Freedom of Speech in USA
for Professors and
Other Government Employees

Copyright 2000 by Ronald B. Standler

Table of Contents

Pickering's progeny:
          Perry v. Sindermann
          Mt. Healthy City Board of Education v. Doyle
          Givhan v. Western Line Consolidated School District
Connick v. Myers
Post-Myers cases:
          Waters v. Churchill
          Board v. Umbehr
Application to Professors


I have written a series of three essays on employment law as it applies to professors:
  1. In my essay on academic freedom in the USA, I argued that the legal concept of academic freedom in the USA was mostly an illusion.

  2. The essay that you are now reading continues the theme of the above essay: first by reviewing the U.S. Supreme Court cases involving freedom of speech of government employees, then by discussing a few cases in lower federal courts involving university professors. These cases contain the official interpretation of the First Amendment to the U.S. Constitution.

    The First Amendment to the U.S. Constitution only provides for freedom of speech against regulation by the federal or state government (e.g., a state university). A private employer (e.g., a private university) has no legal requirement to honor the First Amendment. Therefore, the law discussed in this essay only applies to professors in state universities, teachers in public schools, and other professionals who are employed by a state or federal government.

  3. The next essay in this series contains a review of cases under state law involving wrongful termination of employment of a learned professional, because he/she chose to follow an ethical principle of his/her profession, instead of his/her manager's direction.

This essay is intended only to present general information about an interesting topic in law and is not legal advice for your specific problem. See my disclaimer.

I list the cases in chronological order in the citations in this essay, so the reader can easily follow the historical development of a national phenomenon. If I were writing a legal brief, I would use the conventional citation order given in the Bluebook.


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

Pickering was a teacher in an Illinois High School who wrote a letter to a local newspaper criticizing how the Board of Education had spent tax money on athletic facilities instead of education, and also criticizing the way the school administration was conducting a current proposal to increase the tax rate to support public schools. When Pickering's letter was published in the newspaper, the Board of Education terminated Pickering's employment. State courts in Illinois upheld the Board of Education's action, but the U.S. Supreme Court found that Pickering's right to freedom of speech was violated and reversed the decision of the Illinois Supreme Court.

The issue in this case is whether Pickering – as an employee – has a duty to support management's decisions, or whether Pickering – as a citizen – may freely speak on a current political issue. 391 U.S. at 568. The U.S. Supreme Court considered the balance between these two disparate interests. Because the raising and expenditure of tax money "is a matter of legitimate public concern", the U.S. Supreme Court upheld Pickering's right to freedom of speech. 391 U.S. at 571.

The opinion in Pickering lists several intertwined factors that judges are to consider during this balancing test:
  1. Are "the statements ... directed towards any person with whom [plaintiff] would normally be in contact in the course of his daily work as a teacher"? The Court mentioned that "personal loyalty and confidence" are necessary for "close working relationships", but not for the relationship between teacher and either the Board of Education or the superintendent of the schools. 391 U.S. at 569-570, also n.3.

  2. Is there an issue of "maintaining either discipline by immediate supervisors or harmony among coworkers"? 391 U.S. at 570.

  3. Did plaintiff's statement's have a "detrimental" effect or impact on the "actual operation of the schools"? 391 U.S. at 570-571, 573, also n.1 at 580.

  4. Is the issue on which plaintiff spoke "a matter of legitimate public concern"? 391 U.S. at 571. "This Court has also indicated ... that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors." [citations omitted] 391 U.S. at 574.

  5. Did plaintiff's public statements "impede the teacher's proper performance of his daily duties in the classroom"? 391 U.S. at 572-573, also n.5.

  6. Did the plaintiff's speech include "false statements knowingly or recklessly made by him"? 391 U.S. at 569, 573-574 (citing the libel standard in New York Times v. Sullivan, 376 U.S. 254 (1964) and its progeny).

  7. Not mentioned in Pickering, but mentioned in later cases, is the issue of the time, manner, and place of plaintiff's speech. Givhan v. Western Line Con.Sch.Dist.,439 U.S. 410, 415, n.4 (1979); Connick v. Myers, 461 U.S. 138, 153 (1983)("Employee speech which transpires entirely on the employee's own time, and in non-work areas of the office," was more worthy of protection than speech in the office.).

I note in passing that the opinion in Pickering is not well organized. The list of factors to consider are stated in a better organized way in several opinions of U.S. Court of Appeals subsequent to Pickering. For example, see Clark v. Holmes, 474 F.2d 928, 931 (7thCir.1972), cert. den., 411 U.S. 972 (1973).

The Court in Pickering acknowledged the obvious, when it declared: "the threat of dismissal from public employment is ... a potent means of inhibiting speech." 391 U.S. at 574.

There are two paragraphs in Pickering that are worth quoting here:
  More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite 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, 391 U.S. at 571-572.

The final paragraph of the opinion of the Court says:
  In sum, we hold 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. Since no such showing has been made in this case regarding appellant's letter, ... his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Pickering, 391 U.S. at 574-575. [footnote omitted]

While it is irrelevant to most of the legal issues here, I think it is important to note that "Pickering's letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief." 391 U.S. at 570. In other words, Pickering's brave stand had absolutely no effect, except to get himself fired and to make a significant U.S. Supreme Court opinion that upheld freedom of speech.

