Amicus Curiae Brief — Weintraub v. Board of Education

Supreme Court, U S.

riLED

SEP 1 3 2010

No. 10-202 as a

‘a

IN THE

Supreme Court of the Gnited States

GARY N. WEINTRAUB, AS ADMINISTRATOR OF THE

ESTATE OF DaviD EL. WEINTRAURB,

Petitioner,

wi:

BOARD OF EDUCATION OF THE City SCHOOL DISTRICT

OF THE Crry OF NEW YORK, COMMUNITY SCHOOL

District 32, City oF NEW YORK, DOUGLAS GOODMAN,

DAISY O’GORMAN, FELIX VAZQUEZ, FRANK MILLER,

AIDA SERRANO, LAWRENCE BECKER, AND

JERRY CIOFFI,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Second Circuit

BRIEF OF THE NATIONAL EDUCATION

ASSOCIATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

ALICE O'BRIEN JEREMIAH A. COLLINS

MICHAEL I). SIMPSON Counsel of Record

Puitir A. Hostak BREDHOFF & KAISER, P.L.L.C.

NATIONAL EDUCATION ASSOCIATION 805 15th Street, N.W

Office of General Counsel Washington, D.C. 20005

1201 16th Street, N.W. (202) 842-2600

Suite 820 jcollins@bredhoff.com

Washington, D.C. 20036

(202) 822-7035 Counsel for Amicus Curiae

salad aia

Peake DeLancey Printers, LLC - (301) 341-4600 - Cheverly MD

TABLE OF CONTENTS

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INTEREST OF AMICUS CURIAB................cccccccrereees

STATEMENT ..

SUMMARY OF

PRPC A TPE diasicociuckairtarassccesdentees sevens

ARGUMENT: THE GARCETTI RULE PROPERLY

APPLIES ONLY TO SPEECH THAT CONSTITUTES

THE PERFORMANCE OF JOB DUTIES SUCH

THAT THE EMPLOYER HAD THE RIGHT TO

PRESCRIBE THE CONTENT OF THE SPEECTI IN

THE FIRST PLACE, AND DOES NOT APPLY ‘TO

SPEECH EXPRESSED IN A GRIEVANCE AGAINST

Ss Te as io aip denna ac ceived vedehceacnaciphasdaiaiesitewe G

CONCLUSION

Page

1]

*)

6

i]

TABLE OF AUTHORITIES

CASES

California Motor Transport Co, v. Trucking

LJnlimited. 404 U.S. 508 (1972)

{ ‘entral Hludson Gas & ele "a | OT p / Publi Ser)

Comm’n. 447 U.S. 557 (1980)

Connick v. Myers, 461 U.S. 138 | 1983 )

Kastern R.R. Presidents’ Conference +

Noerr Motor Freight, Inc., 365 U.S. 127 (1961)

First National Bank of Boston v. Bellott

U.S. 765 (1978)

Garcetti vw. Ceballos. 547 U.S. 410 (2006) p

Givkhan v. Western Line Consolidated Sch. Dist.,

139 U.S. 410 (1979)

Pickering v Board of kduc 391 U.S. 563 (1968)

Pleasant Grove City v. Summum U.S

129 S. Ct. 1125 (2009)

Rankin v. McPherson, 483 U.S. 378 (1987)

San Diego v. Roe, 543 U.S. 77 (2004)

[/nited Mine Workers of America v. Pennington

381 U.S. 657 (1965)

Virginia State Bd. Of Pharmacy v. Virginia

Citizens Consumer Council, Inc.,

125 U.S. 748 (1976).

LS

.

ALC

1()

Aili

iil

TABLE OF AUTHORITIES Continued

Page

Williams v. Dallas Indep. Sch. Dist.,

480 F.3d 689 (Sth Cir, 2007) 3.4

LAWS

N.Y. Civil Service Law § 200 (Consol. 2010) y

MISCELLANEOUS

Benjamin Aaron, Procedural Due Process and the

Duty of Fair Representation vn Public Sector

Grievance Disputes, in Labor Relations Lau

in the Public Sector (Andria S. Knapp ed

American Bar Ass'n 1977)

Elkouri & Elkouri, low Arbitration Works

(Oth ed, 2008) ..

