Another Garcetti case bites the dust

It's been a while since I've seen a Second Circuit ruling on a First Amendment Garectti issue. Garcetti issues raise public employee speech retaliation issues. The plaintiff usually loses these cases because only a narrow band of public employee speech is protected under the First Amendment. This case is a good example of that.

The case is Cohn v. Department of Education of the City of New York, a summary order decided on September 20. Under the First Amendment, public employees cannot suffer retaliation for speaking out as citizens on matters of public concern. The Supreme Court's Garcetti decision (2006) holds that public employee speech is not protected if the plaintiff uttered the speech pursuant to his job duties. This means the comptroller of a municipality has no First Amendment protection if he blows the whistle on embezzlement, as that whistleblowing is his job.

Cohn was an Earth Science teacher in the New York City school system. He was required to set up the laboratory portion of the Regents Examination and help grade it. After discovering that about a dozen students in another teacher's class had received perfect scores, and suspecting that the teacher had coached the kids prior to the test, Cohn raised his concerns to the principal and to the New York Department of Education. Afterward, Cohn got shafted at work.

To the uninitiated, Cohn has a case, right? He spoke on a matter of public concern -- a corrupt Regents process -- and was retaliated against for that speech. In the real world, Cohn has no  case. He did not speak out as a citizen. Speaking up about the corrupt testing process in his school was part and parcel of his job duties, that is, "ensuring the fair and proper administration of a test for which he he had some responsibility. The alert to school officials that another teacher may have helped students cheat was therefore 'pursuant to his official duties."