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.