Two recent court decisions are worthy of the attention of the readers of The Montana Professor for what they tell us about the attitude of the courts on public employees' free speech rights and prayers in the public schools and for whatever cautionary value they may have.
114 S.Ct. 1878 (1994), Slip Opinion No. 92-1450
In this case the Supreme Court of the United States on May 31, 1994, ruled that a public employer may fire a public employee for exercise of the right to free speech in criticism of the employer if that speech interfered with the efficiency of the organization and if the employer had made a reasonable effort to determine that the speech at issue was actually uttered.
Cheryl Churchill, a nurse, was employed in the obstetrics department of McDonough District Hospital (Illinois). On January 16, 1987, while on her dinner break she had a conversation with another nurse, Melanie Perkins-Graham, who was considering transferring into the obstetrics department. At some point, it appears, Churchill took Perkins-Graham into the kitchen for some twenty minutes. The conversation evidently dealt with the status of the department. Subsequent to this conversation, Perkins-Graham decided not to seek the transfer. Three persons had overheard parts of the conversation and one of them. Mary Lou Ballew, reported her version to Churchill's supervisor, Cynthia Waters. Ballew's view was that the comments by Churchill were unkind and inappropriate, that they contained negative things about the supervisor, that they portrayed the department as a bad place to work, and that the hospital's vice-president of nursing, Kathleen Davis, was ruining the hospital. Waters and Davis then met with Perkins-Graham but they did not meet with the other two who had overheard the original conversation nor did they talk with Churchill until the decision to fire her had been made.
Upon her dismissal, Churchill filed a grievance with the hospital. It was during the processing of this grievance that Churchill got her first opportunity to tell her side of the story. Her version of the conversation differs from that of Ballew. Churchill denies that she said some of what was alleged. She did admit to having been critical on previous occasions of Davis for some of her policies which Churchill felt were impeding nursing care at the hospital. Churchill also claimed she actually defended Waters and urged Perkins-Graham to transfer to obstetrics. Further, Churchill asserted there were feelings of animosity between her and Ballew dating from an earlier occasion when Ballew had made an error for which Churchill covered. Thus it was clear that there was material disagreement over the factual basis of the dismissal action. Churchill lost the grievance; the decision of Waters and Davis was upheld. Churchill then filed in federal district court arguing violation of her first amendment, free speech rights. Ordinarily it is the responsibility of the district court as trier of the facts to resolve any outstanding issues of fact, such as the issue of what it was that Churchill actually said as opposed to what Waters and Davis thought had been said. In this case, however, the district court did not make such a determination because the court held that neither version dealt with a matter of public concern and thus was not protected by the First Amendment. Hence, the court did not need to deal with other issues. On appeal, the United States Court of Appeals for the Seventh Circuit reversed: 977 F.2d 1114 (1990). This court held the public would be concerned about the care being given in a public hospital and thus Churchill's speech was protected under Connick. The court also held that the justification of the dismissal must be based on what was actually said and not on what the employer thought was said. This decision would have required a remand to the district court for a rehearing to establish the facts. However, an appeal was made by the employers to the U.S. Supreme Court and accepted.
In dealing with such cases the court has distinguished between the state as sovereign and the state as employer. In general, the courts have held that the government as employer has greater latitude in regulating the speech of its employees than the government as sovereign has in regulating the speech of the citizen. The logic behind this is that the government as employer has an obligation to the people (taxpayers) to see to it that the government agencies are operated efficiently. In fulfillment of this responsibility, the state as employer is granted authority to limit the employees' right to speech on matters of public concern when the exercise of that right interferes with the demand for efficiency in the agency. The court balances the right of the individual employee (who is also a citizen) against the obligation of the employer to operate the agency efficiently. In this sense, the person who chooses public employment surrenders some of the freedom that would have been enjoyed if it were not for the public employment. The governing precedents on the matter are Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education of Township High School District, 391 U. S. 563 (1968). Both are applied in Waters v. Churchill.
The Pickering case held that if a public employee's speech causes a disturbance (loss of efficiency) in the agency that speech is not protected by the First Amendment. In Waters the district court did not deal with the issue; the Circuit Court did and found no disturbance; the Supreme Court held that Churchill's conversation caused Perkins-Graham to decide not to transfer and that constituted a disturbance. "Discouraging people from coming to work for a department certainly qualifies as disruption." Slip Opinion at 18. This, of course, ignores Churchill's claim that she encouraged the transfer.
