Getting to "sometimes": expanding teachers' First Amendment rights through "Garcetti's caveat".

• Author: Galea, Benjamin C.

INTRODUCTION

The Supreme Court has recognized that "education is perhaps the most important function of state and local governments." (1) Public schools (2) must "inculcat[e] fundamental values necessary [for] the maintenance of a democratic political system," (3) while also developing "leaders ... through wide exposure to [the] robust exchange of ideas." (4) Even though the fulfillment of these aims is primarily the province of state and local officials, public schools must not contravene the Constitution in the service of their educational missions. (5) The Court's "public schools jurisprudence has established that the First Amendment requires school officials to accommodate some student speech in the process of educating the nation's youth. (7) Beyond the Court's 1968 declaration in Tinker v. Des Moines Independent Community School District that, like students, "teachers [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (8) however, the Court has not provided school officials with any explicit guidance regarding the extent to which they must tolerate teachers' speech in the course of their instructional duties. (9)

To determine whether the Constitution protects teachers' classroom speech, then, the United States Courts of Appeals have looked to one or more analogous First Amendment perspectives. (10) First, courts have viewed teachers as public employees and, applying the test that the Supreme Court first announced in Pickering v. Board of Education (11) and later refined in Connick v. Myers, (12) have balanced teachers' interests in speaking as citizens on matters of public concern against schools' interests in their ability to provide an education for their students. (13) Second, courts have seen schools as nonpublic fora with "special characteristics" (14) and, under Hazelwood School District v. Kuhlmeier, (15) have looked for the legitimate pedagogical concerns underlying schools' restrictions on teachers' classroom speech. (16) Third, at least one court has considered identifying the school itself, rather than the teacher, as the speaker, citing Rust v. Sullivan (17) and Rosenberger v. Rector and Visitors of University of Virginia (18) for the proposition that that school officials should have the ability to control the content of the educational message that their students receive. (19) Finally, courts have also regarded teachers as First Amendment figures under Keyishian v. Board of Regents (20) and have considered the extent to which schools' right to "fix the curriculum" (21) must accommodate teachers' responsibility to expose students to the marketplace of ideas. (22)

The Supreme Court's 2006 decision in Garcetti v. Ceballos (23) "dramatically changed the [First Amendment] landscape" (24) from the first of these four perspectives. Instead of evaluating the nature of a public employee's speech and engaging in the "particularized balancing" (25) of the employee's interest in that speech against the public employer's interest in the efficient provision of its services, the Garcetti Court announced that the First Amendment offers no protection for a public employee's speech "made pursuant to ... [that employee's] official responsibilities." (26) Because "[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests," (27) however, the Court qualified the scope of its holding, suggesting that the First Amendment may offer some protection to a public employee's speech related to "scholarship or teaching." (28)

Despite "Garcetti's caveat," (29) judicial responses to the decision in the circuit courts have been no more sensitive to teachers' First Amendment rights in the classroom, but rather have, on the whole, been more restrictive. (30) As a result, it is not surprising that one commentator has suggested that "Garcetti may ultimately prove the death knell for any meaningful First Amendment rights for [teachers'] classroom related communications." (31) In light of the limited extent of those rights before Garcetti, however, there is some consensus that Garcetti's "practical impact ... may be minimal." (32)

While others have noted that Garcetti may be a reason for mild optimism, (33) this Note argues that Garcetti represents the best opportunity for the expansion of teachers' First Amendment rights in the classroom since Tinker's pronouncement that respect for the constitutional rights of students and teachers is a mandatory component of the public school curriculum. (34) Through an examination of each of the four First Amendment perspectives on this issue, Part I of this Note explains the scope of teachers' rights to free expression in the classroom before Garcetti. Part II then discusses the Garcetti decision and the ways in which it has affected circuit courts' views of teachers' classroom speech. Analyzing the circuit courts' pre- and post-Garcetti jurisprudence, Part III of this Note argues that courts certainly could, and perhaps should, use Garcetti's caveat to treat teachers' classroom speech in such way that respects teachers' role as servants not only of the public schools, but also the First Amendment.

1. TEACHERS' FIRST AMENDMENT RIGHTS IN THE CLASSROOM BEFORE GARCETTI

   1. A Public Employee's Right to Free Expression in the Classroom

      Before Garcetti, one First Amendment perspective that circuit courts used to determine whether the First Amendment protected a teacher's classroom speech adopted the Supreme Court's public-employee speech jurisprudence, (35) rooted in Pickering v. Board of Education (36) and Connick v. Myers. (37) In Pickering, the Supreme Court held that school officials violated Marvin Pickering's First Amendment rights when they discharged Pickering from his teaching position because of a letter that he sent to a local newspaper criticizing the school board and, in the process, announced a new test for evaluating whether a public employee's speech enjoys constitutional protection. (38) The Court stated that "teachers may [not] constitutionally be 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." (39) On the other hand, the Court recognized that "the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." (40) The Court, therefore, sought to find "a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." (41) Because the Court found that Pickering's criticism of school officials did not "impede[] the teacher's proper performance of his daily duties in the classroom or ... interfere[] with the regular operation of the schools generally," (42) it concluded that the school board's interest in restricting Pickering's speech was no greater than its interest in restricting the speech of an ordinary citizen and, consequently, that the board could not discipline Pickering for his speech without violating the First Amendment. (43)

      Thirteen years later, in Connick v. Myers, (44) the Court clarified the application of Pickering's balancing test. (45) In Connick, the Court held that the First Amendment did not protect a questionnaire that Shelia Myers, an assistant district attorney, distributed to her coworkers seeking their opinions about the district attorney and the policies of his office. (46) The Court emphasized the importance of the "public concern" dimension of the Pickering test and concluded that an evaluation of a public employer's interest in discharging an employee because of that employee's speech is only appropriate when the speech "can[] be fairly considered as relating to any matter of political, social, or other concern to the community." (47) Considering, then, the "content, form, and context" of Myers's questionnaire, (48) the Court found that one of the questions touched a matter of public concern because it sought information regarding any pressure that Myers's fellow attorneys may have felt to work on certain political campaigns, which the Court had previously recognized as a "coercion of belief in violation of fundamental constitutional rights" (49) and which was related to the "interest in this country that government service should depend upon meritorious performance rather than political service." (50) From this finding, the Court proceeded to balance Myers's limited interest in "an employee grievance concerning internal office policy" (51) against the district attorney's reasonable belief that the questionnaire would "disrupt the office, undermine his authority, and destroy close working relationships," (52) concluding that the district attorney's interests were more significant and, therefore, that Myers's discharge did not violate the First Amendment. (53)

      When circuit courts viewed teachers as public employees and applied Pickering-Connick's two-part test, teachers' classroom speech received very little First Amendment protection. (54) The United States Court of Appeals for the Third Circuit's 1990 decision in Bradley v. Pittsburgh Board of Education (55) represents perhaps the firmest judicial rejection of a public employee's right to free expression in the classroom. (56) In Bradley, the Third Circuit held that school officials did not violate Diane Murray's First Amendment rights by prohibiting her use of Learnball, a classroom management technique that brings the excitement of sport into the classroom by engaging students in competitive educational exercises for extrinsic rewards. (57) Although it noted that Pickering does afford...