More on Why Garcetti was Wrong for Schools
Justin Bathon on Tuesday, September 16, 2008 at 5:26PM I was asked in the comments of my previous post to explain in more detail why I think Garcetti is a bad ruling for schools. Because this is important (it affects what all teachers are allowed and not allowed to say in and out of schools) I want to make sure everyone sees my response.
First, a brief overview of the teacher expression rights and how Garcetti changed that is in the picture below (this is somewhat based on the chart on page 310 of the McCarthy text - which I participated in conversations surrounding its creation post-Garcetti).
;)
As you can see, Garcetti inserts a new test prior to the existing legal framework concerning whether the speech is made pursuant to official job duties. Of course, a lot of the previously protected speech related to official job duties, so lots of expression that was protected prior to 2006 is not protected today and that determination is largely at the hands of the administrator becasue school board and courts typically show some administrative deference to school officials.
So, that's what it did, now let's look at why it was wrong.
The fundamental question here is who is the employer? The school board, the state, or the public, generally? Although legally the school board might be the right technical answer, the state or the public is closer to the more correct practical answer and also closer to the more correct democractic answer. The Supreme Court in Pickering understood this. The Supreme Court in Garcetti did not.
The owner or shareholders of a company is the company. Nothing exists beyond their interests and if employees violate those interests, they are fired - no questions asked. That is fine and dandy, but it is not the same for schools. The superintendent, principal or school board are just substitutes for the larger state or public interest, who actually own the schools. That is the very reason why Pickering created the "public interest" part of the balancing test in the first place. That language is not by chance. The public was the central interest (the owner) and expression that affected the public was protected because a democracy depends both on positive and negative expression to make it healthy and growing. The public, then, through traditional legal frameworks, could weed out the bad and keep the good expression. (Think of a teacher criticizing the special ed. policies of a school. Under Garcetti she could be fired. Under Pickering she could not be and she would be allowed to press her case to a vote at the school board, for example. That school board vote is democracy dealing with criticism. It is healthy. It is good. But, under Garcetti, it is now largely absent when it is teacher initiated).
Because teachers are our front lines, their perspectives are some of the best to have. The state and public are frequently benefited when teachers express their opinions, even if they are counter to what the administration feels comfortable with. Clearly, if this "under God" banner were to be put to a vote, even in So. Cal., the voters would probably want this teacher to keep his banners which really are not doing much harm, especially in light of the understanding that other classrooms in the school had Tibeten prayers or whatnot. Thus, this principal is probably acting counter to the larger public interest and the larger public interest is served when the teacher expresses himself. While we may not think of this as whistle-blowing, it sort of is on a small scale and democracy depends on whistle-blowers for its survival and adaptation. Now, sometimes teachers are going to go against the public interest in their statements, but (1) that is a risk I am willing to live with to provide the check on school boards and administrators and (2) pre-Garcetti expression rulings and traditional firing tools did a fairly decent job of regulating this behavior. It is not like before Garcetti we had teachers out proselytizing anarchy all over the country.
So, in my mind at least, at its core what Garcetti did was change the ownership decisionmakers of schools from the public to the school board/administration. That in an of itself is harmful to schools.
Now, on top of that, schools ARE different. Schools are built upon a long history of education by teachers whereby they are granted additional rights to teach and say what they think, which is why the protections of the tenure system were created and installed in the first place. That very diversity in viewpoints is what is valuable. When looking at a pile of teacher applications, the administrator and/or board is going to favor the ones with unique aspects because they want something new and different to offer their students. I don't see why you would then want to eliminate all that once they sign on the bottom line and suddenly stop them from using their uniqueness to improve the school.
Next, I think this has actually created more litigation, although I don't have stats on that (would be a good research project, actually). I am sure in the minds of the Garcetti majority justices, moving the decisionmaking from the public (ultimately judges & votes and whatnot) to administrators would create fewer court cases as it seems much more efficient. But I would be willing to bet that in fact, it has created more because administrators are not trained to speak for the public in this way and frequently make mistakes. With this new rule under Garcetti, there is a much higher amount of regulation meaning more teachers can be fired for more statements (at least potentially - I don't have stats). This creates a much bigger pool from which cases can emerge. Under the old Pickering system while the initial decision maker (perhaps the judge or a school board vote) may be at a more distant location from the speech itself, there was a much higher level of acceptance on the part of administrators and much less potential regulation from which cases may emerge - i.e. the potential pool of affected speech was much smaller. Anyway, that is my sense, but I need stats to say that with authority.
Finally, the Garcetti ruling is going to have, if it hasn't already, a chilling effect on new teachers who will be vastly less likely to become teachers if teaching becomes a profession that devalues teacher uniqueness and perspective and values a business/factory model of instruction. Having taught undergrads for multiple years, we get a lot of teachers BECAUSE they don't want to live in the business world. They want to maintain their unique perspectives on the world and be able to convey those perspectives to future citizens (Lord knows it is not for the money). Those undergrads I taught, their mouths dropped to the floor when I told them about this ruling and I could literally see them changing their perspective on their chosen careers in front of my eyes. That is not an exaggeration, either. This ruling really affected those kids in a highly negative way and I know if you ask other pre-service teacher professors, you would hear the same story.
