In a case with wide-ranging implications for First Amendment cases in Connecticut (and New York), the Second Circuit today held that a school teacher’s union grievances were not protected speech.
The case, Weintraub v. Board of Education of New York (download here) covers a lot of ground, but it chimes in on an issue the federal courts have had to grapple with: how do you determine whether an issue raised by employees is "pursuant to" the employee’s duties. (If it is "pursuant to" such duties, the Supreme Court has held that it is not protected by the First Amendment.
In the case released today, the Second Circuit discussed what "pursuant to" means. It took the path advocated by the employer (and followed by other Circuits) that:
speech can be “pursuant to” a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. In particular, we conclude that Weintraub’s grievance was “pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” as a public school teacher — namely, to maintain classroom discipline, which is an indispensable prerequisite to effective teaching and classroom learning.
The Court also addressed the manner in which the speech was made. Of particular interest to the Court was the path chosen by the employee to publicize his issues — an internal one. Had the employee chosen a path available by other "citizens", the Court said it might be protected. But where the speech was made to a purely internal source, it too was not protected.
The lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general. Rather than voicing his grievance through channels available to citizens generally, Weintraub made an internal communication made pursuant to an existing dispute-resolution policy established by his employer, the Board of Education.
The case had been pending for over 14 months at the Second Circuit; its release today will no doubt send reverberations to all sorts of First Amendment cases now pending in the Connecticut courts.