The case is Weintraub v. Board of Education, decided on January 27. In 2006, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that the First Amendment does not protect public employee speech made pursuant to the plaintiff's official job duties. This ruling "narrowed the Court's jurisprudence in the area of employee speech by further restricting the speech activity that is protected," the Second Circuit tells us. Until now, the Second Circuit had not explored the outer limits of Garcetti, making it perhaps the last federal circuit to interpret Garcetti in a close case.
Weintraub's fifth grade student threw books at him, but the school did not properly discipline the punk, who apparently had a violent history. Unhappy with the school's failure to take this problem seriously, Wientraub filed a union grievance. This speech prompted management to retaliate against him. Prior to Garcetti, the Second Circuit's public employee speech case law would have probably protected Weintraub from retaliation, since the speech addressed the proper functioning of a public institution. With Garcetti on the books, the Court of Appeals has to start fresh in outlining the speech rights of public employees.
The precise holding is that "Weintraub, by filing a grievance with his union to complain about his supervisor's failure to discipline a child in classroom, was speaking pursuant to his official duties and thus not as a citizen." In reaching this conclusion, the Court of Appeals (Jacobs and Walker) rejects Weintraub's argument that "'the key' to the First Amendment inquiry provided by Garcetti is whether he was 'required, as part of his employment duties to initiate grievance procedures against ... Goodman.'" This is not a bad argument, which some courts have accepted in a strict reading of Garcetti, where the plaintiff in that case (a calendar deputy in the DA's office) spoke out about a matter strictly within his job description: recommending that a questionable case be dismissed. But the Second Circuit reads Garcetti more broadly to mean that
[U]nder the First Amendment, speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” as a public school teacher -- namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.
This is broad interpretation of Garcetti, as Judge Calabresi argues in dissent. But the Court of Appeals adds another wrinkle to this analysis, concluding that Weintraub also has no case because "his speech ultimately took the form of an employee grievance, for which there is no relevant citizen analogue." The Court draws this from Garcetti's statement that "While [t]he First Amendment protects some expressions related to the speaker’s job ..., [w]hen a public employee speaks pursuant to employment responsibilities, ... there is no relevant analogue to speech by citizens who are not government employees." Although the lack of any "citizen analogue" is not central to the holding in Weintraub, the Second Circuit says, "it does bear on the perspective of the speaker -- whether the public employee is speaking as a citizen -- which is the central issue after Garcetti." Judge Walker tells us that the citizen analogue for public employee speech would be a letter to the editor or political discussions in the workplace, the kinds of speech that the rest of us engage in.
Judge Calabresi dissents, accusing the majority of narrowing public employee speech rights in a strained interpretation of Garcetti. He writes that "The majority’s first prong, which looks to whether speech is 'in furtherance of' an employee’s 'core duties,' seems to me too broad." He adds, "The majority’s second prong, which asks whether there is a 'relevant citizen analogue' to Weintraub’s speech, is also a plausible interpretation of Garcetti, but I am not convinced that it is the right one."
The holding in this case rubs Judge Calabresi the wrong way: "The majority’s discussion could be read to imply that — assuming the second prong of the majority’s test is also satisfied — classroom teachers receive no First Amendment protection anytime they speak on matters that implicate anything that is 'an indispensable prerequisite to effective teaching and classroom learning.' But the prerequisites for effective learning are broad and contentious; everything from a healthy diet to a two-parent family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as 'in furtherance of' the core duty of encouraging effective teaching and learning. The line-drawing this entails is necessarily subjective and provides little certainty to the employers and employees who must structure their behavior around our law."
Rather, Judge Calabresi would limit Garcetti 's to cases where the "employee is required to make such speech in the course of fulfilling his job duties. ... [I]t it must be possible to say that the employer has 'commissioned or created' the speech, Garcetti, 547 U.S. at 422 — that the employer in some way relies on the speech made by the employee, as where the speech is an 'official communications' or is used by the employer to 'promote the employer’s mission,' id. at 423."