Pickering's progeny

Perry v. Sindermann, 408 U.S. 593 (1972).

Sindermann was a professor at a junior college in Texas, who like all other professors there, was employed in a sequence of one-year contracts. When Sindermann testified before committees of the Texas Legislature, and expressed opinions contrary to the position of the Board of Regents, the Board of Regents voted not to renew Sindermann's contract. Further, the Board gave no official reason for their decision not to Sindermann's contract.

The District Court granted summary judgment for the Board of Regents, but the Court of Appeals reversed. 430 F.2d 939. The Board of Regents then appealed to the U.S. Supreme Court, who affirmed the Court of Appeals. As a result, Sindermann would at least receive an official reason for his dismissal and a hearing at which he could challenge those reasons.

The Supreme Court only discussed the procedural due process aspect of this case (not the freedom of speech aspect), because the District Court had dismissed Sindermann's claims without conducting a trial and without hearing evidence.

Sindermann is conventionally viewed as a tenure case, in which the U.S. Supreme Court held that a professor at a junior college without a formal tenure system had a legally protected "property interest" in continual renewal of his employment contract, because of custom on the campus and statements in the faculty handbook, which was an implied contract.

Sindermann should be read together with the companion tenure case heard by the U.S. Supreme Court, Board of Regents v. Roth, 408 U.S. 564 (1972).

Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977).

Doyle was an untenured teacher in public schools in Ohio whose contract was not renewed, according to a letter from the Board to him, because:
  1. He called a local radio station, and mentioned the contents of a memorandum from the administration that established a dress code for teachers. The radio station reported this memo as a news item.
  2. He made an obscene gesture to two female students who disobeyed him in the cafeteria.
Id. at 281-283 and n.1.
The District Court held that Doyle's communication
to the radio station was "clearly protected by the First Amendment," and that because it had played a "substantial part" in the decision of the Board not to renew Doyle's employment, he was entitled to reinstatement with backpay.
Id. at 283.
The Court of Appeals, in an unpublished per curiam opinion, affirmed the District Court's unpublished decision. 529 F.2d 524.   Apparently, both the District Court and Court of Appeals saw this case as unremarkable and routine.

The U.S. Supreme Court stated:
There is no suggestion by the Board that Doyle violated any established policy, or that its reaction to his communication to the radio station was anything more than an ad hoc response to Doyle's action in making the memorandum public. We therefore accept the District Court's finding that the communication was protected by the First and Fourteenth Amendments. We are not, however, entirely in agreement with that court's manner of reasoning from this finding to the conclusion that Doyle is entitled to reinstatement with backpay.
429 U.S. at 284.

The Board mentioned at trial a long list of other alleged misconduct by Doyle. The Board asserted that this other misconduct, while not mentioned in the dismissal letter given to Doyle, justified its decision. Further complicating the case, Doyle had been President of the Teacher's Association, where he engaged in direct negotiations with the Board of Education, and he apparently irritated the Board.

The U.S. Supreme Court held that the Board could lawfully discharge Doyle if the Board could show "by a preponderance of the evidence that it would have reached the same decision ... even in the absence of the [plaintiff's constitutionally] protected conduct." Id. at 287.

Sometimes, what is not said in the opinion of the Court is more important than what is said. That seems to be the case here. There is nothing in the Supreme Court's opinion about Doyle's performance as a teacher – nothing about whether his pupils learned anything from him. And this silence says clearly that Doyle was hired to teach, but fired only because he irritated the Board of Education.

After the U.S. Supreme Court rendered its opinion, the case was remanded to the District Court, which found that the Board would not have renewed Doyle's contract even if the incident with the radio station had not occurred. Doyle then appealed again, and the Court of Appeals found the District Court's finding of fact was not "clearly erroneous", thus the Court of Appeals affirmed the District Court. The case was finally over, eleven years after Doyle was fired. In this last appeal, the Court of Appeals made a terse observation, in passing, that "while ... Doyle had some fine qualities as a teacher, he also had a quick temper." 670 F.2d 59, 61 (1982).

The effect of Mt. Healthy is to make it more difficult for employees to win in court after their freedom of speech, or academic freedom, has been violated by managers. Most employees make a few mistakes along the way, that can be used – after the fact – by managers to "justify" a decision not to rehire these employees.

Justice Rehnquist, writing for the Court, stated that "constitutionally protected conduct" should not be used to continue the employment of "a borderline or marginal candidate". Id. at 286. I believe that better law would be for the Court to declare that abuse of civil liberties by managers would mandate that those managers tolerate even offensive employees, a result that would encourage managers to respect civil liberties. Further, the reason(s) for nonrenewal of an employment contract given in the letter to the employee at the time of nonrenewal should be conclusively presumed to be the true reason(s) for the employer's decision. The employer should not be permitted to assert later, in litigation for wrongful discharge, that there were other reasons.

Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979).

Western Line Consolidated School District, located in Mississippi, was the subject of court-ordered desegregation. Givhan was a teacher in junior high school in that School District, who had confronted the principal in his office over policies that Givhan considered to be racially discriminatory. The School District then failed to renew Givhan's contract.