Anyway, there you have it. It might not be the best attack on Garcetti, but I do think it gets at the essential issues of why Garcetti is wrong for schools.
Reader Comments (6)
Overall, I very much agree with each of your points, Justin. Where we (perhaps) disagree is that I think the Pickering approach is also harmful and illogical as applied to in-classroom teacher speech. See Welner, K. G. (2003). Locking up the marketplace of ideas and locking out school reform: Courts’ imprudent treatment of controversial teaching in America’s public schools. UCLA Law Review, 50(4), 959-1030.
There is also a chapter by Van Iwaarden, Medal and Callahan, concerning Garcetti as applied to schools/teachers, in Welner, K. G., & Chi, W. C. (Eds.) (2008). Education Policy and Law: Current Issues. Greenwich, CT: Information Age Publishing. I think you'll find yourself nodding while reading it.
Cheers, k
Justin, I'm intrigued by the reaction of your students who are/were preservice. I say that because my experience with sitting educators (both teachers and leaders) is that, for the most part, they fully understand the nature and context of their work. They respect and take pride in the fact that they are effectively public servants and, therefore, are subject to higher levels of scrutiny and expectation. They're certainly less willing to give up out-of-school freedoms, but they're willing to concede that their workplace is unique. Your students still have choices about careers to pursue, so maybe my students are just in denial or just more mature and reflective.
Either way, I'm a TOTAL non-accomodationist when it comes to issues of religion in schools. So, I'd be willing to protect teacher speech in the classroom so long as it can't in any way be construed as entangled in any way with religion. Why does this teacher need to fly these banners? If his purpose is to promote patriotism, aren't there gobs of ways to do that without explicitly invoking god? I feel the same way about music/chorus/choir issues. It's not like there's a shortage of wonderful secular music for kids to perform that they have to mix in some religious-themed music.
I think we can protect teacher speech (if we can get rid of Garcetti) and still allow for the decision of the principal in this particular case.
Aren't you ignoring the effect of Hazelwood v. Kuhlmeier on K-12 teacher academic freedom lawsuits (and in your discussion above)? Absent a collective bargaining agreement that granted academic freedom rights, you'd be hard pressed to find a court post-Hazelwood that favored a teacher when it comes to in-classroom speech. Isn't that the rub here? There's a big difference between teacher speech to the PUBLIC and teacher speech IN CLASS. Topics that we might want to allow teachers to discuss outside of class aren't necessarily the same ones that we want teachers to discuss in class. I think you have to address this critical distinction in your analysis.
BTW, your graphic is nicely done!
@Kevin - I think you have a good point on Pickering, although I would hesitate to get rid some framework like that that gives administrations some control over teacher speech. The fact that Pickering is balancing these interests expressly I think is what makes it useful. There is an explicit indication to judges and school officials that they need to be flexible on teacher speech. But, I will be sure to check out your article on it.
@ Jon - It is a pre-service difference, I think. When I teach future administrators they are much less appalled, although they too are still somewhat appalled at this case. I think they just have already processed and accepted the fact that there are as many or MORE rules placed on teachers than on non-public employees. Pre-service teachers are not really aware of that ... until their school law class that is (if they get one!).
@ Scott - I am not ignoring Hazelwood, but I see Hazelwood as very, very in-classish and thus limited in scope compared to Garcetti. The school sponsored Hazelwood language I think implies a different domain than "related to official job duties" type language. Hazelwood would seem not to care about a teacher speaking about the school in the beauty shop, whereas Garcetti would seem very much to care about that. There is a difference in scope in those two cases with Hazelwood with a fairly narrow scope closely aligned with instructional speech and Garcetti with a fairly broad scope related to anything that has to do with the school. But, obviously those scopes differ from case to case and that is just my interpretation. I am aware that some scholars said that Garcetti did not do anything that Hazelwood had not already done, but I tend to disagree with that as I see Garcetti really broadening the scope of acceptable regulation beyond what was in place already.
I agree with you that Garcetti does something different to teacher speech than Hazelwood.
Garcetti is more of a Pickering-type case than a Hazelwood case. However, this Poway incident is a Hazelwood-type case and thus I think you should have included Hazelwood in the discussion. If you're going to talk about teacher public speech outside of the classroom, talk about Garcetti, Pickering, Connick, Givhan, Mt. Healthy, etc. If you're going to talk about teacher speech inside the classroom, Hazelwood has to be part of a discussion, particularly if you're going to talk about academic freedom issues and the right of teachers to express opinions possibly contrary to schools' Constitutional obligations while they're teaching.
Justin, I also disagree with your 'community support' perspective on this. As Justice Sandra Day O'Connor said, "We do not count heads before enforcing the First Amendment."