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Patrick Bigsby is a student, employee, and wrestling fan at the University of Iowa. Sometimes, he tweets.
Disclaimer: This column is not intended as legal advice regarding specific situations, nor is any attorney-client relationship created herein. If you have questions about your individual situation, please consult an attorney in your jurisdiction.
Graduate student employees serve many masters. Teaching assistants have classrooms full of students counting on them. Research assistants devote themselves to endless experiments. But beyond our advisors and dissertations, graduate student employees at public universities serve one additional master: the government. If you work for a public university, it might seem strange to lump yourself in with dog catchers, drone pilots, and the zillions of other municipal, state, and federal job titles. But, from Montana State-Northern to Georgia Southern, every public pupil with a paying post is a government employee. Unfortunately, like all other government workers, we public university employees do not have the same First Amendment rights of the general public.
While this may be jarring to read, it is entirely true. Sure, the First Amendment restricts the government’s ability to exercise editorial control over a person’s speech and, sure, we the people (even we the public workforce) have an interest in being able to express ourselves. But, like any other employer, the government has an interest in maintaining a functioning workplace, complete with competent, non-disruptive employees. Political expression is of particular value. “A major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,” wrote Justice Hugo Black. Mills v. State of Ala., 384 U.S. 214, 218 (1966). Obviously, graduate student employees have a significant stake in certain governmental affairs, such as their institution’s policies and management. How then, can we speak on these matters without jeopardizing our status as productive workplace contributors? Can legitimate political advocacy ever be separated from generic office gripes when you work for the government?
Fortunately, the U.S. Supreme Court gave us some hints. In 1964, a schoolteacher named Marvin Pickering wrote a letter to the editor of his local newspaper criticizing the fiscal decisions made the superintendent and school board in the district where we worked. Pickering was fired but, like any good American, he sued. Justice Thurgood Marshall was not amused by the personnel decisions of Township High School District 205, writing in 1968 that “in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” In other words, Pickering hadn’t forfeited his First Amendment rights simply by working for the government. In explaining his decision, Marshall created a checklist for government employees. By heeding these criteria, you can rail against your local Board of Regents without worrying about a pink slip.
1. Speak, or attempt to speak, as a member of the general public. Pickering wrote a letter to the newspaper – a means of communication available to anyone with a stamp. Similarly, anyone can stand on a sidewalk, buy a billboard, or have a Facebook profile. If you circulate your message in an intraoffice memo or post it in the staff-only break room, you’re using a medium unavailable to the general public.
2. Speak on a matter of public concern, not mere internal operations. The financial woes of the Lockport, Illinois schools concerned every taxpayer in town – including Pickering. The budget crisis or the hiring policies at your university are also of great public interest. Your department’s casual Friday policy? Not so much.
3. Don’t defame anyone. Defamation is a complex area of the law but suffice it to say that any speech that meets the legal definition of defamation at the threshold required by the classification of the defamed party will fall outside First Amendment protection. Any speech ordinarily unprotected by the First Amendment remains unprotected when uttered by a public employee.
4. Don’t let your speech interfere with your job duties or cause any extraordinary workplace disruption. Pickering wrote his letter at home, on his own time. He still showed up to school on time, still held class, and still graded his students’ essays. The government has an interest in a productive workplace; if your speech keeps you from being an effective employee, then that interest is directly implicated.
Though it might seem easier to just keep your criticisms and advocacy to yourself, we employees are uniquely positioned to contribute to the discussion surrounding public universities. Justice Marshall observed this with respect to Pickering: “Teachers are, as a class, the members of a community most likely to have informed and definitive opinions as to how funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, 391 U.S. 563, 572 (1968). Pickering, as a teacher, could illuminate the discussion of the school district based on his insider observations. Soldiers bring a necessary perspective to discussions on military policy – one that no civilian can replicate. Similarly, graduate student employees at public universities also have insight into government affairs informed by experience. So, do Justice Marshall proud: remember your Pickering rules and speak up!
Public workers of the world: ever had to express your views on government affairs? Tell us about it in the comments!