The District Court found that the School District had violated Givhan's First Amendment rights, as expressed in Pickering. The Court of Appeals reversed, because Givhan expressed her opinions in a private meeting. 555 F.2d 1309. The U.S. Supreme Court reversed the Court of Appeals, stating:
  This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly. While those cases each arose in the context of a public employee's public expression, the rule to be derived from them is not dependent on that largely coincidental fact.
439 U.S. at 414.

summary of Pickering and its progeny

Pickering and progeny stand for the proposition that employees of state governments (except for executive positions, such as members of a governor's cabinet) may not have their employment terminated because of their expression of political opinions or their participation in the political process, such as advocating political or social change.


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

Myers was an attorney in the office of Connick, the District Attorney of New Orleans. Right away, we see that this case is about neither a teacher nor a professor. However, this landmark case has been cited as the leading case in many court opinions involving free speech rights of a professor.

Myers distributed a questionnaire to 15 other attorneys in the District Attorney's office. The questionnaire contained 13 questions about office morale, level of confidence in supervisors, need for a grievance committee in the office, transfers of employees to different sections of criminal court, whether employees felt pressured to work on political campaigns, and other issues related to [bad] management. Only a few hours after Connick learned of Myers' questionnaire, Connick terminated Myers' employment, because Connick considered the distribution of the questionnaire to be an act of insubordination by Myers.

Myers sued under civil rights law, 42 U.S.C. § 1983, in Federal District Court, which – relying on Pickering – found that her employment was wrongfully terminated, because she had exercised her right of free speech. 507 F.Supp. 752 (E.D.La. 1981). The District Court awarded Myers "full back pay from the date of her wrongful termination", reimbursement of her "reasonable attorney's fees", and $ 1500 — equivalent to about three weeks of salary — for her "emotional and mental distress". 507 F.Supp. at 760.

The U.S. Court of Appeals affirmed the District Court without an opinion. 654 F.2d 719 (5thCir. 1981).

Connick then appealed to the U.S. Supreme Court, which reversed the two lower courts and substantially modified the law expressed in Pickering. 461 U.S. 138 (1983).

The U.S. Supreme Court disposed of Myers by declaring that 13 of the 14 questions in her questionnaire were not a matter of "legitimate public concern". The Court then decided the case, without considering the other factors in Pickering. 461 U.S. at 148.   (If the Supreme Court had found Myers' questionnaire was a matter of "legitimate public concern", then the Supreme Court would presumedly have applied the remaining analysis in Pickering.)

There are several quotations from Myers that illustrate the reasoning of the U.S. Supreme Court:
  Pickering, its antecedents and progeny, lead us to conclude that if Myers' questionnaire cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal of the worker may not be fair, but ordinary dismissals from government service which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.
Myers, 461 U.S. at 146. [footnote omitted]
Note that the U.S. Supreme Court is willing to defer to the decisions of managers, even if termination of someone's employment "may not be fair". This is well established law and is not particularly remarkable to attorneys. I include this quotation, because I think it will shock most laymen to learn that courts consider some rules and principles as more important than fundamental fairness to people.

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.
Myers, 461 U.S. at 147. [citations omitted]

While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.
Myers, 461 U.S. at 149.
Myers never claimed that the office should be "run as a roundtable". This observation by the Court is probably irrelevant, except to show the depth of the Court's loathing for freedom of speech of employees.

The dissenting opinion in Myers mentions a fact that was ignored in the majority opinion: a local newspaper in New Orleans, where Connick was District Attorney, ran "a seven-paragraph story" on Myers' case. 461 U.S. at 160, n.2 (Brennan, J., dissenting). This long newspaper story is strong evidence that Myers' concerns were indeed of "legitimate public concern", contrary to the decision of the majority in Myers. Brennan's dissent, which takes 15 pages in the U.S. Reports, eloquently articulates why Myers' questionnaire was of "legitimate public concern" and why the majority was wrong.

my views about Myers

My personal feeling is that the majority opinion in Myers, in their eagerness to defer to decisions of managers, omitted significant facts that conflicted with their opinion and then changed the law expressed in Pickering that had worked well in practice.

only protect political speech?

The Supreme Court acknowledged in passing that the First Amendment protects more than just political speech. 461 U.S. at 147. However, the overall effect of Myers was to deny government employees protection for anything other than political speech. I believe that the Supreme Court erred in focusing on protecting only political opinions or other matters of "public concern". Freedom of speech is not valuable merely because it protects open discussion of political issues – freedom of speech is valuable because it protects the entire spectrum of ideas and opinions.

efficient functioning of government

In Myers, the U.S. Supreme Court showed its concern for the smooth and efficient functioning of government agencies, characterized by the lack of disruption and the apparent harmony within offices. Unfortunately, by suppressing dissent and new ideas generated by employees, the Supreme Court ensured that managers would have total control of employees, even if an employee had discovered a better way to work, a better way that might be more efficient than the manager's way. Furthermore, one must recognize that change and new ideas are inherently disruptive — by suppressing disruption, one also suppresses new ideas and constructive criticism of management. Criticism of the status quo is the first step in making improvements. It is undeniably in the best interest of society to have government agencies and their employees continually experiment with improvements in service. Yet the Supreme Court supports a repressive bureaucracy in which new ideas only come down the chain of command from high-level managers.

