The First Amendment’s Freedom to Teach: Why SCOTUS Should Not Apply Garcetti to School Speech

The First Amendment’s Freedom to Teach: Why SCOTUS Should Not Apply Garcetti to School Speech

“The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”^[1] Of these freedoms, the First Amendment’s freedom of speech is implicated every day by students and teachers. Teachers hold a special place in the development of students; they influence the next generation of leaders in the United States. The importance of academic freedom is reflected in the courts as well.^[2]

Public educators are, nonetheless, still public employees. With that, freedom of speech protections are different compared to their private counterparts.^[3] These protections were clarified by the Supreme Court with three major precedents: Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos.

Starting with Pickering in 1968, the Supreme Court established a balancing test when confronted with a public school teacher who wrote a letter complaining about the district’s use of funds.^[4] Writing for the court, Justice Marshall noted that teachers may not be constitutionally compelled to “relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work.”^[5] While recognizing these First Amendment concerns, the Court adopted a balancing test because of the countervailing state interests in operating as an employer.^[6] The Pickering test first looks at whether an employer was speaking on a matter of public concern, and if they were, the Court balances the state’s interests with the employees’ to determine if the speech should be protected.^[7]

Although Pickering was a public education case, the Court has applied the Pickering balancing test in cases involving other types of public employees.^[8] In 1983, the Court decided Connick v. Myers, dealing with an Assistant District Attorney who distributed a survey opposing her transfer to a different division of the office.^[9] The Court, finding this to not address a public concern, clarified that whether speech addresses a matter of public concern “must be determined by the content, form, and context of a given statement, as revealed by the whole record.”^[10] It solidified that public employees are not speaking on a matter of public concern just by virtue of being a government employee.^[11] Thus, the speech in Connick failed to make it to the balancing test.^[12] This two-part test, from Pickering and Connick, guided the courts for over twenty years.^[13]

Garcetti v. Ceballos was decided by the Supreme Court in 2005 and added another layer to the test.^[14] Richard Ceballos, a deputy district attorney in California, wrote a memorandum to his supervisors recommending a case be dismissed because an affidavit misrepresented information.^[15] The supervisors still proceeded with the trial, and Ceballos, as a witness, testified to the inaccuracies in the affidavit.^[16] He then claimed he was subject to retaliatory employment actions because of his testimony and memorandum.^[17] The Supreme Court reversed the Ninth Circuit and ruled against Ceballos while adding another step to the Pickering/Connick analysis.^[18] The Court held that because Ceballos was acting “pursuant to his official duties,” he was not entitled to First Amendment protection.^[19]

The aftermath of Garcetti resulted in a three-part inquiry to determine whether a public employee’s speech is protected under the First Amendment.^[20] First, courts will ask if the employee was acting “pursuant to official duties,” which we will refer to as “applying Garcetti.”^[21] If they are, then there is no First Amendment protection.^[22] If they are not, then the court goes to the Pickering/Connick test.^[23] The second inquiry is whether the employee was speaking on “matters of public concern . . . .”^[24] If they are not, then the employee loses.^[25] If they are, then the inquiry continues to the third part: balancing the employee’s interests against the employer’s.^[26] While this is the public employee test, it remains to be seen whether the Supreme Court will apply it to academic speech.

The Court did not specify whether this new standard would apply to teachers.^[27] Responding to Justice Souter’s dissent, the Court noted that academic scholarship and classroom instruction may implicate “additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”^[28] However, the Court determined that it need not “decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching,” leaving the question open for lower courts.^[29]

As the Supreme Court didn’t resolve whether Garcetti applied to “scholarship or teaching,” courts across the country have been left to decide the issue.^[30]This ambiguity has left some courts to apply Garcetti inconsistently to teacher speech.

Some circuits have continued to apply Garcetti to teacher speech. The Seventh Circuit has continued to apply Garcetti in the context of teacher speech.^[31] This Circuit has applied Garcetti in various contexts:  teacher lesson plans and books they assign, complaints about school funding, and specific words teachers used in lessons were all unprotected because they were pursuant to the teachers’ official duties.^[32] Likewise, the Third Circuit has also held, consistent with Garcetti, that “a public university professor does not have a First Amendment right to decide what will be taught in the classroom.”^[33]

Other circuits have been mixed in their application of Garcetti. The Fourth Circuit is one of these, with the most recent precedent applying the law to teacher speech. ^[34] The court applied Garcetti to a professor who was complaining about social justice initiatives at the university, and the court found these comments to be within his capacity as an employee.^[35] The Sixth Circuit has a similar mix: although Garcetti was applied previously, the most recent precedent created an academic freedom exception for professors at postsecondary institutions.^[36]

Lastly, many circuits have refused to apply Garcetti to teacher speech. The Ninth Circuit held that “Garcetti does not—indeed, consistent with the First Amendment, cannot—apply to teaching and academic writing that are performed ‘pursuant to the official duties’ of a teacher and professor.^[37] Instead, it followed the Pickering analysis.^[38] The Tenth Circuit also applies Pickering instead of Garcetti.^[39] This year, the Second Circuit followed suit in Heim v. Daniel.^[40] The court explicitly recognized “that a professor’s academic speech is  ‘anything but speech by an ordinary government employee,’” and applied Pickering as the correct standard to evaluate teacher First Amendment claims.^[41]

The Supreme Court should close the question and reject the application of Garcetti to teacher speech. This should apply not only for postsecondary education but for primary and secondary school teachers too. Teachers hold an important role in society in educating the nation’s future leaders. If teachers automatically lose First Amendment protection by virtue of their employment, then inherently their job as educators would be limited. Furthermore, major circuits like the Second and Ninth have followed suit in rejecting Garcetti, recognizing that even without the first step, state interests can still be protected under the Pickering analysis. With academic freedom in the news recently, the Supreme Court should affirmatively find that Garcetti does not apply to teaching and scholarship if confronted with the issue.