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June 1, 2006

Public employers score big win in Supreme Court

On Tuesday, the Court ruled in Garcetti v. Ceballos that public employees do not have First Amendment rights when they are speaking in their official roles as public employees, and not as private citizens. Past BoardBuzz postings on the case, and its significance for schools, are here and here.

In part because of the specific facts alleged in this case, the headline shorthand has become "no protection for whistle-blowers." New York Times here. L.A. Times, with good short history of law in this area, here. Critics of the decision are raising the specter of misdeeds or mismanagement going unchallenged, with subtle and not-so-subtle allusions to corruption cases, disaster relief, domestic surveillance, detainees, General Shinseki, etc. Good Washington Post coverage, here.

But the majority opinion, written by Justice Anthony Kennedy, notes that public employees have other protections, like whistle-blower laws, and agrees with employers that there's no need to inflate every workplace dispute into a potential constitutional issue. As NSBA General Counsel Francisco Negrón puts it in NSBA's press release and in this interview with NPR's Marketplace, a public employee is an employee first, and public employers have the same right as private employers to oversee an employee's conduct.

The main dissent, written by Justice David Souter, denounces the majority's "winner-take-all" decision and argues that the First Amendment should at least reach certain cases of "unusual importance," like alleged wrongdoing or health and safety issues.

Dissenting separately, Justice Stephen Breyer also has problems with the majority's categorical rule, but he thinks Souter & Co. fail to consider the serious problems that would result from allowing so many of these lawsuits to be brought. That's the point NSBA attorney Lisa Soronen makes to the Atlanta Journal-Constitution, here: Public employers facing tough decisions have to worry about pretextual claims of employment retaliation. Breyer would draw the line somewhere in between Kennedy's and Souter's.

The AP's Gina Holland highlights the role of Justice Samuel Alito in the 5-4 decision. She specifically contrasts the outcome in this case with the result in the Title IX case from a year ago, which BoardBuzz discussed here.

Then and now, a key point of contention was whether whistle-blowers have other protections. In the Title IX case, the Court was unimpressed with arguments that whistle-blowers would by no means be left helpless just because they were unable to sue specifically under Title IX. In this case, however, the Court decided that the U.S. Constitution and federal courts are not the best tools for managing these employment matters.

The reality is that school boards and other public employers have plenty of incentives to make sure their employees feel they can safely come forward and bring up issues internally. It shouldn't take the First Amendment to get there.

Posted June 1, 2006 9:00 AM | School Law

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