Jill Kriesky, Trends in Dispute Resolution in

The Public Sector, in Employment Dispute

Resolution and Worker Rights in the Changing

Workplace (Adrienne EF. Eaton & Jeffrey H. Keefe

eds., Industrial Relations Research Ass'n 1909)

Julius G. Getman, et al., Labor Management

Relations and the Law (Foundation Press

2d ed. 1999) REPRE poy ERS RTE AP

Richard ©. Kearney & David G. Carnevale, Labor

Relations in the Public Sector (Marcel Dekker,

Se 8 Ree eee eas ee

William H. Holley, et al., Zhe Labor Relations

Process (South-Western 9th ed. 2008) ...

INTEREST OF AMICUS CURIAE

This brief amicus curiae is submitted with the consent

of the parties,’ on behalf of the National HEducation

Association (NEA), a nationwide employee organization

with more than 3.2 million members, the vast majority of

whom are employed as teachers in public schools and

colleges throughout the United States. Many of NEA's

members are covered by collective bargaining agree

ments, and many of (hose agreements contain a grievance

procedure

Because NEA’S members have a vital interest in’ the

scope of First Amendment protection of job-related

speech, NEA submitted a brief amicus curiae in Garcetti

», Ceballos, 547 U.S. 410 (2006), in which this Court

addressed the application of the First Amendment to

speech made pursuant to an employee's official duties

and in Connick vo. Myers, 461 U.S. 138 (1983), as well

as In numerous other cases in this Court concerning

the constitutional rights of teachers and other public

employees

This case concerns the application of the teachings of

Connick and Garcetti to speech by a teacher on a matter

of public concern that is voiced through the grievance

procedure of a collective bargaining agreement. Because

many of NEA’s members work under agreements that pro

vide for such procedures, the First Amendment issue in

this case arises in a context of particular significance to

NEA and its members

Letters of consent are on file with the Clerk. No counsel for a

party authored this bnef in whole or in part, and no person or entity

other than amicus curiae made a monetary contribution to the

preparation or submission of this brief

STATEMENT

Most public sector collective bargaiuny agreements con

lain grievance procedures. See Jill Kriesky, Trends on

Dispute Resolution in The Public Sector. in lim ployme vil

Dispute Resolution and Worker Rights in the Changing

Workplace 247, 252 (Adrienne ke. Maton & Jeffrey Hh. Keel

eds., Industrial Relations Research Assn L990) NeW

York's ‘Taylor Law, like many public sector labor relation

Statutes, expressly “encouragies]... pubhe employers and

employee organizations to agree upon procedures for

resolving disputes.” N_Y, ¢ i Service Law ‘00 (Consol

M10)

lypically, a gnevance procedure provides lor a seri

of"steps” in which the employee or the union, on the or

side, and thr employer on the other, lay out ther post

Lions with respect to a dispute, generally in writing, tol

lowed, if the matter is still unresolved, by arbitration

before a neutral arbitrator, whose decision is: typically

final and binding except for a tinmited right to judreial

review Sec, eg Richard ¢ Kearney & David G

Carnevale, Labor Relations in the Public Sector 402.0%

(Marcel Dekker, Ine Oy) | Mlkour & Klkoun, /low

lrhitration Works 210. 213-14. 259 (oth ed. 2003): Williara

ll, Holley, et al., The Labor Relations Process 428-29

(South Western Oth ed. ZOO8): Julius G. Getman, et al

Labor Management Relations and the Law |

(loundation Press 2d ed. 1999)

In the public sector, grievance systems offen allow

employees and untons to raise mot only question

about the interpretation and application of the colle

live bargaining agreement, but also disputes over the

interpretation of statutes, regulations and pole.

SCE, OCY., TOE Aaron, Procedural Due Proce and

the Duty of Fair Representation an Public Sector

CT LCvVaNCE Lisputi S iti Labor helation: Lau ivi bei

4

Indep. Sch. Dist., 480 F.3d 689, 694 cath Cir. 2007), and the

speech had been expressed through “[t]he lodging of a

union grievance [which] is not a form or channel of dis

course available to non-employee citizens,” 7d. at Ida.

In the view of the Second Circuit, this meant that the

speech was “made pursuant to [an] employee's official

duties,” as those words were used in Garcett?, 547 US. at

413. The Second Circuit ignored the fact that Garcetti

involved speech by which an employee “fulfillfed] a

responsibility” of his job, 547 U.S. at 421, and as to which

the employer would have had the right to dictate the con-

tent, whereas in this case, filing a grievance against his

employer was not a responsibility that was placed on

Weintraub by his job duties, nor would the employer have

had any right to dictate what Weintraub should say in

such a grievance.