Myers' questionnaire may have been slightly disruptive. But, Myers' supervisor, Dennis Waldron, had told Myers that other attorneys in the office did not share Myers' concerns. 507 F.Supp. at 754 (Finding of Fact Nr. 5), 461 U.S. at 141. Waldron's statement made the opinions of other attorneys in the office a relevant issue, even if it was irrelevant before Waldron made his remark to Myers. (There are a number of instances familiar to litigators in which privileged information, or previously irrelevant material, can suddenly become admissible evidence, by one party's putting those facts "at issue".)

Ironically, if Myers had involved journalists in her dispute, then the Court might have deemed Myers' conduct more worthy of First Amendment protection. On the other hand involving a journalist would have been much more disruptive to the efficiency and harmony of Connick's organization, which organization the Court protected at the expense of Myers' rights as an individual.

The majority in Myers emphasized the need for efficiency in government, and the ability of a manager to control his employees. The majority's argument was shredded by Brennan in his dissent that "the manner in which government is operated or should be operated" is not only of "public concern", but also "an essential part of the ... First Amendment." 461 U.S. at 156 (Brennan, J., dissenting).

Both the District Court and the U.S. Supreme Court found that the questionnaire did not impede Myers' ability to perform her assignments. 507 F.Supp. at 759 ("There is no evidence that plaintiff was anything other than a hardworking, conscientious attorney who fulfilled the requirements imposed upon her by her job."), 461 U.S. at 151. Myers had declined "a number of promotion offers" during her more than five years as an attorney in Connick's office, because Myers wanted to continue to be a litigator. 507 F.Supp. at 753 (Finding of Fact Nr. 2). In other words, this dispute between Myers and her manager led to the dismissal from public service of a competent professional. Do we get a more efficient government by terminating the employment of competent professionals who have the courage to criticize management, thereby relegating government employment to obsequious drones?

free speech sometimes offensive

In the section above on efficient functioning of government, I mentioned that one must recognize that change and new ideas are inherently disruptive — by suppressing disruption, one also suppresses new ideas and constructive criticism of management.

The law in the USA has courageously protected political speech, even though the content of such speech may be highly offensive to the majority of people. In what must be one of the strongest triumphs for the idea of freedom of speech in the USA, courts upheld the right of neo-Nazis – while wearing their uniforms and openly displaying swastika symbols – to march in a neighborhood in Skokie, Illinois that was not only predominantly Jewish, but also included several thousand survivors of German concentration camps. Collin v. Smith, 447 F.Supp. 676, aff'd 578 F.2d. 1197 (7thCir. 1978), cert. den., 439 U.S. 916 (1978). What is remarkable about the Supreme Court's opinion in Myers is that the Court permitted Connick to terminate Myers' employment, because she had irritated Connick in a petty little incident over a questionnaire. If neo-Nazis have the right to express their opinion – although it is repugnant and outrageously offensive to most people, and recall horribly painful memories in survivors of Nazi concentration camps – shouldn't Myers have the right to express her opinion, even though Connick was briefly irritated?

free speech for teachers and professors

It is commonly acknowledged that education is a critical item for all people in our society. It is also widely known among teachers and professors that academic standards in the USA have eroded dramatically since about 1960. If society is to have any hope of improving learning conditions in schools and colleges, teachers and professors must have the freedom to speak, and to give low – or even failing grades – to pupils and students who earn them, without fear of retaliation by management and the educational bureaucracy. As the U.S. Supreme Court said in 1968:
Teachers are, as a class, the members of a community most likely to have informed and definite 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, 391 U.S. at 572.

In addition to improving academic standards, there is the fundamental issue of casting "a pall of orthodoxy over the classroom". Keyishian 385 U.S. 589, 603 (1967). Managers should respect differences of opinions and styles among faculty. Unfortunately, the U.S. Supreme Court has not kept its promise to professors and teachers that was made in Keyishian:
  Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. 'The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' Shelton v. Tucker, supra, 364 U.S., at 487.
385 U.S. at 603.

historical perspective on Myers

Myers represents a change in the way that the U.S. Supreme Court viewed freedom of speech. Myers was decided by a 5 to 4 vote – a mere one vote among nine justices resulted in the change of law. I suggest that the previous law of Pickering and its progeny was not defective. Instead, Myers was the result of a shift in political orientation of the justices on the U.S. Supreme Court. When Myers was decided in 1983, the liberal Justice William O. Douglas, who was the strongest defender of freedom of speech on the Supreme Court, had been retired for eight years. Myers contains a dissent written by Justice Brennan and joined by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens. Marshall had, 15 years earlier, written the opinion of the Court in Pickering. Justice White, who wrote the only dissenting opinion in Pickering, wrote the majority opinion in Myers.

Post-Myers cases

Waters v. Churchill, 511 U.S. 661 (1994).