The Connick case held that public employee speech is protected by the First Amendment only when it deals with a matter of public concern. If the speech is concerned with private matters, it is not protected by the amendment. The district court ruled that whatever the speech was it was not a matter of public concern. The Circuit Court ruled that the case must turn on what the speech actually was and not on what the employer at the time thought it was. The issue before the Supreme Court was that question. "In this case, we decide whether the Connick test should be applied to what the government employer thought was said, or to what the trier of fact ultimately determines to have been said." Slip opinion at 1.
Before the Supreme Court, the employers argued that their actions should be judged on the basis of those factual conclusions they had come to at the time the decision was made. If what they thought had been said offered sufficient grounds for dismissal that should dispose of the matter--their decision should be upheld. The employees argued that the employer's factual conclusions should be accepted only if they were arrived at reasonably. They obviously felt that was not so in this case. If the employees had prevailed on this point the matter would have been referred to the district court for a determination of what the actual facts were and whether those facts as determined constituted sufficient grounds for the action taken.
The Supreme Court ruled that the employer is not required to determine the actual facts but is required only to investigate the matter as a reasonable personnel manager would do under the circumstances. In this case that standard was met to the court's satisfaction. "...it is clear that if petitioners [employers] really did believe Perkins-Graham's and Ballew's story, and fired Churchill because of it, they must win. Their belief, based on the investigation they conducted, would have been entirely reasonable." Slip opinion at 17.
Incredibly, this decision seems to abandon truth as a criterion for decision making and substitutes for it a belief be it true or false as long as it was established by reasonable means. The court did not require, as the Circuit Court would have, that it be determined what Churchill actually said. In the controlling cases the facts were known without question. Pickering had put his message in a letter which was published for all to see in the local newspaper. Myers had put hers into a written survey questionnaire, which was duplicated and copies distributed to all the other employees in the department. But in this case the facts were not known. Nonetheless, the court condoned the action taken. Further, the use of the reasonableness standard is troubling because it is so ill defined. In an ordinary injury suit, the standard for determining if a person has been negligent is that one is negligent when one fails to behave as a reasonable person would do under the circumstances. The determination of what is reasonable is left to the jury. In a sexual harassment suit, the standard for what constitutes a hostile work environment is that it is hostile when a reasonable victim finds it to be hostile. Neither standard is very precise, but in this case the standard is unbelievably vague and manifestly unfair; if the manager investigates the situation as a reasonable manager would, the action is proper regardless of how it comports with the actual facts.
Consider this: was it reasonable for Waters and Davis to fire Churchill based on their investigation? Waters and Davis interviewed only one of the witnesses, Ballew, the one who may have been biased (but was perhaps telling the managers what they wanted to hear). The other witnesses were Jean Welty, another nurse, and Dr. Thomas Koch, who was the clinical head of the obstetrics department whose views, one would think, would have been critical. Worse yet Waters and Davis did not even talk to Churchill to get first-hand her version of what had been said. Churchill was interviewed by the administrator who handled her grievance, but that was after the fact. If this cursory and apparently biased investigation is to be the standard of reasonableness in the eyes of the court, should not all public employees draw the conclusion that the only wise thing to do is to keep one's mouth shut?
In addition, there is a privacy problem which the court did not address: Churchill and Perkins-Graham apparently made effort to keep the conversation private--why else would they go into the kitchen? If eavesdropping on private conversation is reasonable in the eyes of the court, are not all public employees justified in concluding that it is not safe to talk to anyone anywhere about anything. Should not all public employees begin forthwith to behave as walking mummies?
But such a course of action, although understandably caused by the chilling effect such decisions have on human beings, is not responsive to the needs of this society where public agencies are. more powerful and pervasive than ever. This society, now more than a decade past 1984, needs critics of the agencies of a powerful government. It requires citizens who are willing and able to speak their minds and point out that indeed the Emperor has no clothes! And what citizen is more able than those who work in those agencies and therefore best know what goes on in them! It is not clear at this writing what the consequences of this decision will be. We will need to wait to see how it is interpreted and applied by the lower courts. This may take a few years. In the meantime, it needs to be remembered that employment decisions are not based solely on what the courts will allow; rather, they are influenced by personal, ethical, and institutional constraints. In the Academy, for example, the long tradition of academic freedom plus the professional respect extant between employer and employee may impede any rush to unwise use of the powers this decision seems to grant. But then...
U.S. Court of Appeals for the Ninth Circuit, Slip Opinion No. 93-35839
In a very recent and less troubling development, the Ninth Circuit Court of Appeals on November 18, 1994, ruled that a public school may not have prayers at commencement exercises even where the prayers are student initiated and conducted.