As the Petition states, the Second Circuit's broad inter

pretation of what constitutes speech “pursuant to” an

employee's official duties for purposes of the Garceit?

rule is consistent with the approach taken by a number of

other circuits, which treat speech that in any way facili-

tates or promotes the performance of an employee's

duties as falling outside First Amendment protection by

virtue of Garcetti; but the decision conflicts with deci-

sions of two circuits which have held that Garcett? denies

protection only to speech that is required by an employ

ee's official duties. See Petition at 7-15. Review should be

granted to resolve that fundamental conflict. And this

case presents a particularly apt vehicle to address the

matter, both because of the prevalence and importance of

public employee grievance systems and because the

Second Circuit's holding compellingly illustrates the con-

stitutionally indefensible results that are being reached

by those Circuits which, like the court below, treat

Garcetti’s “pursuant. to” requirement. as satisfied where

an employee's speech is merely related to, but not. dictat-

ed by, his job duties

SUMMARY OF ARGUMENT

In Garcett? this Court recognized a narrow exception

to the rule that, under the First Amendment, a public

employee who speaks on a matter of public concer may

be subjected to discipline only if the employee's speech

interests are outweighed by “the interest of the State, as

an employer, in promoting the efficiency of the public

services it performs through its employees.” Pickering v.

Board of Edue., 391 U.S. 563, 568 (1968). The exception

recognized by the Court in Garcett? allows a government

employer to discipline an employee for speech with no

First Amendment scrutiny at all in a limited class of

cases: Where the speech was “made pursuant to the

emplovee’s official duties” in the sense that, in speaking,

the employee was “fulfilling a responsibility” of the job,

547 US. at 421, such that the public employer would have

had the right to dictate the content of the employee's

speech in the first place

It is one thing to hold that First Amendment scrutiny

has no place in a case like Garcett?, involving what is in

essence government speech that the government has the

right to prescribe; but it would be quite another thing to

extend Garcetti to speech that merely relates to or facil

tates the public employee's work. And, to apply Garcetti

to speech expressed through a grievance against the gov

ernment, which is at the furthest remove from govern-

ment speech, is to completely unmoor the rule in Garcett?

from its foundations.

Certiorari should be granted to resolve the split in the

circuits over what Garcett? meant by speech “pursuant to

fan] employee's official duties,” and to correct the unwar-

()

ranted extension of Garce?ti that is presented by the deci

sion below.

ARGUMENT: THE GARCETTI RULE PROPERLY

APPLIES ONLY TO SPEECH THAT CONSTITUTES

THE PERFORMANCE OF JOB DUTIES SUCH THAT

THE EMPLOYER HAD THE RIGHT TO PRESCRIBE

THE CONTENT OF THE SPEECH IN THE

FIRST PLACE, AND DOES NOT APPLY TO

SPEECH EXPRESSED IN A GRIEVANCE

AGAINST THE EMPLOYER

A. Pickering and Connick hold that, as a rule, speech

by a public employee on a matter of public concern that

does not. harm legitimate interests of the public employer

may not, consistent with the First Amendment, be made

the subject of discipline. As this Court has recognized,

the First Amendment provides protection to such speech

not only because “a State cannot. condition public

employment on a basis that infringes the employee's con-

stitutionally protected interest in freedom of expression,”

Connick v. Myers, 461 U.S. 138, 142 (1983), but also

because “[public employees, and] [tleachers [in particu-

lar] are, as a class, the members of a community most

likely to have informed and definite opinions” on matters

of public concer related to the operation of government

programs. Garcett?, 547 U.S. at 421, quoting Pickering,

391 US. at. 572. Public employees thus are in a position

to have uniquely “informed opinions on important public

issues,” 7d. at 420, quoting San Diego v. Roe, 543 U.S. 77,

$2 (2004), of which “the community would be deprived . .

. {wJere [public employees] not able to speak on [the

operation of their employers],” 7d.

Accordingly, as to matters of public concern, “expres

sions related to the speaker's job” can qualify for First

Amendment protection against discipline or retaliation,

Garcett?, 547 ULS. at 421, as long as the Pickering balance

{

is satisfied, and that is true whether the employee spoke

to the public or “expressed his views inside his office,

rather than publicly,” 7d. at 420 (citing Givhan v. Western

Line Consol. Sch. Dist., 489 U.S. 410, 414 (1979)). See

also Rankin v. McPherson, 483 U.S. 378, 387 n. 11 (1987)

B. In Garcetti, this Court recognized a limited class of

cases in which the First Amendment provides a public

employee with no protection whatsoever against being dis

ciplined for speech on a matter of public concern, without

regard to Pickering balance. The Court described this

class of cases as those in which discipline is imposed

“based on speech made pursuant to the employee's official!

