Exploring the Limitations of First Amendment Protection for Public and Private Expressions by School Personnel

In 1968, the United States Supreme Court determined it was illegal for public employers to retaliate based on employee speech if the employee was speaking as a private citizen on a matter of public concern and the speech did not disrupt organizational efficiency. Over the years, subsequent court opinions frequently focused on whether the speech at issue was a matter of public concern or whether there was an adverse affect on the employer-employee relationship. Little attention was given to the role of the speaker at the time the speech was made. Almost forty years after Pickering, the Supreme Court once again addressed the parameters of public employee speech in Garcetti v. Ceballos. In Garcetti, the Court clarified that statements made pursuant to an employees official duties do not qualify as private citizen speech. As a result, Garcetti fundamentally altered the analysis courts engage in when deliberating employee speech cases in public school settings. Garcetti has had a profound impact on free speech retaliation claims brought by public school employees. Many times cases that would have been previously analyzed under the two-part test in Pickering are now disposed of rather efficiently after an initial analysis applying the Garcetti test of whether the speech at issue was made pursuant to ones official job duties. In this regard, school administrators appear to be a particularly vulnerable group because their job responsibilities are often quite broad and elastic. While Garcetti has garnered a great deal of attention in the last few years (and rightfully so), less attention has been paid to Pickerings second prong where ones speech may be otherwise protected by the First Amendment, but because the speech so impedes the employee\u27s proper performance of his daily duties or interferes with the regular operation of the school generally the public employee loses the protection of the First Amendment. Illustrative of this type of case is a recent decision by the Seventh Circuit Court of Appeals that upheld the dismissal of a school guidance counselor because of a sexually explicit novel he wrote. The court concluded that the school counselors book deals with adult relationship dynamics, an issue with which a large segment of the public is concerned. However, we affirm the district courts dismissal because & the school districts interest in ensuring effective delivery of counseling services outweighed Craigs speech interest.There is yet another basis upon which some circuits have denied speech-based retaliation claims that public school employees should be aware of, especially those who serve in administrative roles. Most of these cases still implicate the Pickering balance test, but with a twist. In some circuits the very nature of ones position as a policymaking or confidential employee may render speech unprotected by the First Amendment. For example, in Leslie v. Hancock County Board of Education the Eleventh Circuit considered whether a policymaking or confidential employee has a right not to be retaliated against for speech about policy. After first acknowledging that there is no uniform approach to this question among the federal circuits, the Eleventh Circuit held that no clearly established law bars the termination of a policymaking or confidential employee for speaking about policy. In another recent case, the Sixth Circuit denied a university administrators retaliation claim that was based on private speech on a matter of public concern. While the plaintiff in the case expressed her position as a citizen (as opposed to in her official capacity), her position was nevertheless at odds with the universitys public position on the matter, and formed the basis of her dismissal. In ruling against the plaintiffs retaliation claim, the Sixth Circuit invoked what it called the Rose Presumption.The Rose presumption dictates that where a confidential or policymaking public employee is discharged on the basis of speech related to his political or policy views, the Pickering balance favors the government as a matter of law. These two cases demonstrate that whether ones speech is focused on a policy matter related to their employment or whether the speech is private speech on a policy matter at odds with the official position of ones employer, the confidential or policymaking public employee may have little First Amendment protection. This presentation will not only serve to inform current school administrators about the challenges they face in light of Garcetti, Pickerings second prong, and the nature of ones position as a policymaking or confidential employee, but it will also task those who prepare future administrators to think about the implications for practice. Finally, those who serve and counsel administrators already in the field will find the cases reviewed to be the most recent and ripe for application