This Supreme Court case involved a deputy district attorney in California who complained to his supervisors about suspected misconduct in a case; after he was demoted and transferred, he sued, arguing that he had been punished for speaking out on an issue of public concern. The Supreme Court ruled that when public employees speak “pursuant to their official duties,” they are not protected by the First Amendment. The Court also noted, though, that “expression related to academic scholarship or classroom instruction” may have additional constitutional protection, and set aside for another day whether its “official duties” analysis would apply to “speech related to scholarship or teaching.”
Juan Hong, a tenured professor at University of California-Irvine, criticized a number of decisions about hiring, promotions, and staffing at the school of engineering. When he was denied a merit raise, he sued, asserting that his First Amendment rights had been violated. The federal trial court, relying on the “official duties” analysis from Garcetti, ruled against him, concluding that a public university “is entitled to unfettered discretion when it restricts statements an employee makes on the job and according to his professional responsibilities.”
Kevin Renken, a tenured engineering professor at the University of Wisconsin-Milwaukee, became embroiled in a dispute with his dean over the administration of a National Science Foundation grant. The university finally returned the funding and Renken sued the university, arguing that he had been retaliated against for criticizing the university’s use of grant funds. The United States Court of Appeals for the Seventh Circuit ruled that because Renken was a principal investigator on the project, administering the grant was “within the teaching and service duties that he was employed to perform,” and that his complaints therefore were not protected by the First Amendment.
In 2007, Wendell Gorum, a tenured professor at Delaware State University, sued DSU, contending that the university had terminated him because of his support for a football player advisee and several public clashes with DSU’s president, Allen Sessoms. The United States Court of Appeals for the Third Circuit rejected his arguments, ruling that a public employee’s speech could be “part of his official duties if it relates to ‘special knowledge’ or ‘experience’ acquired through his job.” The court did acknowledge that the Garcetti decision suggested that academic speech might be treated differently, but reasoned that “Gorum’s actions so clearly were not ‘speech related to scholarship or teaching.’”
In 2001, Civil Engineering Professor Habib Sadid published a letter to faculty and administrators criticizing Idaho State University’s plan to merge two colleges, including the College of Engineering. Several years later, he spoke to a state newspaper about the plan. Sadid claimed that in retaliation for his comments, he did not receive faculty evaluations, was not appointed to a chair position, was defamed in an email, and received the lowest possible salary increase, and that his First Amendment rights were therefore violated. Invoking the decision in Hong v. Grant, the Idaho state trial court concluded that Sadid’s letters related to his personal grievances rather than to a matter of public concern. In addition, relying primarily on cases that arose outside of the academic context, the court reasoned that “government employers need a significant degree of control over their employees’ words and actions.” The court therefore disagreed with Sadid’s assertion that because his job description did not include writing letters to the newspaper critiquing the ISU administration, he was writing as a private citizen rather than as a public employee. The court decided that the “tone” of Sadid’s letters “is that of an employee of ISU,” and added that Sadid “should understand that he has limitations of his speech that he accepted when becoming a state employee.” Finally, the court noted that Sadid had identified himself as an ISU employee in the published letters. The court concluded that “due to the tone and language of the letter,” Sadid was speaking as an employee and not as a private citizen, and his comments were therefore not protected by the First Amendment.
June Sheldon began teaching biology at California’s San Jose Community College in 2004. During her summer 2007 Human Heredity course, a student complained about a class discussion regarding homosexuality. In December 2007, after investigating the complaint, the community college’s administration withdrew Sheldon’s offer to teach in spring 2008 on the grounds that she was teaching misinformation as science. Sheldon sued in federal court, alleging that she was fired in retaliation for her in-class answer to a student’s question, and that her classroom instruction was protected by the First Amendment. In this decision, the court rejected the college’s reliance on the Garcetti decision, noting that “by its express terms,” the decision did “not address the context squarely presented here: the First Amendment’s application to teaching-related speech.” The court observed that prior appeals court opinions had, in the court’s words, “recognized that teachers have First Amendment rights regarding their classroom speech, albeit without defining the precise contours of those rights.” The court also noted that the Supreme Court has held that “a teacher’s instructional speech is protected by the First Amendment, and if the defendants acted in retaliation for her instructional speech, those rights will have been violated unless the defendants’ conduct was reasonably related to a legitimate pedagogical concern.” Because the court could not determine at this stage whether the community college terminated her employment on the grounds of reasonable pedagogical concerns, it denied the motion to dismiss.
