In Weintraub v. Board of Education of the City of New York, No. 07-2376 (2d Cir. Jan. 27, 2010), the Second Circuit, in a 2-1 decision, has delivered a body blow to the First Amendment speech rights of public school teachers.

The case concerns a fifth-grade teacher who was dealing with a disruptive student throwing books at him on multiple occasions. When the school administrator refused to take disciplinary action against the student, the teacher filed a grievance with his union.  The school allegedly responded by retaliating against the teacher and eventually, firing him.  (BTW, all of this happened from 1998-2000, and the Second Circuit decision just came out in 2010; something about justice delayed is justice denied keeps popping into my head.)

The majority decision, written by Judge Walker, recites the holding of Garcetti (U.S. 2006) (the bane of my existence) that public employee speech pursuant to an employee’s official duties receives NO First Amendment protection. In Weintraub, the “speech” being examined was the grievance filed by the teacher with his union.

The Court held that the employee’s grievance was “pursuant to” his official duties because “it was ‘part and parcel of his concerns’ about his ability to ‘properly execute his duties,’ as a public school teacher — namely to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.” 

Now, Garcetti is an awful decision that sets all sorts of bad incentives as far as keeping the larger community aware of what is going on inside one our public workplaces.  But this decision is even more troubling because it reaches into area that Garcetti expressly decided not to comment on: the academic freedom rights of public school teachers.  Although this case does not ostensibly deal with the academic freedom of the teacher, it is not much of a stretch to see how the majority’s reasoning in Weintraub could be used to encroach on a public school teacher’s ability to run their classroom and what and how to teach.

I will conclude by quoting a little from Judge Calabresi’s dissenting opinion.  In part, he writes:

As I read the majority opinion, it holds that a public employee’s speech is “pursuant to official duties” and accordingly unprotected when it both (a) is “in furtherance of” the employee’s “core duties,” and (b) “ha[s] no relevant analogue to citizen speech . . . . To be sure, Garcetti contains some language that can be read along these lines. But Garcetti leaves open the definition of “pursuant to official duties,” and I do not think that the majority’s two requirements, either separately or in combination, provide the right doctrinal framework for analyzing that question.

The majority’s first prong, which looks to whether speech is “in furtherance of” an employee’s “core duties,” seems to me too broad. The majority’s discussion could be read to imply that — assuming the second prong of the majority’s test is also satisfied — classroom teachers receive no First Amendment protection anytime they speak on matters that implicate anything that is “an indispensable prerequisite to effective teaching and classroom learning.”  But the prerequisites for effective learning are broad and contentious; everything from a healthy diet to a two-parent family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as “in furtherance of” the core duty of encouraging effective teaching and learning. The line-drawing this entails is necessarily subjective and provides little certainty to the employers and employees who must structure their behavior around our law. Is speech regarding, say, a teacher’s concerns about a student’s misconduct outside the classroom “in furtherance of” the teacher’s core duty of maintaining class discipline? What of a teacher who discovers that a student is the victim of domestic abuse, which is affecting the student’s classroom performance, and brings his concerns to the administration’s attention? The majority’s elaboration of Garcetti provides no administrable standards for analyzing such cases, and as such poorly serves not only the courts and juries that will hear future cases but also the parties who look to us for legal guidance.

Interestingly, neither Judge Calabresi nor the majority raise the academic freedom concerns that trouble me. In Garcetti, the majority held in this regard: “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.”

I strongly believe, and Garcetti does not hold to the contrary, that the customary employee-speech jurisprudence does not, and should not, apply to cases involving issues related to academic scholarship or classroom instruction. This case’s facts, and certainly its holding, implicate those concerns and I would argue that a balancing test under Pickering is more appropriate when there is a conflict between a public employer’s right to maintain an efficient workplace and a public school teacher’s right to speak freely on issues related to their academic freedom.