Lauren Palmer, Government Law Review member
On January 27, 2010, the U.S. Court of Appeals, Second Circuit, held that another type of speech is not protected under the First Amendment. Public employees’ speech made “pursuant to . . . official duties” is not a protected speech. The case, Weintraub v. Board of Education, involved a teacher who was denied the opportunity to pursue a retaliation claim against a school. The U.S. Court of Appeals found that filing a grievance was pursuant to one of his official duties as a public school teacher, maintaining discipline, and thus was not protected speech. This holding rests solely on the court’s broad interpretation of a recent case, Garcetti v. Ceballos,  and a narrow interpretation of public employees’ First Amendment protections. In this author’s opinion, the dissent was correct–a more appropriate reading would be a less expansive one. The definition of speech made “pursuant to . . . official duties” should be read more narrowly, as this would preserve the “delicate balancing” required by the First Amendment freedom of speech for public employees.
Petitioner-Appellant David H. Weintraub, a former elementary public school teacher, sued the Board of Education of the City of New York for wrongful termination. He claimed that Respondent-Appellees violated his First Amendment rights by retaliating against him, and ultimately fired him, after he filed a formal grievance with his union representative. Weintraub filed the grievance to challenge the school administration’s refusal to discipline a student who threw a book at him during class on multiple occasions. He felt it was the matter was of public concern; that it was “not an environment a teacher would want to go to where a child is allowed to throw a book at teachers.” Weintraub alleged that the school officials retaliated through acts of intimidation and harassment against him because of his complaint. He also alleged that after his complaint, he received “unfounded negative performance reviews and evaluations,” wrongful criminal accusations, “and was ultimately terminated.”
The Eastern District Court, in an April 28, 2006 opinion, originally held that Weintraub’s First Amendment claim was valid because the content of the speech related to a public concern regardless of his status as a teacher and thus his complaint was protected by his First Amendment rights. Over a year later, on May 29, 2007, the district court reconsidered the plaintiff’s First Amendment claim in light of the subsequent Garcetti decision which raised new issues and redefined protected and non-protected speech in schools.
The Eastern District Court then identified three instances of speech for which Weintraub could plausibly claim retaliation: (1) his private conversation with the assistant principal about his dissatisfaction with how he handled the discipline incident; (2) his private conversations with other teachers about the principal; and (3) the formal grievance itself. The court held that only the second category could possibly be protected by the First Amendment claim and dismissed the other categories as unprotected. The court reasoned that his private conversations with other teachers about his conflict with the assistant principal was “clearly not within the scope of his employment duties” as a teacher. The first and third categories, the court held, should not be protected because “in both instances, Weintraub was speaking as an employee, proceeding through official channels to complain about unsatisfactory working conditions.”
Through an interlocutory appeal, the case then went up to the U.S. Court of Appeals, Second Circuit. In a de novo review, the issue was limited to the question of whether the First Amendment protects his filing of a grievance with the union. On January 27, 2010, the court held that the teacher’s filing of grievance was, in fact, pursuant to his official duties as teacher. The court reasoned that because the grievance was in furtherance of one of his core duties as a public school teacher, to maintain classroom discipline, there was no relevant citizen speech which could be violated. Thus, relying on Garcetti, the court found that Weintraub’s filing of a grievance was not protected by the First Amendment and the district court properly dismissed his claim of wrongful termination.
More than forty jurisdictions recognize retaliatory discharge claims for wrongful termination. The specifics of the claims may vary, but in general, such claims afford an employee tort recovery when he or she has been discharged for insisting on compliance with or the protection of an important public policy or legal obligation. In this case, in order for a public employee to bring a retaliatory discharge claim alleging a violation of First Amendment rights, Weintraub must have established that his speech fell outside the scope of his official duties. He failed to do so.
The U.S. Court of Appeals, Second Circuit, held that a public employee’s speech is “pursuant to official duties” and is unprotected when it both (1) is in furtherance of the employee’s core duties and (2) has no relevant analogue to citizen speech. The court found that Weintraub had acted pursuant to his official duties and was not afforded the protections of the First Amendment.
