Supreme Court narrows free speech for public employees

Right now, all across the country, there are teachers, principals, and public school administrators who are wrestling with their consciences. Do they stick their necks out, risk being fired or demoted or placed in some dingy backwater, and talk about what is going on in public schools under No Child Left Behind? Or do they bite their tongues and hope that things will get better?

The Supreme Court yesterday added its chilly voice to the mix: the First Amendment does not apply to speech for public employees when they speak as employees about job-related matters of public concern. In its defense, Justice Kennedy, writing for the majority, said, “Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”

Some relief. “Once you have drawn this kind of distinction, which ostensibly runs across the whole gamut of a public employee’s speech, and having merely hinted that academic speakers and therefore academic freedom may somehow be different, creates only a slim reed on which to hang a public university professor’s desire to speak out,” said Robert M. O’Neil, director of the Thomas Jefferson Center and a professor of law at the University of Virginia.

O’Neil suggested that by seeming to grant First Amendment protection to speech that is not directly related to an employee’s work but not to speech that is job-related, the court has created a situation in which “the degree in protection varies inversely with the speaker’s expertise and with the potential value to society and the government of having the benefit of such speech.” According to Inside Higher Education, "Under this scenario, a chemist or philosopher who testified at a state legislative hearing by criticizing a plan to restructure the state’s community college system would be protected by the First Amendment, but a political scientist who is an expert on community college governance might not."

Under this ruling, a public school teacher -- an expert on teaching and learning -- might not have his/her comments about No Child Left Behind protected under the First Amendment, either.

“Up to this point, it has (been) assumed that academic speech, particularly within a professor’s field of expertise, would be First Amendment protected,” O’Neil said. “But I’m going to have to say now that you’d better not count on it.”

Story at http://insidehighered.com/news/2006/05/31/supreme