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Rights Watch: First Amendment Protections for Teachers

A Supreme Court ruling reduces First Amendment protections.

For NEA member Bob Posey, it was always about student safety. As “security specialist” for Sandpoint High School in Sandpoint, Idaho, making sure kids are safe is—or was—his job.

But Bob Posey got fired. For what? For blowing the whistle on dangerous conditions at his school.

His sin—unforgivable in the principal’s eyes—was writing a 13-page letter to his superintendent detailing problems at the school: student discipline, alcohol and tobacco use, weapons, and other issues. He wrote the letter and met with the superintendent during off-duty hours.

His principal, Jim Soper, wasn’t happy about the letter or the meeting. So, when the school district “reorganized” in June 2004, Posey’s position was eliminated. After nine years of dedicated service and excellent evaluations, he was out of work.

As an education support professional, Posey didn’t have any tenure or “just cause” protection, so his only legal recourse was to sue in federal court for a free speech violation. With assistance from NEA and the Idaho Education Association, he did just that.

In earlier days, Posey would have had an open and shut case. In 1968, the Supreme Court ruled in the Pickering case that school districts can’t fire employees for blowing the whistle on school problems if their speech touches on matters of public concern, such as school safety.

But in May 2006—while Posey’s case was still pending in federal court—the Supreme Court changed the free speech rules, severely limiting First Amendment protection for public school employees. In Garcetti v. Ceballos, the High Court ruled that, when they are speaking as part of their “official duties,” public employees have no First Amendment rights because “official” speech belongs to the employer, not the employee.

In the wake of Garcetti, the Idaho federal court quickly dismissed Posey’s lawsuit, finding that his letter was written as a part of his job as a security specialist. NEA disagreed and funded an appeal.

The good news is that the U.S. Court of Appeals for the Ninth Circuit last October reversed the lower court’s decision. The court said that a jury has to decide whether Posey was performing “official duties” when he wrote the whistleblower letter. If so, his termination would not offend the First Amendment.

The Posey case illustrates the devastating impact of Garcetti: If school employees are performing their “official duties” when blowing the whistle on official misconduct, the First Amendment provides no protection.

Other post-Garcetti court decisions over the last two years are even more disturbing. The court found no First Amendment violation when:

a Connecticut teacher was demoted for reporting suspected child abuse to a state agency;

a school psychologist from Delaware was fired for complaining to her vice principal that the school was discriminating against special education students and violating the Individuals with Disabilities Education Act (IDEA);

a Texas high school athletic director was terminated for writing memos to his principal complaining that the school office manager was mishandling funds for the athletic department;

a clerical worker in a Georgia university financial aid office was fired for reporting that school officials knowingly submitted false or fraudulent claims to the federal government.

In every case, the employees lost their free speech claims because the courts determined that they were simply doing their jobs.

One way to avoid the Garcetti pitfall is to “go public.” Writing a letter-to-the-editor is rarely an employee’s official duty.

But most school employees don’t have to rely on the First Amendment to safeguard their jobs. If an employee has tenure or “just cause” protection under a collective bargaining agreement (CBA), it’s highly unlikely she can be disciplined or discharged for reporting wrongdoing, even if it’s a part of her job.

Employees who don’t enjoy such job protection should make sure their CBAs ban retaliation for whistleblowing. And through their state Associations, they can explore legislation to provide protections.

Of course, the Supreme Court may see the light and overturn Garcetti. That possibility was enhanced by the election of Barack Obama, who likely will appoint at least two employee-friendly Justices.

—Michael D. Simpson, NEA Office of General Counsel

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