Weintraub v. Board of Educ. of City of New York

CALABRESI, Circuit Judge,

dissenting:

Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006), lends itself to multiple interpretations, and the majority’s decision to construe it broadly (and, concomitantly, to construe public employees’ First Amendment protections narrowly), while a possible reading, is not compelled by anything in the Supreme Court’s opinion. Because I think a less expansive definition of speech made “pursuant to ... official duties,” id. at 421 , 126 S.Ct. 1951 , is both a more appropriate reading of Garcetti and a more constructive resolution of the “delicate balancing” required by the First Amendment in the public employment context, id. at 423 , 126 S.Ct. 1951 ,1 respectfully dissent.

As I read the majority opinion, it holds that a public employee’s speech is “pursuant to official duties” and accordingly unprotected when it both (a) is “in furtherance of’ the employee’s “core duties,” and (b) “ha[s] no relevant analogue to citizen speech.” Maj. Op. at 198. To be sure, Garcetti contains some language that can be read along these lines. But Garcetti leaves open the definition of “pursuant to official duties,” and I do not think that the majority’s two requirements, either separately or in combination, provide the right doctrinal framework for analyzing that question. 1

The majority’s first prong, which looks to whether speech is “in furtherance of’ an employee’s “core duties,” seems to me too broad. The majority’s discussion could be read to imply that—assuming the second prong of the majority’s test is also satisfied—classroom teachers receive no First Amendment protection anytime they speak on matters that implicate anything that is “an indispensable prerequisite to effective teaching and classroom learning.” Maj. Op. at 203. But the prerequisites for effective learning are broad and contentious; everything from a healthy diet to a two- *206 parent family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as “in furtherance of’ the core duty of encouraging effective teaching and learning. The line-drawing this entails is necessarily subjective and provides little certainty to the employers and employees who must structure their behavior around our law. Is speech regarding, say, a teacher’s concerns about a student’s misconduct outside the classroom “in furtherance of’ the teacher’s core duty of maintaining class discipline? What of a teacher who discovers that a student is the victim of domestic abuse, which is affecting the student’s classroom performance, and brings his concerns to the administration’s attention? The majority’s elaboration of Garcetti provides no administrable standards for analyzing such cases, and as such poorly serves not only the courts and juries that will hear future cases but also the parties who look to us for legal guidance.

The majority’s second prong, which asks whether there is a “relevant citizen analogue” to Weintraub’s speech, Maj. Op. at 203, is also a plausible interpretation of Garcetti , but I am not convinced that it is the right one. I do not read Garcetti’s discussion of “analogue[s] to speech by citizens who are government employees,” Garcetti 547 U.S. at 424 , 126 S.Ct. 1951 , to set out a doctrinal requirement. Rather, the Supreme Court was expounding upon “the theoretical underpinnings of [its] decisions.” Id. at 423 , 126 S.Ct. 1951 . That is, it was explaining why speech that is “pursuant to employment responsibilities,” id. at 424 , 126 S.Ct. 1951 , is unprotected, not defining that category of speech.

The idea that the existence of citizen analogues is a prerequisite for suit seems contradicted by Garcetti’s statement that the fact that a public employee “expressed his views inside his office, rather than publicly, is not dispositive.” Id. at 420 , 126 S.Ct. 1951 ; accord Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 , 99 S.Ct. 693 , 58 L.Ed.2d 619 (1979) (“[The Supreme] Court’s decisions ... do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.”). A “citizen analogue” inquiry will often replicate the private/public distinction that the Supreme Court has disavowed. The majority’s analysis illustrates this problem, noting that “[r]ather than voicing his grievance, through channels available to citizens generally, Weintraub made an internal communication pursuant to an existing dispute-resolution policy established by his employer.” Maj. Op. at 204. 2 The Supreme Court has made clear that not all internal speech is unprotected, see Garcetti, 547 U.S. at 420, 126 S.Ct. 1951 , and accordingly some speech that is not “through channels available to citizens at large” must be free from retaliation.

