think that anything we would recognize as "academic freedom" has ever truly existed as a constitutional matter for K-12 teachers. At times, lower courts have found that teachers' interests in teaching freely have outweighed administrative interests in control over curriculum and pedagogy, but the dominant approach has pretty much always been to either weigh the Pickering balance in favor of administrative interests, or to apply a form of the Hazelwood test and simply ask whether an administrative pedagogical interest exists at all. Against that historical landscape, the Supreme Court did not alter much by making a nearly certain district victory in nearly all cases involving K-12 classroom speech into a completely certain one in all such cases, and as you point out, the Sixth Circuit merely applied that rule. I tend to think, as you do, that a categorical rule is not preferable to the Pickering balance in these matters, but I don't see that the new rule itself has changed much for K-12 teachers as public employees, other than in the circuits where it has been misapplied as much broader than it really is (for example, the many decisions that read "pursuant to" to mean "in the course of"). I also share your skepticism about the "floodgates" argument that the majority offered with no evidence to support it, despite fifty years of Pickering litigation history. In fact, as I allude to above, the litigation history tends to prove the opposite. Under Pickering (and/or Hazelwood, depending on the circuit), schools won the overwhelming majority of these cases, and that success record surely kept a litigation explosion from happening.

As to the specific critiques of the conservative majority's decision, as I point out in my Garcetti-based work in progress, the majority's rule can reasonably be read as the most speech-protective rule of the three proposed in the case (both Souter and Breyer each proposed alternative categorical rules and largely agreed with the majority's categorical balancing). Justice Souter's rule would leave speech unprotected unless it addresses a matter of "unusual public importance." I doubt classroom lessons would meet this standard. Justice Breyer's rule would seem to leave speech unprotected except where the Constitution (Brady v. Maryland in the Garcetti case) or professional resonsibilities would require it to be made. Also a category not likely to include classroom speech. Importantly, each of these alternative rules would have applied to speech made "in the course of performing job duties," as opposed to the majority's rule, which applies only to speech "pursuant to official duties."

As you say, this is the first direct application of the Garcetti rule to classroom speech among the circuit courts (the 7th Circuit's decision in Mayer does not count because the Garcetti threshold question was stipulated there). But I don't think that this particular application functionally alters teacher rights much (though ironically, it seems that the Sixth Circuit would have weighed the balance in this teacher's favor in this particular case). What I worry about now is whether the rule will be applied mechanically in the higher education context, where the arguments for a historical idea of individual academic freedom are much stronger.

Posted by: Scott Bauries | Oct 22, 2010 12:55:32 PM

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