Although this case arose in the context of K-12 rather than higher education, it vividly demonstrates the disturbing consequences of Garcetti’s application to teaching professionals. David Weintraub was a fifth grade teacher in the Brooklyn public school system. After a student threw a book at him in class and was returned to his classroom instead of being suspended, Weintraub complained to the assistant principal, told his fellow teachers about the incident, and filed a grievance with his union representative. Weintraub alleged that he was then retaliated against in a variety of ways in violation of his First Amendment rights, including receiving bad performance reviews, being wrongfully accused of sexual abuse, and ultimately getting fired. The federal trial court agreed that under Garcetti, his conversations with other teachers were not pursuant to his official job duties and were therefore protected, but ruled that his complaints to the assistant principal and his filing of a union grievance were pursuant to his job duties, because he was “proceeding through official channels to complain about unsatisfactory working conditions,” and that those activities therefore were not protected by the First Amendment. The U.S. Court of Appeals for the Second Circuit agreed to hear his appeal to decide the issue of whether filing a union grievance is protected by the First Amendment. Over a strong dissent, a two-judge majority of the court concluded that it is not.
The court relied on the fact that the majority in Garcetti defined speech made “pursuant to” a public employee’s job duties as “speech that owes its existence to a public employee’s professional responsibilities,” which is a “practical” inquiry. In this case, even though Weintraub wasn’t required to file a union grievance as part of his job, it was “part and parcel” of his attempts to carry out his job duties as a public school teacher, including maintaining discipline in his classroom. The court relied heavily on the fact that no speech is a “citizen analogue” – i.e., writing a letter to a newspaper or filing a complaint with an elected representative – to lodging a union grievance. Because Weintraub never made his complaints public and because they were related to his job, therefore, the First Amendment did not protect him from employer retaliation for filing the grievance. (The opinion does not address whether he might be protected by New York state labor law or other statutes.)
In this case, a federal trial court in Mississippi concluded that an elementary school special education teacher who complained to the school’s principal about another teacher’s use of corporal punishment on an autistic student was not protected by the First Amendment. The court observed that in the Fifth Circuit, the federal appeals court that covers Mississippi (as well as Texas and Louisiana), “activities undertaken in the course of performing one’s job are activities pursuant to official duties and not entitled to First Amendment protection.” Because the teacher was the student’s primary teacher and she considered it to be within her role to deal with his behavioral issues, she “spoke as an employee in expressing her view that corporal punishment was not an effective means of discipline for an autistic child.” The First Amendment therefore did not prohibit the school from non-renewing her contract in retaliation for her speech.
In this case, a federal appeals court declined to dismiss a public employee’s First Amendment claim for her job-related speech. Janet Reinhardt was a speech-language pathologist for the Albuquerque Public Schools (APS). She complained for a number of years to APS that she was not receiving accurate caseload lists of students, and that that failure had the effect of denying students speech and language services. After repeated complaints went unaddressed, she hired an attorney and filed a complaint with the New Mexico Public Education Department against APS, alleging that the Individuals with Disabilities in Education Act was being violated. Her caseload was then reduced, lowering her salary, and she believed she might lose her position entirely. Reinhardt sued APS, arguing that the reductions in her caseload and salary were in retaliation for her complaints and violated her First Amendment rights. The federal trial court dismissed her claim, ruling that she filed her complaints pursuant to her official duties, but the U.S. Court of Appeals for the Tenth Circuit unanimously reversed in this opinion. The court observed that in the Tenth Circuit, which covers the states of Utah, Colorado, New Mexico, Wyoming, Oklahoma, and Kansas, an employee who reports wrongdoing is generally not speaking “pursuant to her official duties” (and is therefore protected under Garcetti, as long as the speech is on a matter of public concern) if (1) the employee’s job responsibilities do not relate to reporting wrongdoing, and (2) the employee went outside his or her chain of command to report the wrongdoing. The court rejected APS’s claim that it was within Reinhardt’s job responsibilities to report APS’s failures simply because she had professional obligations and was bound to “enforce all laws and rules applicable to” the school district. The court noted both that Reinhardt was hired to provide speech and language services, not to ensure IDEA compliance (though that alone would not have been dispositive), and that retaining counsel appeared to be beyond her official job duties (though her initial complaints to administrators and within the internal grievance procedures likely were part of her official duties). The court therefore reversed the district court’s opinion for further consideration of the other elements of her First Amendment claim.