Garcetti and Schools Series

By Justin Bathon

September 2008

Links to Original Posts (Contains Comments)

1. Johnson v. Poway Shows Why Garcetti Doesn't Work for Schools
2. More on Why Garcetti was Wrong for Schools
3. Overruling the Spirit of Pickering

Content Only (No Comments)

Johnson v. Poway Shows Why Garcetti Doesn't Work for Schools

Monday, September 15, 2008 at 10:15AM | Justin Bathon 

Of all the teacher expression cases I have read so far, this is one of the best examples of why the   Garcetti  doctrine  doesn't work for schools. Let me just start with this: (1) I personally think the teacher should be allowed to keep the banners, but (2) under the existing legal framework it is hard to see how this case was decided correctly. 

I am not going to go into the details of the case ( Mark Walsh has them ), but the basic facts are that a teacher had those patriotic sayings that include the word God in them (God bless America, In God we Trust, etc. ...  Picture ) on several banners in his classroom. The school principal asked him to take them down and the teacher refused. Now, you should know there were other teachers in the school with sayings on banners that could also be construed as religious so there was some practice of allowing teachers freedom to display personal messages on the walls of their classroom.

The judge in the case stressed that the teacher has a free expression right in the classroom and that the banners were not hung in his official capacity as a school employee. Really? .... I got to disagree. 

The judge starts by citing   Tinker   so that should clue us in that he is not going to buy into this  Garcetti  stuff. The judge then went on to recite the entire teacher expression Supreme Court history pre- Garcetti  and then said, "Garcetti by its own terms does not extend to the public school setting" and basically just threw  Garcetti  and all the case law on teacher expression published subsequently out the window. The problem is that  Garcetti  does exist and it has been pretty unanimously interpreted to apply to schools, so it is pretty hard to justify the judge's actions in not considering that case at all. 

Had  Garcetti  been considered, which I am sure it will be at the appellate level when this case is overturned, it is hard to see how the teacher wins. If the basic principle is that the school should have control over its official messages as articulated by teachers, it is hard to see how banners are not construed as within the scope of employment and related to the school's message. Within the  Garcetti  era, this is a pretty cut and dry case in favor of the school. 

But, this case is an excellent example of just how ridiculous the  Garcetti  doctrine can be when applied to schools. The very reason that we value teachers is for their uniqueness and their own personal thoughts that they bring to the classroom, yet this case is severely curtailing what teachers are allowed to say. Public education is not a business and teachers are not at-will employees. When teachers show their own personality and even when they criticize a school, that can make the school stronger. The judge in this case felt that tension and probably felt that  Garcetti  is bad for schools, but that still doesn't excuse his actions in disregarding what is pretty clearly binding precedent.

Keep an eye on this one. The higher this case gets, the better, because there is no way that conservative members of Supreme Court are going to take away those banners so they will be forced to clarify their stance in  Garcetti . Here is hoping the 9th Circuit affirms this case and the Supreme Court takes it.   

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More on Why Garcetti was Wrong for Schools

Tuesday, September 16, 2008 at 05:26PM | Justin Bathon

I was asked in the comments of my previous post to explain in more detail why I think Garcetti is a bad ruling for schools. Because this is important (it affects what all teachers are allowed and not allowed to say in and out of schools) I want to make sure everyone sees my response. 

First, a brief overview of the teacher expression rights and how Garcetti changed that is in the picture below (this is somewhat based on the chart on page 310 of the McCarthy text - which I participated in conversations surrounding its creation post-Garcetti).

As you can see, Garcetti inserts a new test prior to the existing legal framework concerning whether the speech is made pursuant to official job duties. Of course, a lot of the previously protected speech related to official job duties, so lots of expression that was protected prior to 2006 is not protected today and that determination is largely at the hands of the administrator becasue school board and courts typically show some administrative deference to school officials. 

So, that's what it did, now let's look at why it was wrong.

The fundamental question here is who is the employer? The school board, the state, or the public, generally? Although legally the school board might be the right technical answer, the state or the public is closer to the more correct practical answer and also closer to the more correct democractic answer. The Supreme Court in Pickering understood this. The Supreme Court in Garcetti did not.

The owner or shareholders of a company is the company. Nothing exists beyond their interests and if employees violate those interests, they are fired - no questions asked. That is fine and dandy, but it is not the same for schools. The superintendent, principal or school board are just substitutes for the larger state or public interest, who actually own the schools. That is the very reason why Pickering created the "public interest" part of the balancing test in the first place. That language is not by chance. The public was the central interest (the owner) and expression that affected the public was protected because a democracy depends both on positive and negative expression to make it healthy and growing. The public, then, through traditional legal frameworks, could weed out the bad and keep the good expression. (Think of a teacher criticizing the special ed. policies of a school. Under Garcetti she could be fired. Under Pickering she could not be and she would be allowed to press her case to a vote at the school board, for example. That school board vote is democracy dealing with criticism. It is healthy. It is good. But, under Garcetti, it is now largely absent when it is teacher initiated).

