In 2006, the U.S. Supreme Court held that public employee speech is not protected by the First Amendment when it is made “pursuant to” official job duties. However, the Court did not clarify what “pursuant to” means, and thus left a gap of confusion in the law that other courts have since tried to fill in.
For example, one year later in 2007, two cases sought to interpret “pursuant to,” in relation to public school teachers. One held that comments delivered at a faculty meeting were not protected under the First Amendment, because they were uttered in relation to official job duties. Another weighed in stating that a professor’s writings and speeches were held to be part of his official duties as well.
On January 27, 2010, the Second Circuit, in Weintraub v. Board of Education of New York, became the latest in this disturbing string of cases to restrict the speech of public employees. It is likely to have a profound impact on free speech cases in Connecticut and New York, and it is only a matter of time before similar restrictions resonate into other circuits as well.
Weintraub involved a fifth grade teacher who filed a grievance with his teacher’s union when the school failed to take disciplinary action against an unruly student accustomed to throwing books at the teacher. In response, the school allegedly retaliated against the teacher and fired him.
The Second Circuit cited a previous case, and then expanded upon it by interpreting “pursuant to” to include speech that is “part-and-parcel of [the teacher’s] concerns” regarding the ability to carry out his job duties. The Court concluded that these duties include a public school teacher’s command of his or her classroom through disciplinary procedures, which the Court described as “an indispensable prerequisite to effective teaching and classroom learning.”
In addition, the Court mentioned that had the employee chosen to voice his concerns through a channel available to non-employee citizens (perhaps an editorial in the local newspaper), rather than an internal channel like a union, his speech may have been protected.
Some hold that this decision treads dangerously into the depth of public school education, and it brings to the forefront the frightening trend of impinging on teachers’ capacity to manage their classroom. This case serves as a wake-up call for all public employees, not just teachers in public schools. Your constitutional rights are being narrowed, and it is likely that other circuits will “follow the leader.”