Tuesday’s U.S. Supreme Court decision to limit protection for public employees who blow the whistle on official wrongdoing intentionally sidestepped the question of whether the restrictions apply to public colleges.
In the 5-4 decision, the court ruled that public employees are not protected under the First Amendment when they speak on public matters in the role of their jobs.
“We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline,” Justice Anthony M. Kennedy wrote in the opinion of the court.
Justice Kennedy was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Antonin Scalia and Samuel A. Alito Jr.
In the context of a public employee’s job, speech is not protected when it affects the government institution’s ability to operate, according to the court’s majority opinion.
“A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to
affect the entity’s operations,” Justice Kennedy wrote in the court’s ruling.
David Colapinto, an attorney with the National Whistleblower Center, said the ruling will discourage public employees from reporting misconduct in an age of “government secrecy.”
“My general reaction is that this is a decision designed to squelch dissent and discourage people from reporting things that would be embarrassing to the government,” he said.
As one of three justices who authored dissents, Justice David H. Souter specifically addressed the ramifications the ruling could have on officials who work for public colleges, such as professors and teachers.
“I have to hope that today’s majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to official duties,’” Justice Souter wrote.
Possibly responding to Justice Souter’s concern, Justice Kennedy wrote in the court’s opinion that the court “need not” decide whether Tuesday’s ruling would apply to speech “related to scholarship or teaching.”
But Colapinto said the ruling could have serious consequences for University officials speaking on public matters within the duties of their job.
“You’re going to have professors saying things in class and they can be fired for its content,” he said. “To me, it indicates the decision’s flawed reasoning.”
Furthermore, Colapinto said all public employees should be concerned with the consequences of the ruling.
“They should be scared to death,” he said. “They are going to be subject to discipline or perhaps even termination based on the content on whatever their speech is to supervisors on matters of public concern.”
Melinda Grier, general counsel to the University, said the situation is not as dire for University officials as Colapinto believes.
“It really is just an important case, but when I look at the University of Oregon, I don’t see immediate application,” she said.
Professors should not feel the need to watch their language in the classroom because of the ruling, Grier said.
“I think that they shouldn’t feel that the world has moved under their feet,” she said. “I think this (ruling) is consistent with what the court has said before.”
Grier said one positive aspect of the ruling was clearer definitions of what constitutes public concern for government officials. She also said the ruling’s total impact won’t be understood for some time.
Regardless of where public employees work, Colapinto said they will now be discouraged from reporting misconduct.
A situation he fears could involve two public employees both reporting a complaint to their bosses in the chain of command. One may be punished if the complaint is related to her position, while the other one would not.
“What the Supreme Court is saying is that you can be penalized for giving your employer the courtesy of trying to get (a problem) resolved,” he said.
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The Associated Press contributed to this report