duties.” Garcetti, 547 U.S. at 413. As the Court explained,

“It]hat consideration” is present if an employee's speech

consisted of “fulfilling a responsibility” of his job, tad. at

42. 1—in Ceballos’ case, “to advise his supervisor about how

best to proceed with a pending case,” id. The speech at

issue in Garcett? was “part of what [Ceballos], as a calen

dar deputy, was employed to do,” ?d.; it constituted an

“official conununication{ },” ?d@. at 4238, which, as the Court

explained, Ceballos’ supervisors could properly insist be

“accurate, demonstrate sound judgment, and promote the

employer's mission,” 7d.

lL. Thus, the “consideration” that constituted the “con

trolling factor in Ceballos’ case,” id. at 421, was not that

his speech “concerned the subject matier of [his] employ

ment,” 7@., which the Court stated was “nondispositive,”

id., or that the subject. matter was related to the “proper ]

executf{ion] [of] his duties,” Pet. App. l2a, which the

Second Circuit in this case regarded as the key consider-

ation. Rather, the “controlling factor,” Garcett?, 547 U.S.

at 421, was that the speech constituted an “official com-

munication” which Ceballos was required to make 77

order to fulfill a responsibility of his position — and one

as to which his superiors would have had the right to dic

5

tate the content. In that limited context, where disciplin

ing an employee for speech amounts to disciplining the

employee for not “performing his or her job duties [prop

erly],” 7d. at 423, the Court reasoned that the fact that the

employee's job duties took the form of speech does not

provide grounds for “mandating judicial oversight of com

munications between and among government employees

and their superiors in the course of official business,” ¢d

)

2. On its facts and in its reasoning, Garce?t? is confined

to situations where an employee's speech is in essence

government speech as to which the government. has ple

nary authority to dictate what. an employee should state

in the first place, and which therefore should not be sub

ject to First Amendment review when the government

decides that the employee's government speech work

product was unsatisfactory. See generally Pleasant

Grove City v. Summum, US. __, 1298S. Ct. 1125, 1131

(2009) (emphasizing government's authority to control its

own expression); 7d. at 1139 (Stevens, J. concurring) (cit

ing Garcetti as an application of the “government speech

doctrine”).

speech in the form of a grievance against a government

employer is the antithesis of government speech. It is

speech that asserts a claim against the government,

through a process in which the employee and the employ

er are expressly cast in the role of adversaries. See supra

at 2. To regard such speech as government speech would

be to say that the government has filed a grievance

against itself. Equally to the point, unlike speech as to

which the public employer would have a right to dictate

the content, such as the disposition memorandum in

Garcett? and similar “official communications,” Garcetti,

947 U.S. at 423, Weintraub’s employer obviously had no

right to tell him what to say in framing and pursuing a

grievance against the employer.

()

As to grievance speech, and other speech in which an

employee is not imparting a message as to which the gov

ernment would have a right to dictate the content, the cat

egorical rule of Garcetti is inapposite. In such a case the

Pickering balance adequately protects “the government's

interest in the effective and efficient fulfillment of its

responsibilities to the public,” Connick, 461 U.S. at. 150,

and the unfettered power to discipline employees for

their speech on matters of public concern that is available

to a public emplover in cases like Garcett? is neither nec

essary nor appropriate.

3. Far from suggesting that its decision should be given

the expansive reading adopted by the Second Circuit and

several of the other Circuits, in Garce?tti this Court took

care to limit the application of the rule in that case to sit-

uations where it has been “demonstrate[d] that conduct

ing the task [that involved the speech for which the

employee was disciplined] is within the scope of the

employee's professional duties for First Amendment pur

poses.” 547 U.S. at 425. What is more, the Garcett? Court

recognized the importance of protecting public employ

ees In giving their uniquely “informed... opinions” about

government operations, 7d. at 419-20; and it is precisely

when public employees are speaking about subjects

closely related to their job duties that they are “the mem-

bers of a community most likely to have informed and

definite opinions” regarding such matters, 7d. at 421

That being the case, to hold that employees’ speech on

matters of public concern may be subjected to discipline

or retaliation without any First Amendment protection

merely because the speech was closely connected to the

employees’ job duties would lead to the very kinds of

“widespread costs” to society, td. at 419, that Garcetti

recognized as a reason why public employees’ speech

related to their jobs should not be readily “repressed,” 7d.