In 1987, Cheryl Churchill, a nurse employed in the obstetrics department at a hospital operated by the government, had a conversation during a lunch break with Melanie Perkins-Graham, a nurse who was considering transferring to the obstetrics department. There are two versions of this conversation:
  1. Perkins-Graham, and another nurse (Ballew) who overheard part of the conversation, claimed that Churchill criticized Churchill's superior, Waters, and stated that conditions were bad in the obstetrics department. As a result of this conversation, Perkins-Graham was no longer interested in transferring to the obstetrics department.

  2. Churchill, supported by a physician (Koch) and another nurse (Welty) who overheard part of the conversation, claimed that Churchill actually said that staffing policies at the hospital "seemed to be impeding nursing care" and that care of patients at the hospital was "threatened". Further, Churchill encouraged Perkins-Graham to transfer to obstetrics.

Ballew told Waters, Churchill's supervisor, about the conversation. After a short investigation, the hospital administration believed the Ballew and Perkins-Graham version of the conversation, and terminated the employment of Churchill.

Note: (The actual factual situation is considerably more complicated; a more complete account is found in the decision of the Court of Appeals. 977 F.2d 1114, 1116-1119 (7thCir. 1992). It may be that the U.S. Supreme Court simply omitted facts that got in the way of its decision.)

Churchill appealed her termination to the Chief Executive Officer of the Hospital, in what the Court of Appeals characterized as "a star-chamber proceeding". 977 F.2d 1114, 1119 (7thCir. 1992).

Churchill then sued for violation of her civil rights. The U.S. District Court granted summary judgment to the hospital. The U.S. Court of Appeals reversed, holding that there was a question of fact about the content of Churchill's speech. 977 F.2d 1114 (7thCir. 1992). The Court of Appeals stated that Churchill's version of her speech was "most certainly a matter of public concern" and "undoubtedly ... a matter of public concern" that was protected under Myers. 977 F.2d at 1121 and 1122.

The U.S. Supreme Court then heard the case and, in a plurality decision by four justices, further weakened employees' rights under Myers.

The U.S. Supreme Court held that the operative test was not what a jury or court believed, but what the governmental employer reasonably believed. The Court emphasized that the government as employer would be granted extra deference by the court, in order that the government could manage its employees in an "efficient" way. The Court distinguished this role of the government as employer from the government's obligation to respect freedom of speech for citizens (i.e., the role of government as a sovereign). 511 U.S. at 671-680.

The Court went on to hold that the governmental employer could make its decision about terminating an employee without using the rules of evidence that would be required in court. 511 U.S. at 676-677. If that wasn't enough, the Court made the gratuitous remark that "Management can spend only so much of their time on any one employment decision." to stress the employer's need to make a quick decision, instead of the careful decision that a court would make. 511 U.S. at 680.

In passing, the Court noted that Churchill's speech was disruptive because it "may have substantially dampened Perkins-Graham's interest in working in obstetrics" and that "potential disruptiveness of the speech ... was enough to outweigh whatever First Amendment value it might have had." 511 U.S. at 680. In making this determination, the U.S. Supreme Court totally ignored its earlier remark that Churchill's supervisor (Waters) and the hospital's vice president of nursing (Davis) never spoke with Churchill or the two witnesses favorable to Churchill (Koch and Welty) about the conversation until after Waters and Davis made the decision to terminate Churchill. 511 U.S. at 666. (also see 977 F.2d at 1118-19.)

Three justices of the Court (Scalia, Kennedy, and Thomas) concurred in the result, but preferred not to change the rules in Pickering and Myers. 511 U.S. at 686-694.

And two justices of the Court (Stevens and Blackmun) dissented:
Everyone agrees that respondent Cheryl Churchill was fired because of what she said in a conversation with co-workers during a dinner break. Given the posture in which this case comes to us, we must assume that Churchill's statements were fully protected by the First Amendment. Nevertheless, the plurality concludes that a dismissal for speech is valid as a matter of law as long as the public employer reasonably believed that the employee's speech was unprotected. This conclusion is erroneous because it provides less protection for a fundamental constitutional right than the law ordinarily provides for less exalted rights, including contractual and statutory rights applicable in the private sector.
511 U.S. at 695 (Stevens, J., dissenting) [footnote omitted].

Ordinarily, when someone acts to another person's detriment based upon a factual judgment, the actor assumes the risk that an impartial adjudicator may come to a different conclusion. Our legal system generally delegates the determination of facts upon which important rights depend to neutral factfinders, notwithstanding the attendant risks of error and overdeterrence.
511 U.S. at 696 (Stevens, J., dissenting) [footnote omitted].

Federal constitutional rights merit at least the normal degree of protection. Doubts concerning the ability of juries to find the truth, an ability for which we usually have high regard, should be resolved in favor of, not against, the protection of First Amendment rights.
511 U.S. at 696 (Stevens, J., dissenting) [citation omitted].

The need for governmental efficiency that so concerns the plurality is amply protected by the substantive limits on public employees' rights of expression. See generally Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Efficiency does not demand an additional layer of deference to employers' "reasonable" factual errors. Today's ruling will surely deter speech that would be fully protected under Pickering and Connick.
511 U.S. at 696-697 (Stevens, J., dissenting).