Even when read together, the majority’s two prongs permit readings that would allow retaliation against much speech that seems to me to require protection and to remain protected after Garcetti . This sits uneasily with the Supreme Court’s repeated assertion that “the members of a community most likely to have informed and definite opinions” about an issue must “be able to speak out freely on such ques *207 tions without fear of retaliatory dismissal.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563, 572 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968); accord Garcetti, 547 U.S. at 421 , 126 S.Ct. 1951 . Consider Givhan, for example. In Givhan, a junior-high teacher had privately requested that the school principal make a number of administrative changes, all of which “reflect[ed] Givhan’s concern as to the impressions on black students of the respective roles of whites and blacks in the school environment.” Ayers v. W. Line Consol. Sch. Dist., 555 F.2d 1309 , 1313 (5th Cir.1977). Writing for a unanimous Supreme Court, then-justice Rehnquist wrote that Givhan’s speech was protected even though it consisted of a private, internal communication and even though the principal was a willing recipient of her speech. See Givhan, 439 U.S. at 415-16 . Would Givhan come out the same way under the majority’s framework? Givhan’s speech concerned her students’ opinions on the school’s handling of racial issues, a matter that has serious pedagogical implications. Accordingly, it could be described as a “means to fulfill ... [his] primary employment responsibility of teaching,” and, thereby, as an effort to further her core duty of “effective teaching.” Maj. Op. at 203 (internal quotation marks and citations omitted); cf. id. at 202 (citing Renken v. Gregory, 541 F.3d 769, 773 (7th Cir.2008), for the proposition that any actions taken “for the benefit of students” and that “aid[ ] in the fulfillment of ... teaching responsibilities” are within a teachers’ duties). And it certainly was a private communication to a willing audience that a regular citizen likely could not access in the same way. As a result, I fear that some courts will conclude that speech like Givhan’s would fail both prongs of the majority’s test. But Garcetti specifically reaffirmed Givhan. See Garcetti, 547 U.S. at 420-21 , 126 S.Ct. 1951 . 3

Furthermore, the pragmatic concerns motivating Garcetti do not support such an expansive reading. Garcetti recognized the need for employers to have the freedom to “ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.” Id. at 422-23 , 126 S.Ct. 1951 . When an employee is engaged in speech that the “employer itself has commissioned or created,” id. at 422 , 126 S.Ct. 1951 , then the employee is acting as an agent or a mouthpiece of the employer, and the employer must have a substantial degree of control over the employee’s execution of his responsibilities. If an employer could not discipline or fire an employee for the substance of his work product, the employer would be all but unable to function.

By contrast, when an employee’s speech is not part of the implementation of the employer’s business operations, the employer does not depend on “substantive consistency and clarity,” id. at 422 , 126 S.Ct. 1951 , in that speech. Instead, employers may well benefit from a narrowly defined exception to First Amendment protection, for an exemption that sweeps more broadly than necessary will likely encourage employees to make complaints publicly when they might otherwise be handled internally. See id at 424, 126 S.Ct. 1951 (“Giving employees an internal *208 forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.”). 4

I would hold the scope of Garcetti to be coextensive with its prime concerns and to go no further. An employee’s speech is “pursuant to official duties” when the employee is required to make such speech in the course of fulfilling his job duties. This necessitates a “practical” inquiry into each plaintiffs job duties. See id. at 424 , 126 S.Ct. 1951 ; see also Marable v. Nitchman, 511 F.3d 924, 932-33 (9th Cir.2007). I do not mean to suggest that speech must be explicitly envisioned in a job description or specifically requested by the employer; on this point I agree with the majority. See Maj. Op. at 203. (“[Sjpeech can be ‘pursuant to’ a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.”). But it must be possible to say that the employer has “commissioned or created” the speech, Garcetti, 547 U.S. at 422 , 126 S.Ct. 1951—that the employer in some way relies on the speech made by the employee, as where the speech is an “official communications” or is used by the employer to “promote the employer’s mission,” id. at 423 , 126 S.Ct. 1951 .

