Education Law

Second Circuit Strikes a Blow Against Teachers' Speech Rights

I noticed that Education Week's School Law Blog had posted about a case from the  U.S. Court of Appeals for the Second Circuit that marks yet another disturbing use of Garcetti v. Ceballos in relation to speech claims by educators (a copy of the case is also available at the site).  Previously, I wrote about a state court decision involving faculty speech and the Garcetti decision.  In Garcetti, the U.S. Supreme Court held that a public employee does not speak for purposes of the First Amendment when engaging in communications made pursuant to carrying out his or her official employment duties.

In this case, Weintraub v. Board of Education of the City of New York, a teacher alleged that administrators retaliated against him on the basis of making a union grievance.  The teacher claimed that he lodged the grievance after school officials failed to discipline a student who threw a book at him on two occasions.  The teacher, among his claims, stated that superiors retaliated against him for filing the grievance, such as giving him negative classroom evaluations.  There were other serious issues involving the teacher, including allegations of sexual misconduct and assaulting another teacher, so I'm certainly not weighing in on the particulars of this individual's fitness to teach.

But from a First Amendment perspective, this decision represents another extension of Garcetti that makes little sense.  In his lawsuit, the teacher claimed that the school district violated his First Amendment rights by retaliating against him for the filing of the grievance.  Two judges on the panel determined, however, that the filing of the grievance was made pursuant to the teacher fulfilling his employment duties.

Pointing out that the Supreme Court and lower federal court decisions had not restricted the types of communications covered under Garcetti to 'required' employment duties, the court determined that the filing of the grievance was made pursuant to the teacher's official job duties.  According to the opinion, the teacher filed the grievance because of concern over maintaining classroom discipline, which meant it was an issue that was 'part-and-parcel' of his employment duties.

Judge Guido Calabresi's dissent in the case highlights how the majority opinion interpreted 'pursuant to' much too loosely.  More generally, the way that a number of lower courts have applied Garcetti seems to validate concerns that it marked a decision that would unduly chill the speech rights of public employees, including educators. I am among those that has not voiced a favorable opinion of Garcetti, and this case indeed highlights the kinds of problems that were predicted to arise as a result of the decision.  One only hopes that the Supreme Court will sooner rather than later provide guidance that, at a minimum, reins in the meaning that lower courts may give to what kinds of communications satisfy the "pursuant to" language of Garcetti.

Full post as published by Edjurist on January 29, 2010 (boomark / email).