  The risk that a jury may ultimately view the facts differently from even a conscientious employer is not, as the plurality would have it, a needless fetter on public employers' ability to discharge their duties. It is the normal means by which our legal system protects legal rights and encourages those in authority to act with care. .... There is nothing unfair or onerous about putting the risk of error on an employer in these circumstances.
511 U.S. at 698-699 (Stevens, J., dissenting) [footnote omitted].

The dissenting opinion concludes:
  Government agencies are often the site of sharp differences over a wide range of important public issues. In offices where the First Amendment commands respect for candid deliberation and individual opinion, such disagreements are both inevitable and desirable. When those who work together disagree, reports of speech are often skewed, and supervisors are apt to misconstrue even accurate reports. The plurality, observing that managers "can spend only so much of their time on any one employment decision," ante [511 U.S. at 680], adopts a rule that invites discipline, rather than further discussion, when such disputes arise. That rule is unwise, for deliberation within the government, like deliberation about it, is an essential part of our "profound national commitment" to the freedom of speech. Cf. New York Times, 376 U.S., at 270, 84 S.Ct., at 721. A proper regard for that principle requires that, before firing a public employee for her speech, management get its facts straight.

  I would affirm the judgment of the Court of Appeals.
511 U.S. at 699 (Stevens, J., dissenting).

Earlier, the U.S. Court of Appeals, which was reversed by the plurality opinion of the U.S. Supreme Court, had a view similar to Justice Stevens:
We hold that when a public employer fires an employee for engaging in speech, and that speech is later found to be protected under the First Amendment, the employer is liable for violating the employee's free-speech rights regardless of what the employer knew at the time of termination. If the employer chooses to discharge the employee without sufficient knowledge of her protected speech as a result of an inadequate investigation into the employee's conduct, the employer runs the risk of eventually being required to remedy any wrongdoing whether it was deliberate or accidental.
977 F.2d at 1127 [footnote omitted].

As with Doyle and Myers earlier, the U.S. Supreme Court gave no consideration to whether Churchill was a competent employee. The speech of these three employees, in an isolated incident, was the sole reason for the termination of their employment. The Court of Appeals noted that Churchill received at least standard performance ratings in every one of some fifty ratings categories in her performance reviews in December 1985 and December 1986. 977 F.2d 1114, 1116 (7thCir. 1992). Moreover, the Court of Appeals stated:
We wish to make it very clear that we do not condone an insubordinate or troublemaking employee, but Cheryl Churchill's actions fall far short of the actions of an insubordinate or problem employee. From our reading of the record, her concern was also that patient health care was endangered due to the controversial cross-training policy that transferred a nurse trained in obstetrics to another department (pediatrics, orthopedics) where that nurse was inadequately trained to give appropriate health care and then recalling her back to the obstetrics department during the same shift. [citation omitted] In taking action to report this controversial practice, Churchill lived up to the highest ethics of her most noble profession. [citing Code For Nurses of the American Nurse's Association]
977 F.2d at 1125.

I have a few comments on quotations from the plurality opinion of the U.S. Supreme Court in Churchill:
  Nonetheless, not every procedure that may safeguard protected speech is constitutionally mandated. .... A speaker is more protected if she has two opportunities to be vindicated--first by the employer's investigation and then by the jury--than just one. But each procedure involves a different mix of administrative burden, risk of erroneous punishment of protected speech, and risk of erroneous exculpation of unprotected speech. Though the First Amendment creates a strong presumption against punishing protected speech even inadvertently, the balance need not always be struck in that direction. We have never, for instance, required proof beyond a reasonable doubt in civil cases where First Amendment interests are at stake, though such a requirement would protect speech more than the alternative standards would.
511 U.S. at 670.
No one in this case suggested that the level of proof for a constitutional wrong should be "beyond a reasonable doubt" (i.e., the standard in criminal cases). Here, the Court is not considering strengthening protections for fundamental civil liberties, such as freedom of speech, but is further weakening those protections, despite the Court's empty words about the importance of the First Amendment.

  We have never set forth a general test to determine when a procedural safeguard is required by the First Amendment .... None of us have discovered a general principle to determine where the line is to be drawn. We must therefore reconcile ourselves to answering the question on a case-by-case basis, at least until some workable general rule emerges.
511 U.S. at 671.
Did it ever occur to the Court that their job may be to formulate a "workable general rule" that informs people of the precise scope of their fundamental constitutional liberties, as well as guides lower courts in consistently applying the law?

But when an employee counsels her co-workers to do their job in a way with which the public employer disagrees, her managers may tell her to stop, rather than relying on counterspeech.
511 U.S. at 672.
The Court's remark has nothing to do with the facts of this case! Churchill did not "counsel" her co-worker (Perkins-Graham). And Churchill's manager did not "tell her to stop". In fact, Churchill's manager terminated Churchill's employment, without first discussing the incident with Churchill. The Court of Appeals noted, in passing, that the hospital did not follow its own rules, when the hospital terminated Churchill without any warning. 977 F.2d at 1127, n.10.

