The Supreme Court ruled 9 to 0 yesterday that a public employe doesn't forfeit First Amendment protection of freedom of speech when he puts his views before his superiors privately rather than publicly.
The court had ruled previously that a public employe can publicly criticize his agency's policies or practices without being disciplined or fired unless his First Amendment interests are outweighed by interference he is causing with the agency's services to the public.
By extending the same protection to criticisms made privately to superiors, the court has resolved "an important and unanswered question concerning the First Amendment rights of millions of federal, state and local government employes," said David Rubin, deputy general counsel of the National Education Association.
Now these public employes have "a meaningful alternative to 'whistleblowing,'" he said.
Rubin had argued the case in the Supreme Court in behalf of Bessie B. Givhan, a junior high English teacher in rural Mississippi who was fired by the Western Line Consolidated District at the end of the 1970-71 school year. At the time, the district was under a desegregation order.
In a July 1971 letter, District Superintendent C. L. Morris told Givhan that her contract hadn't been renewed because of "a flat refusal to administer standarized national tests," and "an antagonistic and hostile attitude to the administration of the Glen Allan Attendance Center."
Officials produced evidence of private encounters with Principal James Leach in which she allegedly made "petty and unreasonable demands" in tones that he variously termed "insulting," "hostile," "loud" and "arrogant."
But U.S. District Judge Irma R. Smith, ruling for Givhan in a suit brought by the teacher, said that evidence in a two-day trial showed a much different picture.
Givhan had made "demands" on only two occasions, and the demands "were neither 'pretty' nor 'unreasonable,' insomuch as all of the complaints in question involved employment policies and practices at [the] school which [Givhan] conceived to be racially discriminatory in purpose or effect," Smith said.
And, the judge held, "the primary reason" for not rehiring Givhan "was her criticism of the policies and practices of the school district, especially the school to which she was assigned to teach."
Smith held that the district had violated Givhan's constitutional right of free speech. But the 5th U.S. Circuit Court of Appeals reversed, holding that the Constitution confers no right to "press even 'good' ideas on an unwilling recipient."
To afford public employes the right to such private expression "would in effect force school principals to be ombudsmen for damnable as well as laudable expressions," wrote Judge Walter P. Gewin.
In yesterday's opinion for the unanimous Supreme Court, Justice William H. Rehnquist wrote, "We are unable to agree that private expression of one's views is beyond constitutional protection." The case was sent back for a determination of whether the firing, "freed from this erroneous view of the First Amendment," was justified.
In a Missouri case, the court ruled that Billy Duren was denied a fair trial on first-degree murder and robbery charges because of a state law that grants women an automatic exemption from jury service if they request it. The exemption resulted in a 15 percent reduction in the number of women on jury venires in Kansas City.