In Garcetti , for example, the plaintiff Richard Ceballos’s responsibilities as a calendar deputy called for him “to advise his supervisor about how best to proceed with ... pending case[s].” Id. at 421 , 126 S.Ct. 1951 . The speech at issue involved a memo recommending that a case assigned to Ceballos be dismissed, which Ceballos was not authorized to do without his supervisor’s approval. Brief of Petitioner at 4, Garcetti, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006). The memo that Ceballos wrote was not merely related to his job duties, but rather it was the very thing he was paid by the Los Angeles County District Attorney’s Office to do. Without Ceballos’s competent advice and input, his employer could not function anywhere near as well. His employer therefore had a need to supervise the quality and content of that speech, and was entitled to discipline him accordingly.

As far as the record reflects, Appellees here did not in any way depend on Weintraub bringing union grievances or refraining from bringing them (subject, of course, to the requirement that speech not “disrupt] the workplace,” Cioffi v. Averill Park Cent. Sch. Disk Bd. of Educ., 444 F.3d 158 , 162 (2d Cir.2006)). He may well have been in a position to file a grievance only because of his official duties, and the subject matter of that grievance may have had the potential to further those duties, but neither of these facts establishes that he filed his grievance pursuant to his official duties.

In the present posture of the case, I take it as a given that Weintraub’s duties entailed informing the school administration of violent incidents, such as those at the root of this case, as a means of facilitating the school’s disciplinary apparatus. This justifies the District Court’s holding that Weintraub’s comments to his supervisor were not protected. 5 But grieving the administration’s response through his union is quite another matter. And neither *209 the Appellees nor the majority direct us to any evidence that such a response was in any way required of Weintraub. It is possible that the union grievance was an official part of a process by which employees brought subjects of concern to Appellees’ attention, facilitating corrective action; if this were the case, then Weintraub’s grievance might be pursuant to his official duties and exempt from First Amendment protection. 6 But on the record before us, there is no reason to think this is so. 7

For these reasons, I respectfully dissent.

. I do not share the majority’s belief that the Supreme Court " 'narrowed [its] jurisprudence in the area of employee speech’ ” in Garcetti . Maj. Op. at 201 (quoting Reilly v. City of Atl. City, 532 F.3d 216, 228 (3d Cir.2008)). Garcetti did not overturn or even call into question any of the Court's prior precedents on employee speech; indeed, it specifically reaffirmed or cited approvingly many of the precedents that the majority opinion suggests were "narrowed.” See, e.g., Garcetti, 547 U.S. at 417, 419, 420 , 126 S.Ct. 1951 .

. Additionally, the description of Weintraub's union complaint as an "internal communication” seems dubious. The Union Federation of Teachers is an external body, even if the union representative through whom Weintraub directed his complaint was presumably an employee of the Appellees.

. I recognize and greatly appreciate the majority’s analysis of why its two-prong test is consistent with Givhan, and why Givhan is distinguishable from the case before us. But if Givhan survives it is because the two-pronged test the majority employs is not in fact the end of the matter. For that reason, I discuss Givhan primarily to illustrate why I believe that the test outlined today does not suffice to differentiate protected and unprotected speech.

. On this point, both the majority and at least one of the dissenters in Garcetti were in agreement. See Garcetti, 547 U.S. at 427 , 126 S.Ct. 1951 (Stevens, J., dissenting) ("[I]t seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”).

. Because Weintraub does not appeal this part of the District Court’s holding, we need not consider it in any detail.

. As a general matter, I doubt that most employers would view union activity as something that their employees do for the employer’s benefit. There is a distinct irony in the idea that unions, which so many employers seek to exclude from the workplace, are somehow transmuted into entities that "promote the employer's mission,” Garcetti, 547 U.S. at 423 , 126 S.Ct. 1951 , for purposes of the First Amendment.

. If nothing else, this presents a question that should be explored on remand or put before a jury. It should not be disposed of on summary judgment without further inquiry. This is exactly what the Ninth Circuit did in Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006), upon which the majority relies. Freitag found that a first level of internal forms filed by a corrections officer about inmate misconduct was unprotected, as the officer was "required as a part of her official duties to report inmate misconduct and to pursue appropriate discipline,” but it also remanded the case to the district court "for a determination of whether prison guards are expected to air their complaints regarding prison conditions all the way up to the CDCR director.” Marable, 511 F.3d at 932 ; see also Freitag, 468 F.3d at 546 . I agree with the majority that Freitag provides a good model for the case before us—but I do not believe that it supports the majority's conclusion.