But though a private person is perfectly free to uninhibitedly and robustly criticize a state governor's legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing.
511 U.S. at 672.
Again, the Court's remark has nothing to do with the facts of this case! Churchill was not a "high-ranking deputy of a state governor" who owed a duty of loyalty to the governor. Churchill was a nurse in a public hospital, who was concerned that management's policies were "impeding nursing care" of her patients. Those patients would probably agree that Churchill's opinions were matters of "legitimate public concern" that should be protected speech under the law stated in Pickering.

Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.
511 U.S. at 674 [citing Pickering 391 U.S. at 572].
But, after Myers and this decision in Churchill, the public will get their information from ex-government workers who are unemployed. This is not the way to reward people who are contributing to the public debate that is essential to our democracy.

  We think employer decision making will not be unduly burdened by having courts look to the facts as the employer reasonably found them to be.
511 U.S. at 677.
That is certainly true. After Myers and this decision in Churchill, the government can readily fire employees for speaking on matters of public concern and the ex-employee receives little protection from the courts. But the Court's concern was misdirected. The government, as a powerful bureaucracy, does not need to be protected from "undue burdens". It is the employee, weak and standing alone, who needs protection from capricious termination of his/her employment. And it is the public who needs to hear unpleasant facts about decisions or policies of government managers, in order that the public can make an informed decision in our democracy. I believe that the U.S. Supreme Court's decision in Churchill was outrageously wrong.

Board of County Commissioners v. Umbehr, 518 U.S. 668 (1996).

The First Amendment was not dead after Myers. Umbehr was an independent contractor who had a contract with a county in Kansas to haul trash. As the U.S. Supreme Court said,
  During the term of his contract, Umbehr was an outspoken critic of petitioner, the Board of County Commissioners of Wabaunsee County (Board), the three-member governing body of the County. Umbehr spoke at the Board's meetings, and wrote critical letters and editorials in local newspapers regarding the County's landfill user rates, the cost of obtaining official documents from the County, alleged violations by the Board of the Kansas Open Meetings Act, the County's alleged mismanagement of taxpayers' money, and other topics. His allegations of violation of the Kansas Open Meetings Act were vindicated in a consent decree signed by the Board's members. Umbehr also ran unsuccessfully for election to the Board.

  The Board's members allegedly took Umbehr's criticism badly, threatening the official county newspaper with censorship for publishing his writings. In 1990, they voted, 2 to 1, to terminate (or prevent the automatic renewal of) Umbehr's contract with the County. That attempt at termination failed because of a technical defect, but in 1991, the Board succeeded in terminating Umbehr's contract, again by a 2 to 1 vote. Umbehr subsequently negotiated new contracts with five of the six cities that he had previously served.
518 U.S. at 671.

Umbehr sued and the U.S. Supreme Court ruled, 7 to 2, that the First Amendment prohibited the government from either
  1. terminating a contract of an independent contractor or
  2. prevention of the automatic renewal of at-will government contracts
in retaliation for the contractor's speech on topics of public concern. The Court specifically found the test in Pickering to be applicable to independent contractors.

Why is nonrenewal of a trash-hauling contract relevant to freedom of speech for learned professionals? Well, one can easily imagine a professor with research contracts from a government agency. The professor publicly criticizes the government agency's policy decisions and the agency retaliates by canceling, or by not renewing, the professor's contract.

At the end of its opinion, the Court explicitly noted that its opinion in Umbehr did not address the possibility of retaliation by the government against "applicants for new governmental contacts". 518 U.S. at 685. This is a standard warning, as the Court usually only decides the narrow issue before it in a particular case.

Application to Professors

The general pattern is for a court to defer to the employer/university. Below, I only mention a few examples to keep this essay short.

An untenured professor at the business school at Southeastern Massachusetts University whose contract was not renewed filed a civil rights action in Federal District Court, which granted summary judgment for the university. In affirming the decision of the District Court, the U.S. Court of Appeals declared:
  Plaintiff claims that the real reason his contract was not renewed and his grievances were rejected or interfered with is because he refused to inflate his grades or lower his expectations and teaching standards. He contends that, in response to student complaints that homework assignments were too time consuming and that plaintiff's courses were too hard, defendants first threatened not to renew plaintiff's contract unless he appeased the students and then carried out their threat when plaintiff refused to lower his standards. This, plaintiff says, interfered with his academic freedom which, plaintiff maintains, is protected by the first amendment.

  It is important to note what plaintiff's first amendment claim is and to separate speech from action. Plaintiff has not contended that he was retaliated against simply because he advocated that the university elevate its standards. .... Plaintiff's complaint instead is that he was retaliated against when he refused to change his standards.

  We will assume for purposes of this opinion that plaintiff's refusal to lower his standards was a substantial motivating factor, see Mount Health Board of Education v. Doyle, 429 U.S. 274, 283-284, (1977), in the decision not to renew his contract. We nevertheless conclude that plaintiff has failed to state a constitutional claim.

