Update: FIRE welcomes today’s Supreme Court decision in Kennedy v. Bremerton School District.
FIRE’s amicus curiae brief warned the Court that the Ninth Circuit’s opinion threatened the protected speech of public college and university faculty. By recognizing that public school employees like Coach Kennedy don’t speak on behalf of the government at all times and in all circumstances, the Court addressed our concern.
Today’s ruling makes it harder for public institutions to punish teachers for protected expression off the clock. That’s a win for public employee speech rights.
Joseph Kennedy was fired from his position as assistant coach of a high school football team because he wanted to continue praying on the 50-yard line after games. He filed suit to vindicate his expressive rights; after the U.S District Court for the Western District of Washington and U.S. Court of Appeals for the Ninth Circuit ruled against him, the Supreme Court granted review.
While many organizations weighed in to address Coach Kennedy’s First Amendment rights under the Free Exercise Clause and the school’s obligations under the Establishment Clause, FIRE filed an amicus curiae brief in the Supreme Court to address the contested boundary between the speech rights of public employees under the Free Speech Clause and the interests of employers in efficiency.
Though the First Amendment broadly protects the rights of all Americans to the freedom of speech, in Garcetti v. Ceballos the Court held that public employees do not enjoy that protection in the workplace, where they speak on behalf of their government employers and can be punished or fired even for fleeting expressions of personal opinion. However, the Court recognized that one class of government employee — public university faculty — may yet be allowed to speak and write freely while on the job. After all, as the Court recognized in the seminal cases of Sweezy v. New Hampshire and Keyishian v. Board of Regents, academic freedom is a special concern of the First Amendment and requires judicial care and protection.
In the approximately 16 years since Garcetti stripped some 20 million public employees of their First Amendment rights when they clock in, four federal courts of appeals have declined to extend the decision to public university faculty. FIRE filed its amicus curiae brief to ask the Court to follow suit. If the Ninth Circuit decision is allowed to stand, FIRE’s experience representing university faculty demonstrates that its reasoning will soon be misapplied.