2.114 - (2) Application Of The Pickering Balancing Test

• Jurisdiction: New York

(2) Application of the Pickering Balancing Test

Once it is determined that the employee was not acting pursuant to official job duties and the speech touched upon an issue of public concern, the court will balance the interests of the employee as a citizen to comment on matters of public concern with the public employer’s responsibility to provide efficient public services. When the speech substantially involves matters of public concern, it is entitled to significant weight under the balancing test.¹⁴²⁹ The employer must establish either that the employee’s conduct interfered with the effective or efficient fulfillment of its responsibilities to the public, or the employer reasonably believed that the speech presented a reasonable potential for disruption or would interfere with governmental operations.¹⁴³⁰ In cases predicated on a perceived reasonable potential for disruption, the Second Circuit Court of Appeals has stated that “[o]nce an employee demonstrates that her speech was the motivating factor behind an adverse employment action, the burden shifts to the Government ‘to make a substantial showing of likely interference.’”¹⁴³¹ The adverse employment action “will only be upheld if: (1) the employer’s prediction of disruption is reasonable; (2) the potential disruptiveness is enough to outweigh the value of the speech; and (3) the employer took action against the employee based on this disruption and not in retaliation for the speech.”¹⁴³² The disruption “must be significant enough so that it impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.”¹⁴³³

The decision of the New York State Court of Appeals in Santer v. Board of Education of East Meadow Union Free School District is illustrative of the manner in which courts apply the Pickering balancing test.¹⁴³⁴ In Santer, the Court looked to the specific factual context giving rise to the disciplinary charges at issue in the case, and found that picketing outside of a public school by teachers was unprotected under the Pickering balancing test because the picketing was intentionally disruptive and created a potential risk to student safety.

The Court found that the conduct related to a matter of public concern, and was therefore presumptively entitled to First Amendment protection. The Court likewise found that the District’s interests were legitimate: “ensuring the safety of its students and maintaining orderly operations at [the school].”¹⁴³⁵ The Court further found that the District had adduced sufficient evidence to justify disciplining the teachers by “show[ing] that the parking demonstration created dangerous traffic conditions in front of the school that could have injured a student and that caused actual disruption to the school’s operations.”¹⁴³⁶ The Court relied heavily on the State’s “public policy in favor of protecting children,” and the District’s in loco parentis role as to students in public schools.¹⁴³⁷ As a result, the Court of Appeals concluded that the teachers’ interests in engaging in protected speech was outweighed by the school district’s interests in maintaining an orderly and safe school.¹⁴³⁸

In McEvoy v. Spencer,¹⁴³⁹ the court reiterated that the nature of the job held by the public employee can play a significant role in the application of the Pickering balancing test.¹⁴⁴⁰ In Rankin v. McPherson,¹⁴⁴¹ the Supreme Court held that the First Amendment protected a data-entry employee in a county Constable’s office, who had been discharged for saying in a private conversation with a co-worker, after hearing about an attempt on the President’s life, “if they go for him again, I hope they get him.” By contrast, speech has been found to be unprotected where the speech is public and has the effect of fomenting tension between the public agency and the community served,¹⁴⁴² or has “caused or has the potential to cause, disruption among members of the Department workforce and could have a negative impact on attracting and retaining the most qualified employment candidates.”¹⁴⁴³

In addition, courts recognize a heightened governmental interest under the Pickering test in maintaining discipline, harmony and the public image regarding law enforcement and firefighters.¹⁴⁴⁴ For example, the disharmony within a fire department, caused by a firefighter’s public allegations of racism, was found to outweigh the firefighter’s First Amendment interests.¹⁴⁴⁵ In Greer v. Amesqua,¹⁴⁴⁶ the Seventh Circuit ruled that because a firefighter issued a news release rather than utilize internal procedures to complain about perceived favoritism, the employer’s interest in maintaining order was found to be substantial.¹⁴⁴⁷

A similar heightened governmental interest has been found applicable within a state court judge’s chambers and among school administrators. Based on the confidential relationship between a judge and chamber staff...