On the general question of prayers in public schools the controlling cases since the 1960s have been Engel v. Vitale, 370 U.S. 421 (1962), and School District of Abington Township v. Schempp, 374 U.S. 203 (1963). These cases held that voluntary, school organized prayers or devotional Bible reading in the public schools violate the establishment clause of the first amendment. Nevertheless, from then to 1992 it was common practice for public schools to have invocation and benediction at commencement exercises. Commonly the school administration arranged for these ceremonies and chose the person, usually a local minister, to give the invocation and benediction. The commencement ceremony was and is a school activity. Attendance by the students was often compulsory. Even where it was nominally voluntary, the considerable social pressure to attend made the volition less than real. The practice went largely unchallenged until 1992 when it was challenged in Lee v. Weisman, 112 S. Ct. 2649. In this case, the Supreme Court of the United States ruled that where the school in the form of the administration is involved in arranging for or conducting the prayers, the practice violates the establishment clause of the First Amendment. In the same year in a Texas case the Fifth Circuit Court of Appeals ruled that invocation and benediction at commencement exercises do not violate the establishment clause where the prayers are student initiated and conducted: Jones v. Clear Creek Independent School District, 977 F.2d 963. Jones came down while Lee was pending. The logic of this case was that the state was not involved because it was private citizens--the students--who arranged for and conducted the prayers. Hence, there was no establishment clause violation. Once Lee was published, Jones was appealed to the United States Supreme Court. Many observers thought the court would certainly accept the appeal and clear the matter up, since the decision of the Fifth Circuit seemed contrary to the ruling in Lee. Unfortunately that was not the case. The Supreme Court denied the appeal without comment. The result was that the Fifth Circuit Court's decision was allowed to remain the law in the Fifth Circuit. The nature of the controversy over prayers in the public schools being what it is, it should not be surprising that a variety of school districts outside the Fifth Circuit chose to follow the Fifth circuit and continue prayers at commencement by allowing the senior class to vote on whether to have them or not. Generally, students were required where they voted to have prayer to compose and deliver the prayer themselves and were cautioned the prayer could not be proselytizing.
The Grangeville High School in Grangeville, Idaho has had invocation and benediction at commencement exercises since about 1981. Beginning in 1990 the school district left it up to a majority vote of the senior class whether to have prayers or not. This policy was specified by a memo from the Superintendent to the school principals in November of 1990. The Grangeville ceremony follows the usual practice; it is held in the school, the school board sets the time for it and pays for any costs associated with it from public funds. The primary purpose of the ceremony is secular, the granting of diplomas.
Phyllis Wright Harris on her own behalf and on behalf of her three children brought suit against the school, arguing a violation of both state law and the federal constitution. The suit was first brought in the state district court but was moved to federal district court which, while declining to rule on the state law question, held the Grangeville practice did not violate the establishment clause. The Harrises appealed to the Ninth Circuit Court where the case was argued in June of 1994. In defense of the practice the school cited the Jones decision and argued that the practice, in Grangeville was so like that in Clear Creek that the decision in Jones should be followed. The Court disposed of that argument by pointing out that transferring responsibility from the school personnel to the students does not change the fact that the state is involved. The students have the authority to make the decision only because the school has given them that opportunity. Furthermore, when that authority is delegated to private citizens (such as students), they must also follow the constitution. "Even private citizens when acting with government authority must exercise that authority constitutionally.... We cannot allow the school district's delegate to make a decision that the school district cannot make. When the senior class is given plenary power over a state-sponsored, state-controlled event such as high school graduation, it is just as constrained by the Constitution as the state would be." (at 14.) Thus the court demonstrated that it was simply "not persuaded by the reasoning in Jones." (at 12.)
The court applied instead the reasoning of its own decision in a previous case, Collins v. Unified School District, 644 F.2d 759 (1981), and the subsequent Lee decision of the United States Supreme Court, to settle the fact that the Grangeville practice was indeed a violation of the establishment clause. The court concluded, "The presence of state involvement and the obligatory nature of the students' participation in the religious activity taking place at graduation render the Grangeville High graduation prayers unconstitutional." (at 17.)
This decision seems utterly correct and helpful in that at least for the Ninth Circuit the confusion created by the Jones decision is eliminated. Schools are not free to evade the constitution by referring the responsibility to students. Also, the fact that this circuit has disagreed with the Fifth Circuit may persuade the Supreme Court to end the confusion for the entire country by ruling on the next such case to come to it. In the meantime it will be interesting to see what happens this spring in the public schools of Montana, Idaho, Washington, Oregon, California, Nevada, Arizona, Alaska, Hawaii, and Guam.