One may ask: what are ‘official duties’? Clarity is not easily found in case law or the Legislature. Garcetti leaves open the definition of “official duties” and it is questionable as to whether it set out the appropriate test for determining those duties. The first prong, ‘in furtherance of an employee’s core duties,’ is very broad. As a teacher, the core duties are numerous and contentious, “[e]verything from a healthy diet to a two-parent family has been suggested to be necessary for effective classroom learning, and hence speech on a wide variety of topics might all too readily be viewed as ‘in furtherance of’ the core duty of encouraging effective teaching and learning.” Such a test does not adequately serve the courts and juries that will hear future cases: it is too subjective and there is little certainty as to what free speech actually is for both employers and employees.
The second prong of the test requires that the speech is not similar to citizen speech. The problem with this prong is that it neglects to define this category of speech. Garcetti explained why speech pursuant to employment responsibilities is unprotected, but it also failed to define that category of speech. This gap leaves room for interpretation and provides a weak standard for future parties bringing similar action in need of judicial guidance. Moreover, the majority’s two prong test is over expansive because it permits readings that would allow retaliation against speech seeming to require protection under the First Amendment.
This case illustrates a harsh limitation on fundamental liberties due to the court’s expansive interpretation of binding authority. Furthermore, this holding is not entirely in line with precedent. The U.S. Supreme Court has repeatedly asserted that “the members of a community most likely to have informed and definite opinions” about an issue must “be able to speak out freely on such questions without fear of retaliatory dismissal.” On the other hand, limiting the protection on speech by excluding speech pursuant to official duties, the court discourages employees from making complaints publicly when they might otherwise be handled internally.
In Weintraub, the U.S. Court of Appeals, Second Circuit, followed the majority in Garcetti, further limiting the First Amendment rights of public employees. Teachers are not permitted to bring retaliatory claims based on First Amendment violations against schools unless those violations meet a very narrow category of speech. This is a heavy burden for public employee plaintiffs to bear. Public employees must now look to the Legislature for a more liberal rule, or at least more clarification regarding public employees’ freedom of speech.
 Weintraub v. Bd. of Educ., 2010 WL 292663, at *8 (2d Cir. Jan. 27, 2010) (hereinafter “Weintraub III”) (Calbresi, J., dissenting) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)).
 Weintraub III, 2010 WL 292663, at *1.
 Id. at *1.
 547 U.S. 410 (2006).
 See Weintraub III, 2010 WL 292663, at *8 (Calabresi, J. dissenting) (noting that the majority’s “reading . . . is not compelled by anything in the Supreme Court’s opinion”).
 Weintraub III, 2010 WL 292663, at *8 (quoting Garcetti, 547 U.S. 423).
 See id. at *1.
 Id. (quoting Pl.’s Dep. 47:10-12).
 Id. at *2.
 Weintraub III, 2010 WL 292663, at *2.
 Weintraub v. Bd. of Educ. of City of N.Y., 423 F. Supp. 2d 38, 52 (E.D.N.Y.2006) (hereinafter “Weintraub I”).
 Garcetti, 547 U.S. at 421-24 (holding that the First Amendment does not protect speech made pursuant to a public employee’s official duties).
 Weintraub v. Bd. of Educ. Of City of N.Y., 489 F. Supp. 2d 209, 214 (E.D.N.Y. 2007) (“Weintraub II).
 Id. at 214-15.
 Id. at 220.
 Id. at 219–20.
 Weintraub III, 2010 WL 292663, at *3 (the case went up to the U.S. Court of Appeals through an interlocutory appeal, pursuant to 28 U.S.C. § 1292(b)).
 Id. at *4.
 Id. at *6.
 Stephen Gillers, Regulation of Lawyers 566 (8th Ed. 2009) (note that some states, like New York, do not recognize retaliatory discharge claims but may recognize breach of implied contract claims).
 Weintraub III, 2010 WL 292663, at *1; see Garcetti, 547 U.S. at 421–24.
 See Garcetti, 547 U.S. at 421.
 Weintraub III, 2010 WL 292663, at *8 (Calabresi, J., dissenting).
 Garcetti, 547 U.S. at 424.
 Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will County Ill., 391 U.S. 563, 572 (1968).
 Garcetti, 547 U.S. at 424.