# Amicus Curiae Brief — Weintraub v. Board of Education > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2351%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2010 - **Citation:** 562 U.S. 995 ## Text 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 TR IE BALE Cee Fe vacate cdicsedssnpscatbsnrasioviaoaipes 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) EL D A. He It, of Ge loth $ QOL) norto A v¥ DHOFF & Ka l5th Street shington, D .) 842-2600 N) VA --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2351%3A5. Public record. Not legal advice.