Mark, I appreciate your counterexample. As may have been clarified by my response to Eugene, it's not an "on other other hand" sort of thing -- I think you and I actually are in agreement. I too worry that it's too easy to stifle public employee speech rights. All I'm saying is, we're stuck with the current doctrine. The question is, how should we make it better?
Interesting question about academic freedom if the teacher were a professor. Courts have generally viewed college campuses as more robust speech environments than K-12 settings, on the principles that uninhibited debate is critical to academic life and that college students are not (or at least should not be) the kind of sensitive plants that younger students can be. As a Garcetti matter, this particular speech would seem to have absolutely nothing to do with a teacher's official responsibilities, and as a Pickering matter I would hope no public university would argue that it somehow interfered with its operations and good order. Thus, the speech should simply receive the same protection as that of any other citizen. One problem we're seeing is that courts seem willing to sweep a lot of faculty speech under the heading of "official duties" and thereby make it subject to employer discipline. I'm co-counsel for the AAUP as amicus in a pending 7th Circuit case that illustrates the problem. (The brief is at <http://www-personal.umich.edu/~stevesan/CapeheartAAUPBrief.pdf> http://www-personal.umich.edu/~stevesan/CapeheartAAUPBrief.pdf). The professor here engaged in a campus protest, something we might assume is core First Amendment speech, yet the district court construed it has part of her professorial duties. Steve _____ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Friday, August 19, 2011 9:31 AM To: Law & Religion issues for Law Academics Subject: RE: Teacher suspended for anti-same-sex-marraige Facebook post There is much to be said for Steve's point of view. On the other hand, consider the implications. What about a teacher whose blog severely criticizes creationists ("I want to puke when I hear that Gov. Perry wants to have schools teach creationism) or who says that religion sickens him or who says that anyone who supports the Iraq war or that 911 was a US plot to justify invading Afghanistan and Iraq etc.? Doesn't this also lead to a heckler's veto, in which students who don't like the teacher's point of view will protest and then it will be claimed that the Pickering/Connick analysis justifies taking action against the teacher? How would this work in the context of academic freedom in a university? Mark S. Scarberry Professor of Law Pepperdine Univ. School of Law Malibu, CA 90263 (310) 506-4667 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steve Sanders Sent: Friday, August 19, 2011 5:41 AM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: Teacher suspended for anti-same-sex-marraige Facebook post Doesn't this call for a straightforward Pickering/Connick analysis? I'm assuming Garcetti wouldn't apply, unless the teacher used Facebook to communicate officially with students. I lean strongly in favor of protecting the teacher's speech which, crude as it was, was clearly on a matter of public concern. So isn't the key inquiry whether the employer can demonstrate that this particular speech was harmful to the good order and discipline of the school? Seems to me there would be lots of facts we'd need to know. Was the post readable by anyone or just the teacher's Facebook friends? What's the climate for gay students at the school? Could it be argued that this post realistically (without the fuss caused by the suspension itself) would have caused harm to gay students or disrupted the school generally? Steve Sanders University of Michigan Law School On Aug 18, 2011, at 6:56 PM, "Volokh, Eugene" <vol...@law.ucla.edu> wrote: Any thoughts on this? http://www.cnn.com/2011/US/08/18/florida.teacher.facebook/ Lake County Schools Communications Officer Chris Patton said school officials received a complaint Tuesday about the content on Mount Dora High School teacher Jerry Buell's personal Facebook page .... CNN affiliate Central Florida News 13 reported that a status post on it said, "I'm watching the news, eating dinner, when the story about the New York okaying same sex unions came on and I almost threw up." Patton would not confirm the content of the post, but he said Lake County officials are taking the matter very seriously. "We began to review the code of ethics violations immediately and yesterday afternoon temporarily reassigned the teacher pending the outcome of the investigation," Patton told CNN Thursday.... The newspaper said that in the same July 25 post, Buell said same-sex marriages were part of a "cesspool" and were a "sin." ... Buell, a teacher for more than 26 years [and a former "teacher of the year"], served as the Social Studies Department chair at Mount Dora and taught American history and government, according to the high school's website.... _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
