Garcetti, Academic Freedom, and Public School Teacher’s Right to Free Speech

Scales-red 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.” 

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Princeton Review: Get Ready for the College for Working Families

NationalLaborCollege Thanks to Daniel Mitchell, Professor-Emeritus at the UCLA Anderson Graduate School of Management, who brought to my attention this article by Steve Kolowich entitled: A Historic Union?  (January 15, 2010, Inside Higher Ed).

Here’s a taste:

A month after completing its first foray into online higher education by acquiring the distance education provider Penn Foster, the Princeton Review has set its next goal: to help create the largest online college ever. And it thinks it can do it in five years.

The company announced yesterday that it is entering into a joint venture with the National Labor College — an accredited institution that offers blended-learning programs to 200 students, most of whom are adults — to establish what would be called the College for Working Families. The college would offer courses tailored to the needs of union members and their families, beginning this fall.

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Garcetti in Higher Education? Not So Fast

Scales-red Thanks to Dennis Nolan (South Carolina) for bringing to my attention this decision from California discussing whether the Garcetti First Amendment free speech case applies in the higher education context.  Garcetti held that public employees speaking pursuant to their job duties have no First Amendment free speech protection.

F.I.R.E. (Foundation for Individual Rights in Education) has this article on Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009):

[I]t is heartening to report that a federal court in California has rejected a community college district’s attempt to apply Garcetti to strip a professor of First Amendment protection for her classroom speech. In Sheldon v. Dhillon, No. C-08-03438 RMW (N.D. Cal. Nov. 25, 2009), the federal district court ruled, contrary to the college district’s argument, that the professor, June Sheldon, did not lose her First Amendment rights merely because her speech took place during classroom instruction. Sheldon lost her adjunct science teaching position at San Jose City College as well as the opportunity to teach courses the next semester following remarks she made to her class about the “nature versus nurture” debate with regard to why some people are homosexuals. Though her comments were part of a class discussion about the topic, some students complained that the way she embraced the “nurture” side of the argument was offensive, leading the college to take the adverse employment actions against her. (FIRE took up Sheldon’s case in 2008.)

In Sheldon’s subsequent suit under 42 U.S.C. 1983 (a federal statute providing a cause of action for the vindication of federal constitutional and statutory rights), the federal court rejected the college’s argument, based on Garcetti, in favor of dismissing Sheldon’s First Amendment claims altogether. Crucially, the court observed that “Garcetti by its express terms does not address the context squarely presented here: the First Amendment’s application to teaching-related speech. For that reason, defendants’ heavy reliance on Garcetti is misplaced.” The court opined that the “precise contours” of the First Amendment’s reach in this context are “ill-defined and are not easily determined at the motion to dismiss stage.”

I think both from a precedential standpoint and a policy standpoint this decision is on the way to the right result.  First, Garcetti expressly chose not to rule on whether its ruling applied in the academic context.  Second, Supreme Court cases as far back as the 1950s have emphasized the need for academic freedom, including the right to freely say what one thinks in the classroom environment.

To be sure, this decision just gets the case by a motion to dismiss, but I agree that it is heartening that the court might treat academic public employment different from other forms of public employment suffering under the holding of Garcetti.

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