  Whether a school sets itself up to attract and serve only the best and the brightest students or whether it instead gears its standard to a broader, more average population is a policy decision which, we think, universities must be allowed to set. And matters such as course content, homework load, and grading policy are core university concerns, integral to implementation of this policy decision. [citations omitted] To accept plaintiff's contention that an untenured teacher's grading policy is constitutionally protected and insulates him from discharge when his standards conflict with those of the university [footnote omitted] would be to constrict the university in defining and performing its educational mission. The first amendment does not require that each nontenured professor be made a sovereign unto himself. [citations omitted]
Lovelace v. Southeastern Massachusetts Univ., 793 F.2d 419, 425-426 (1stCir.1986).
The sarcastic comment that a professor is not "a sovereign into himself" was uncalled for.

The case of Parate v. Isibor, 868 F.2d 821, 827-830 (6thCir. 1989), held that the assignment of a grade in a class at a state university was a symbolic act of speech that was protected under the First Amendment. While an administrator (e.g., Dean or Department Head) could himself change a grade, that administrator could not lawfully order a professor to change a grade.
According to the court, the dispute was essentially ethnic: Parate was a native of India and an associate professor of civil engineering, while Isibor was a native of Nigeria and the Dean of the Engineering School, both at Tennessee State University. A Nigerian student in Parate's class requested that Parate change his grade from a B to an A. Parate refused, because the student had earned a B and also because this student had cheated on the final examination and had presented two false medical excuses during the semester. However, Isibor demanded that Parate change the grade to an A. Parate "agreed" under threats from the Department Head. The court found that both the Dean and Department Head "engaged in a variety of retaliatory acts against Parate". Id. at 824. Two years later, Parate's annual contract was not renewed, and no official reason for the nonrenewal was given. Id. at 824-825. While Parate was in his final year of teaching at Tennessee State University, Isibor, the Dean, harassed Parate in the classroom. Id. at 825. The Court of Appeals characterized Isibor's behavior as "unprofessional", but the Court held that it did not violate Parate's academic freedom. Id. at 831.

Cases like these relegate an untenured professor to the status of mere employee, who must obey his/her employer or be dismissed. The effect of these cases is to make faculty docile and to inhibit freedom of speech.

The Western New Mexico University, in Silver City, New Mexico, dismissed Prof. David Powell, who was both a tenured professor and head of their Humanities Department, because of his publication of grade fraud for football players in 1990 by an adjunct professor. Prof. Powell sued in Federal District Court and the University moved for summary judgment, which the court denied. 1992 WL 540521. The University then appealed to the U.S. Court of Appeals, which affirmed the denial of summary judgment. The Court of Appeals found that Prof. Powell's statements "clearly concerned matters of public interest" under the standard in both Pickering and Myers and stated "We agree with the district court's conclusion that Dr. Powell is properly characterized as a whistle blower." Powell v. Western New Mexico University, 992 F.2d 1088, 1091 (10thCir.1993). The ultimate disposition of this case is not reported.

conclusion about professors

If any part of our society is to be a home for freedom of speech, one would think that colleges and universities, full of bright professors and idealistic young students, would be that home. The problem, however, is not the professors or students, but is the professional administrators who are committed to controlling the faculty in an efficient way.

There is nothing in the law that would prohibit an college administration from being enlightened, i.e., not only tolerating, but also genuinely respecting and including, those who criticize the status quo. However, faculty are warned that the federal law in the USA does not require such enlightenment from administrators.

Senior professors at major universities have earned a doctoral degree, and then continued to discover or create new knowledge that is described in dozens of archival papers, and sometimes also in books, that the professors write. Such professors are precious resources for society, not generic commodities to be battered by professional administrators who typically have a lesser record of scholarly achievement than the professors. (This remark also applies outside universities, where a manager with a mere bachelor's degree, or with an MBA degree, may be supervising research scientists, physicians, or attorneys who may be both more intelligent and more creative than the manager. Managers should be loath to interfere with people who are doing things that the manager is unqualified to do.)


I believe it is significant that Myers distributed her questionnaire only to other attorneys, not to clerical personnel. 507 F.Supp. at 754 (Finding of Fact Nr. 8). Similarly, Churchill's conversation was with another nurse, not with clerical personnel. In a separate essay, I argue that learned professionals, regardless of whether employed by the government or employed by private enterprise (both for-profit and non-profit organizations), need special protection for their speech and actions. In that separate essay, I discuss a few cases in which learned professionals have been protected by courts from wrongful termination of their employment.

The blunt honesty of the little boy in the children's story about the Emperor Who Wore No Clothes is not the way of sophisticated adults in the USA who want to stay employed. An employee who dares to criticize openly policies and decisions of management would be considered by most adults to be naive, unrealistic, hopelessly idealistic, and other pejorative labels.

I remind readers that the First Amendment to the U.S. Constitution only provides for freedom of speech against regulation by the federal or state government (e.g., a state university). A private employer (e.g., a private university) generally has no legal requirement to respect freedom of speech of its employees.

Since 1977, the U.S. Supreme Court has only weakly protected freedom of speech for government employees. In some states, employees might now have more protection under state law than federal law. My companion essay contains a review of cases under state law involving wrongful termination of employment of a learned professional, because he/she chose to follow an ethical principle of his/her profession.

this document is at
My most recent search for court cases on this topic was in June 2000.
version 6 June 2000

return to my homepage