Because teachers are our front lines, their perspectives are some of the best to have. The state and public are frequently benefited when teachers express their opinions, even if they are counter to what the administration feels comfortable with. Clearly, if this "under God" banner were to be put to a vote, even in So. Cal., the voters would probably want this teacher to keep his banners which really are not doing much harm, especially in light of the understanding that other classrooms in the school had Tibeten prayers or whatnot. Thus, this principal is probably acting counter to the larger public interest and the larger public interest is served when the teacher expresses himself. While we may not think of this as whistle-blowing, it sort of is on a small scale and democracy depends on whistle-blowers for its survival and adaptation. Now, sometimes teachers are going to go against the public interest in their statements, but (1) that is a risk I am willing to live with to provide the check on school boards and administrators and (2) pre-Garcetti expression rulings and traditional firing tools did a fairly decent job of regulating this behavior. It is not like before Garcetti we had teachers out proselytizing anarchy all over the country.

So,  in my mind at least, at its core what Garcetti did was change the ownership decisionmakers of schools from the public to the school board/administration. That in an of itself is harmful to schools.

Now, on top of that, schools ARE different. Schools are built upon a long history of education by teachers whereby they are granted additional rights to teach and say what they think, which is why the protections of the tenure system were created and installed in the first place.  That very diversity in viewpoints is what is valuable. When looking at a pile of teacher applications, the administrator and/or board is going to favor the ones with unique aspects because they want something new and different to offer their students. I don't see why you would then want to eliminate all that once they sign on the bottom line and suddenly stop them from using their uniqueness to improve the school. 

Next, I think this has actually created more litigation, although I don't have stats on that (would be a good research project, actually). I am sure in the minds of the Garcetti majority justices, moving the decisionmaking from the public (ultimately judges & votes and whatnot)  to administrators would create fewer court cases as it seems much more efficient. But I would be willing to bet that in fact, it has created more because administrators are not trained to speak for the public in this way and frequently make mistakes. With this new rule under Garcetti, there is a much higher amount of regulation meaning more teachers can be fired for more statements (at least potentially - I don't have stats). This creates a much bigger pool from which cases can emerge. Under the old Pickering system while the initial decision maker (perhaps the judge or a school board vote) may be at a more distant location from the speech itself, there was a much higher level of acceptance on the part of administrators and much less potential regulation from which cases may emerge - i.e. the potential pool of affected speech was much smaller. Anyway, that is my sense, but I need stats to say that with authority.

Finally, the Garcetti ruling is going to have, if it hasn't already, a chilling effect on new teachers who will be vastly less likely to become teachers if teaching becomes a profession that devalues teacher uniqueness and perspective and values a business/factory model of instruction. Having taught undergrads for multiple years, we get a lot of teachers BECAUSE they don't want to live in the business world. They want to maintain their unique perspectives on the world and be able to convey those perspectives to future citizens (Lord knows it is not for the money). Those undergrads I taught, their mouths dropped to the floor when I told them about this ruling and I could literally see them changing their perspective on their chosen careers in front of my eyes. That is not an exaggeration, either. This ruling really affected those kids in a highly negative way and I know if you ask other pre-service teacher professors, you would hear the same story.

Anyway, there you have it. It might not be the best attack on Garcetti, but I do think it gets at the essential issues of why Garcetti is wrong for schools. 

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Overruling the Spirit ofPickering

Thursday, March 19, 2009 at 05:53PM

Justin Bathon

I'm now conformable making this statement: Garcetti expressly overruled the spirit of Pickering.

Consider this from Pickering:

However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members' own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system ... cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.

And this from Garcetti:

Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission... If Ceballos' superiors thought his memo was ... misguided, they had the authority to take proper corrective action.

What's fundamentally different is how the Court views the employer. In Pickering the Court found that the public interest in schooling is determined not by the Board of Education, but by the court of public opinion ... manifested in our democratic structures. The Court in Garcetti takes exactly the opposite view equating the employer with the public interest. The school board's opinion is the only manifestation of the public interest that matters and all others are subservient or possibly threatening to this public interest. Using Pickering's quote above ... "cannot [YES IT CAN] reasonably be regarded as per say detrimental to the district's schools." In this way, Garcetti directly overrules the spirit of Pickering.

In many ways Garcetti shows a fundamental mistrust in the structures of democracy that compensate for dissonance. Consider this:

Ceballos' proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents.

Yes it does. Pickering, in the above quote, just said it was comfortable with that and is comfortable with the idea that the public, through the democratic structures, which include but are not limited to the court system, will find a way to resolve it. Sometimes it was ignoring teacher speech. Sometimes it was other teachers helping to control it through social means. Sometimes it was principals sitting down with a teacher behind closed doors. Sometimes it was the PTA acknowledging but not acting on concerns. Sometimes it was firing the teacher on other grounds. Sometimes it was the Union getting involved. And, yes, sometimes it even hit the Court system (although in no way can we say the Courts were overrun following Pickering). But sometimes, and maybe even relatively few times, the expression actually changed something.

Democracy is messy. Democracy is rightfully messy. It has to be messy - you have to be willing to throw thousands of ideas at a wall in the hope that just one will stick. You have to trust our teachers. You have to trust our administrators. You have to trust our communities. You have to trust our Courts. You have to trust our local and state assemblies. Pickering trusted democracy. Garcetti didn't.