Labor & Employment Law

Teacher's blog caused a disruption resulting in no First Amendment protection

Richerson v. Beckon, 2009 U.S. App. Lexis 12870 (9th Cir. June 16, 2009), is an important decision. A teacher alleged that she was involuntarily and unconstitutionally transferred in retaliation for an entry she made on her personal blog. Because of her blog entry, other teachers did not want to work with her. The court held that this was a sufficient disruption under Pickering.* As the court explained:

It is undisputed that the positions from which Richerson was transferred required that she enter into trusting mentor relationships with other, less experienced teachers in order for her to give honest, critical, and private feedback.Richerson?s publicly-available blog included several highly personal and vituperative comments about her employers, union representatives, and fellow teachers. Although Richerson did not refer to these individuals by name, many were easily identifiable by the description of their positions or their personal attributes. When this blog came to light, Beckon received several complaints from teachers and other employees of the District, including at least one person to whom Richerson was assigned as an ?instructional coach? who thereafter refused to work with her. Beckon then transferred Richerson on the ground that her blog had fatally undermined her ability to enter into trusting relationships as an instructional coach.

That a public employee?s speech touches on matters of public concern is a ?necessary, but not a sufficient condition of constitutional protection.? Brewster v.Bd. of Educ., 149 F.3d 971, 979 (9th Cir. 1998). Richerson?s speech and Beckon?s response are subject to the Pickering balancing test, which includes at least five factors. See Fazio v. City & County of San Francisco, 125 F.3d 1328, 1331 n.1 (9th Cir. 1997).

Particularly relevant to Richerson?s case are the considerations of whether her speech ?disrupt[ed] co-worker relations,? ?erode[d] a close working relationship premised on personal loyalty and confidentiality,? or ?interfere[d] with the speaker?s performance of her or his duties.? Id.It is abundantly clear from undisputed evidence in the record that Richerson?s speech had a significantly deleterious effect in each of these ways.

Beckon provided testimony, not controverted by Richerson, indicating that several individuals refused to work with Richerson in the future. Common sense indicates that few teachers would expect that they could enter into a confidential and trusting relationship with Richerson after reading her blog. Beckon need only make a ?reasonable prediction? that such disruption would occur; she need not demonstrate that it has occurred or will occur to a certainty. See Brewster, 149 F.3d at 979. This standard was clearly met. See Connick v. Myers, 461 U.S. 138, 151-52 (1983) (?When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer?s judgment is appropriate.?).

Accordingly, the district court did not err in concluding that the legitimate administrative interests of the School District outweighed Richerson?s First Amendment interests in not being transferred because of her speech.

Mitchell H. Rubinstein

*NYPPL Comments: Essentially the "Pickering Balancing Test? [Pickering v Board of Education, 391 US 563] requires the court?s consideration of the following:

1. Did the individual demonstrate that his or her speech address a matter or matters of public interest and concern?

2. Did the individual demonstrate that his or her speech was a significant or motivating factor in the employer's decision?

3. Did the court balance the interests of the individual commenting on matters of public concern as a citizen and the public employer's interest in "promoting the efficiency of public service?"

In Council 82, v State of New York, 255 A.D.2d 54, aff'd. 94 NY2d at 329, New York courts held that a Department?s rule does not trump an employee?s First Amendment rights. An arbitrator found that Edward Kuhnel, a state correction officer, was not guilty of disciplinary charges alleging that he flew a Nazi flag from the front porch of his home in violation of Department rules.
These court decisions sustained the arbitrator's decision, citing Pickering among other decisions.

Full post as published by New York Public Personnel Law on June 24, 2009 (boomark / email).