When most hear about public employment law, they believe the topic involves unions and collective bargaining between government employers and public employee unions. This is not correct. Although public-sector labor law is an increasingly important area of inquiry given the robust union movement in the public sector, an equally important area concerns the constitutional rights of public employees. This is public employment law. It is important area of the law both because only public employees, with a government employer, have the protections of the federal constitution under the state action doctrine and because of the sheer size of the public workforce in this country: currently around 23 million workers or about 17% of all workers in the United States.
So within this specialized area, I believe the most important case is the public employee free speech case of Pickering v. Board of Education, decided by the United States Supreme Court in 1968. On October 8, 1964, the Board of Education of Township High School District 205 in Will County, Illinois, fired teacher Marvin Pickering for writing a blistering editorial about the Board and Superintendent in the local Lockport Herald on the previous September 24th. The letter concerned a series of four tax referenda initiated and supported by the Board of Education which sought to allocate tax money for a variety of school-related purposes. Pickering believed that the Board and Superintendent had bungled the matter and that tax money was better spent on teachers’ salary, funding for school lunches for non-athletes, and educational needs generally.
Not surprisingly, the Lockport School Board viewed Pickering’s public statements as insubordination. The same seven-member, elected Lockport School Board that had already decided to dismiss Pickering held a hearing over two days in the Lockport East High School library in November 1964. Of course, Pickering was not surprised when the Board unanimously decided, on December 7, 1964, to terminate him, as the Board acted as judge, jury, and prosecutor during the hearing. The Board concluded that numerous statements in the letter were false and it was in the “best interest of the school” to dismiss him from employment.
Eventually the case made its way up to the United State Supreme Court. In a 8-1 decision, written by Justice Thurgood Marshall, the U.S. Supreme Court held that Pickering had a First Amendment right to free speech that could not be forfeited because of the “best interests” of the school district. Although Justice Marshall recognized that the government’s relationship to individuals was necessarily different in the employment context, he nevertheless firmly stated that public employees have constitutional rights, including rights to free speech.
In any such dispute between a public school teacher and the school board, a court must balance the conflicting interests of the parties. Justice Marshall described the balance this way: “The problem in any case is to arrive at a balance between the interests of the [public employee], as citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” This principle applies regardless of the public employee’s contractual or other claims to a job.
To be clear, the governmental interests recognized in Pickering are not in any sense constitutional rights, but rather interests that a government employer has in maintaining “a significant degree of control over their employees’ words and actions” because “without it, there would be little chance for the efficient provision of public services.” The balance undertaken in Pickering is therefore required because even though the government employer performs “important public functions,” and consequently possesses far broader powers in its employer capacity than in its sovereign capacity, “a citizen who works for the government is nonetheless a citizen.” The First Amendment therefore limits the ability of the public employer to condition employment of that employee on the forfeiture of his or her constitutional rights under the doctrine of unconstitutional conditions.
Perhaps equally important, the Court majority in Pickering also noted how critical it was to allow public employees, like Pickering, to speak out on matters of public concern since such employees are many times in the best position to have “informed and definite opinions.” In other words, public employees help to ensure the transparency and accountability of representative, democratic governments. Public employees, however, will only speak out on matters of government abuse, waste, or fraud, if they are reassured that they do not risk those very jobs every time they speak. Unfortunately, more recent case developments since Pickering suggest that the Supreme Court has not focused enough on this important aspect of the Pickering decision.
The reason that Pickering is so important to public employment law is because it represented the end of the rights-privilege distinction in this area. No longer could public employers treat public employment merely as a privilege, but had to respect the constitutional rights of their employees. This is important when one considers the legal landscape before Pickering. Justice Oliver Wendell Holmes once stated that a person “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor & City of New Bedford, 29 N.E. 517 (1892). So although the government has greater latitude when conditioning public employee rights in the workplace, it cannot completely ignore them.
Unfortunately, the Pickering holding is now under attack by a more conservative and anti-civil rights Supreme Court. The coup de grace against Pickering was delivered by the Roberts Court in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, a deputy district attorney for Los Angeles County, Richard Ceballos, was subjected to adverse employment actions for speaking out about an allegedly defective search warrant in a criminal case. Although the Garcetti Court paid lip service to its commitment to public employee free speech rights, Justice Kennedy for the 5-4 majority nonetheless held that if employees are engaged in speech “pursuant to their official duties” at work, they are not speaking as “citizens” and thus, enjoy no First Amendment protection for their speech. Because Ceballos was engaged in speech pursuant to his job duties, he was not speaking as a citizen on a matter of public concern, but only as a government employee. As such, the Court concluded that Ceballos did not have any First Amendment protection and there was no need to conduct a Pickering balancing of interests.
Garcetti thus drastically cuts down on public employees’ First Amendment expression rights. In the name of managerial prerogative, federalism, and separation of powers, Garcetti has the effect of making government less transparent, accountable, and responsive. Again, this is because public employees are now less secure in their ability to speak out against governmental fraud, abuse, and waste, without facing retribution from their public employers. Garcetti thus does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services. Indeed, the perverse incentive set up by Garcetti is that public employees may feel forced to air their dirty laundry outside of the job so that they can be seen as speaking as citizens outside their normal job duties.
In conclusion, although government employees do not have the same free speech protections under the First Amendment as citizens do, Pickering v. Bd. of Education at one point in time established a substantial degree of free speech protection for such employees. Indeed, without Marvin Pickering’s unyielding belief that, “a man doesn’t give up his right to freedom of speech when he becomes a school teacher,” public employee free speech rights might have remained unrecognized for a substantial period of time.
Yet, in the period since Pickering, the doctrine of unconstitutional conditions has been turned on its head. The notion advanced by the majority in Garcetti that public employee free speech is nothing more than government speech when these employees speak pursuant to their duties has wreaked havoc on the Pickering doctrine and has even revitalized the rights-privilege distinction in public employment law. It has also undermined the ability of public employees to make fellow citizens aware of critical issues inside government.
The time has therefore come again for another Marvin Pickering to arrive on the scene and preach the importance of a robust and engaged public workforce in the United States. Only through a recommitment to the Pickering balancing test, and its general principles, may it once again become possible for government employees to escape sanction for exercising their constitutional rights to free speech.
This Post Has 2 Comments
21 February 2011
To Professor Secunda:
With all due respect- how can you justify “law makers” – in this case- Wisconsin State Senators, eschewing their sworn duties- and running away from a vote that they fear may go against their own personal political beliefs? You seem to be looking at this issue in WISCONSIN only from the Union(s) persepctive. I -as a fellow Attorney-view this from a bigger / wider viewpoint. If… every time- a “close vote” comes up in a state or federal legislative branch – the members flee into hiding to avoid the vote-isn’t that undermining our form of government here in the USA?
I am certainly not anti -union, but the bigger issue here- beyond “collective bargaining” for government workers- is whether law makers- who are “sworn” to uphold our Constitution… should ever walk out on an upcoming vote- thus (possibly- under that State’s Constitution) denying a “quorum” and destroying that model of democracy in that state?
What’s next? The minority physically (with chains and padlocks) “locking out” law makers from the STATE HOUSE? Doesn’t this seem like what happens in Third World Countries?
I invite a dispassionate, civil response.
Thank you for an excellent and informative article! As an attorney, I found it very helpful.