I'm now conformable making this statement: Garcetti expressly overruled the spirit of Pickering.
Consider this from Pickering:
However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members' own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system ... cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.
And this from Garcetti:
Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission... If Ceballos' superiors thought his memo was ... misguided, they had the authority to take proper corrective action.
What's fundamentally different is how the Court views the employer. In Pickering the Court found that the public interest in schooling is determined not by the Board of Education, but by the court of public opinion ... manifested in our democratic structures. The Court in Garcetti takes exactly the opposite view equating the employer with the public interest. The school board's opinion is the only manifestation of the public interest that matters and all others are subservient or possibly threatening to this public interest. Using Pickering's quote above ... "cannot [YES IT CAN] reasonably be regarded as per say detrimental to the district's schools." In this way, Garcetti directly overrules the spirit of Pickering.
In many ways Garcetti shows a fundamental mistrust in the structures of democracy that compensate for dissonance. Consider this:
Ceballos' proposed contrary rule, adopted by the Court of Appeals, would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. This displacement of managerial discretion by judicial supervision finds no support in our precedents.
Yes it does. Pickering, in the above quote, just said it was comfortable with that and is comfortable with the idea that the public, through the democratic structures, which include but are not limited to the court system, will find a way to resolve it. Sometimes it was ignoring teacher speech. Sometimes it was other teachers helping to control it through social means. Sometimes it was principals sitting down with a teacher behind closed doors. Sometimes it was the PTA acknowledging but not acting on concerns. Sometimes it was firing the teacher on other grounds. Sometimes it was the Union getting involved. And, yes, sometimes it even hit the Court system (although in no way can we say the Courts were overrun following Pickering). But sometimes, and maybe even relatively few times, the expression actually changed something.
Democracy is messy. Democracy is rightfully messy. It has to be messy - you have to be willing to throw thousands of ideas at a wall in the hope that just one will stick. You have to trust our teachers. You have to trust our administrators. You have to trust our communities. You have to trust our Courts.
Pickering trusted democracy. Garcetti didn't.
This post is part of the Scholarly Series on Garcetti and Schools.