Academic

Bauries on Garcetti v. Ceballos in the Federal Appellate Courts

By Lawrence Solum

Scott R. Bauries (University of Kentucky College of Law) & Patrick Schach have posted Coloring Outside the Lines: Garcetti v. Ceballos in the Federal Appellate Courts (Education Law Reporter, Vol. 262, p. 357, 2011) on SSRN. Here is the abstract:

This article examines the Supreme Court?s 2006 decision in Garcetti v. Ceballos in a novel light. Paying careful attention to the specific facts that were before the Court in Garcetti, and to the Court?s perception of these facts against the background of employee speech case law, the authors demonstrate that the Garcetti rule that public employee speech made ?pursuant to official duties? is outside the First Amendment?s protection exempts a very narrow category of speech - only that speech which an employee is contractually bound to make. However, based on a review of the education-related cases applying Garcetti in the federal appellate courts, the authors show that the courts have applied a much broader version of the Garcetti rule than the Supreme Court initially developed, and have accordingly further limited public employee speech rights in the guise of applying the Garcetti precedent.

Part of the blame for this set of rights-limiting appellate rulings undoubtedly lays with the Supreme Court?s failure to clearly articulate a workable test for determining whether an employee?s speech was rendered ?pursuant to official duties.? Accordingly, the authors advance just such a workable test, which both mutes Justice Souter?s expressed concerns over indeterminacy and allows for a more principled approach to applying the threshold First Amendment exemption without limiting public educational employee speech rights further than the Garcetti decision itself limited such rights. The authors show that the application of this proposed test would have led to the opposite result on the Garcetti threshold question in most, if not all, of the cases reviewed.

The authors acknowledge that, even using their proposed test, the Garcetti rule by its own terms appears to exempt public employee speech pursuant to duties of (1) auditing and fraud prevention, and (2) teaching and scholarship from the First Amendment?s protections. These categories of speech are uniquely valuable to the public, and subjecting such speech to unilateral employer control effectively eliminates the primary justification for the speech?s existence. The authors survey recent decisions in cases presenting claims based on internal auditing, teaching, and scholarship, identify some emerging trends, and conclude by offering some preliminary thoughts as to the direction that future rulings should pursue.

Full post as published by Legal Theory Blog on February 15, 2011 (boomark / email).