10

1. The court below considered its holding to be “sup-

ported by the fact that |Weintraub’s] speech ultimately

took the form of an employee grievance, for which there

is no relevant citizen analogue.” Pet. App. 13a. This rea-

soning fails on its own terms. Considering that the First

Amendment protects “the right of the people... to peti-

tionthe Government for a redress of grievances,” and that

public employees are among “the people” who have that

right, it is difficult to understand how speech by a public

employee on a matter of public concern that is expressed

as a formal grievance against the government employer is

not sufficiently “citizen-like” to warrant protection. On

the contrary, if one wishes to inventory “speech by citi-

zens who are not government employees,” Garcett?, 547

U.S. 423, in search of a “relevant analogue,” id., to a peti

tion for redress that. is expressed through an empioyee

grievance arbitration system, such analogues are readily

at hand in the form of judicial and administrative proce-

dures invoked by individuals, businesses and other mem-

bers of the polity. Cf. Kastern RR. Presidents’

Conference v. Noerr Motor Freight, Inc., 305 U.S. 127

(1961); United Mine Workers of America v. Pennington,

S81 U.S. 657 (1965); California Motor Transport Co. v.

Trucking Unlimited, 404 U.S. 508 (1972).

Moreover, Garcett? cannot properly be read as calling

for the application of a distinct “citizen analogue” test,

separate and apart from an analysis of whether the

speech in question was uttered “pursuant to ...official

duties,” 457 U.S. at 421. Rather, this Court's reference to

the concept of a “relevant analogue to speech by citizens

who are not government employees” was part of a discus-

sion of “the theoretical underpinnings of” the Court’s case

law in this area, and it was presented as a further expla-

nation of why speech “pursuant. to official duties” is not

protected:

1]

Employees who make public statements outside the

course of performing their official duties retain some

possibility of First Amendment protection because that

is the kind of activity engaged in by citizens who do not

work for the government. .... When a public employ

ee speaks pursuant to employment responsibilities,

however, there is no relevant analogue to speech by cit

izens who are not government employees.

ld. at 423-24. In its context, this passage makes clear that

the concept of a “relevant analogue to speech by citizens

who are not public employees” is not a separate First

Amendment requirement, but rather an aid to under

standing why speech pursuant to official duties is not pro

tected against discipline.

It thus is clear that nothing in Garcetti calls for a mech

anistic “citizen analogue” test such as the court below

applied. It cannot be the case that, as the court below

assumed, Pet. App. 14, speech by a public employee will

be unprotected merely because the precise mechanism

by which the employee conveyed that speech is one that

is not available to all other citizens. After all, as the dis-

sent below recognized, the teacher in Givkan had access

to speak to the school principal in a way “that. a regular

citizen likely could not [have],” Pet. App. 20a, but her

speech was no less protected for that fact

’ Furthermore, an overly literal application of any “citizen speech”

requirement would be at odds with fundamental principles of this

Court's First Amendment jurisprudence. For example, corporations,

unlike public employees, are not citizens at all; but in First National

Bank of Boston v. Bellotti, 435 U.S. 765 (1978), this court, recogniz

ing that a speaker need not be speaking in any particular capacity in

order to be engaging in “expression that the First Amendment was

meant to protect,” id. at 776, held that the First Amendment protects

a corporation speaking as a corporation. Similarly, a business entity

As a rule, speech by a public employee on a matter of

public concem relating to his job is “expression that the

first Amendment was meant to protect,” First National

Bank of Bellotti, supra note 2, 435 U.S. at 776, particu

larly when it is based on knowledge about government

operations that the employee’s job makes him uniquely

qualified to obtain. See supra at 9. As Garcetti recog

nizes, that principle does not apply where the employee is

speaking as part of his job such that the government has

the right to dictate the message. But Garcett?’s reasoning

cannot be extended to cases where, in the speech at

issue, the employee was nol tasked with delivering the

government's message, but was conveying his own opin

ion in circumstances where he was free to do so. An

employee's pursuit of a grievance against a government

employer is a paradigmatic example of the latter catego

ry of case. In equating this with the very different situa-

tion that is the subject of the Garcetti rule, the Second

Circuit cut the rule away from its underpinnings and

reached a result that is at war with basic First

Amendment principles.

CONCLUSION

The petition for a writ of certiorari should be granted

that merely proposes a commercial transaction is not easily charac

terized as speaking “as a citizen,” see, e.g., Virginia State Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S

748, 761 (1976), but such commercial speech is protected by the First

Amendment against regulation that is not shown to serve a sufficient

governmental purpose, see Central Hudson Gas & Elec. Corp wv

Public Serv. Comm'n, 447 U.S. 557 (1980)

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