After petitioner was dismissed from her employment as a teacher,
she intervened in a desegregation action against respondent School
District, seeking reinstatement on the ground,
inter alia,
that her dismissal infringed her right of free speech under the
First and Fourteenth Amendments. In an effort to justify the
dismissal, the School District introduced evidence of,
inter
alia, a series of private encounters between petitioner and
the school principal in which petitioner allegedly made "petty and
unreasonable demands" in a manner variously described by the
principal as "insulting," "hostile," "loud," and "arrogant."
Concluding that the primary reason for the dismissal was
petitioner's criticism of the School District's practices and
policies, which she conceived to be racially discriminatory, the
District Court held that the dismissal violated petitioner's First
Amendment rights and ordered her reinstatement. The Court of
Appeals reversed, holding that, under
Pickering v. Board of
Education, 391 U. S. 563;
Perry v. Sindermann, 408 U. S. 593; and
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.
S. 274, petitioner's complaints and opinions were not
protected by the First Amendment because they were expressed
privately to the principal, and because there is no constitutional
right to "press even
good' ideas on an unwilling
recipient."
Held: A public employee does not forfeit his First
Amendment protection against governmental abridgment of freedom of
speech when he arranges to communicate privately with his employer,
rather than to express his views publicly. Pp.
439 U. S.
413-417.
(a)
Pickering, Perry, and
Mt. Healthy do not
support the Court of Appeals' conclusion that private expression is
unprotected by the First Amendment. The fact that each of those
cases involved public expression by the employee was not critical
to the decision. Pp.
439 U. S.
414-415.
(b) Nor is the Court of Appeals' view supported by the "captive
audience" rationale, since the principal, having opened his office
door to petitioner, was hardly in a position to argue that he was
the "
unwilling recipient" of her views. P.
439 U. S.
415.
(c) Respondents'
Mt. Healthy claim, rejected by the
Court of Appeals, that the decision to terminate petitioner would
have been made
Page 439 U. S. 411
even if her encounters with the principal had never occurred
called for a factual determination that could not, on the record,
be resolved by that court, since it was not presented to the
District Court,
Mt. Healthy having been decided after the
trial in this case. Pp.
439 U. S.
416-417.
555 F.2d 1309, vacated in part and remanded.
REHNQUIST, J., delivered the opinion for a unanimous Court.
STEVENS, J., filed a concurring opinion,
post, p.
439 U. S.
417.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Bessie Givhan was dismissed from her employment as a
Junior high English teacher at the end of the 1970-1971 school
year. [
Footnote 1] At the time
of petitioner's termination, respondent Western Line Consolidated
School District was the subject of a desegregation order entered by
the United States District Court for the Northern District of
Mississippi. Petitioner filed a complaint in intervention in the
desegregation action, seeking reinstatement on the dual grounds
that
Page 439 U. S. 412
nonrenewal of her contract violated the rule laid down by the
Court of Appeals for the Fifth Circuit in
Singleton v. Jackson
Municipal Separate School District, 419 F.2d 1211 (1969),
rev'd and remanded sub nom. Carter v. West Felician Parish
School Board, 396 U. S. 290
(1970),
on remand, 425 F.2d 1211 (1970), and infringed her
right of free speech secured by the First and Fourteenth Amendments
of the United States Constitution. In an effort to show that its
decision was justified, respondent School District introduced
evidence of, among other things, [
Footnote 2] a series of private encounters between
petitioner and the school principal in which petitioner allegedly
made "petty and unreasonable demands" in a manner variously
described by the principal as "insulting," "hostile," "loud," and
"arrogant." After a two-day bench trial, the District Court held
that petitioner's termination had violated the First Amendment.
Finding that petitioner had made "demands" on but two occasions,
and that those demands
Page 439 U. S. 413
"were neither 'petty' nor 'unreasonable,' insomuch as all the
complaints in question involved employment policies and practices
at [the] school which [petitioner] conceived to be racially
discriminatory in purpose or effect,"
the District Court concluded that
"the primary reason for the school district's failure to renew
[petitioner's] contract was her criticism of the policies and
practices of the school district, especially the school to which
she was assigned to teach."
App. to Pet. for Cert. 35a. Accordingly, the District Court held
that the dismissal violated petitioner's First Amendment rights, as
enunciated in
Perry v. Sindermann, 408 U.
S. 593 (1972), and
Pickering v. Board of
Education, 391 U. S. 563
(1968), and ordered her reinstatement.
The Court of Appeals for the Fifth Circuit reversed.
Ayers
v. Western Line Consol. School Dist., 555 F.2d 1309 (1977).
Although it found the District Court's findings not clearly
erroneous, the Court of Appeals concluded that, because petitioner
had privately expressed her complaints and opinions to the
principal, her expression was not protected under the First
Amendment. Support for this proposition was thought to be derived
from
Pickering, supra, Perry, supra, and
Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U. S. 274
(1977), which were found to contain "[t]he strong implication . . .
that private expression by a public employee is not
constitutionally protected." 555 F.2d at 1318. The Court of Appeals
also concluded that there is no constitutional right to "press even
good' ideas on an unwilling recipient," saying that to afford
public employees the right to such private expression "would, in
effect, force school principals to be ombudsmen, for damnable, as
well as laudable, expressions." Id. at 1319. We are unable
to agree that private expression of one's views is beyond
constitutional protection, and therefore reverse the Court of
Appeals' judgment and remand the case so that it may consider the
contentions of the parties freed from this erroneous view of the
First Amendment.
Page 439 U. S. 414
This Court's decisions in
Pickering, Perry, and
Mt.
Healthy do not support the conclusion that a public employee
forfeits his protection against governmental abridgment of freedom
of speech if he decides to express his views privately, rather than
publicly. While those cases each arose in the context of a public
employee's public expression, the rule to be derived from them is
not dependent on that largely coincidental fact. In
Pickering, a teacher was discharged for publicly
criticizing, in a letter published in a local newspaper, the school
board's handling of prior bond issue proposals and its subsequent
allocation of financial resource between the schools' educational
and athletic programs. Noting that the free speech rights of public
employees are not absolute, the Court held that, in determining
whether a government employee's speech is constitutionally
protected, "the interests of the [employee], as a citizen, in
commenting upon matters of public concern" must be balanced against
"the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees." 391 U.S. at
391 U. S. 568.
The Court concluded that, under the circumstances of that case,
"the interest of the school administration in limiting teachers'
opportunities to contribute to public debate [was] not
significantly greater than its interest in limiting a similar
contribution by any member of the general public."
Id. at
391 U. S. 573.
Here, the opinion of the Court of Appeals may be read to turn, in
part, on its view that the working relationship between principal
and teacher is significantly different from the relationship
between the parties in
Pickering, [
Footnote 3] as is evidenced by
Page 439 U. S. 415
its reference to its own opinion in
Abbott v. Thetford,
534 F.2d 1101 (1976) (en banc),
cert. denied, 430 U.
S. 54 (177). But we do not feel confident that the Court
of Appeals' decision would have been placed on that ground
notwithstanding its view that the First Amendment does not require
the same sort of
Pickering balancing for the private
expression of a public employee as it does for public expression.
[
Footnote 4]
Perry and
Mt. Healthy arose out of similar
disputes between teachers and their public employers. As we have
noted, however, the fact that each of these cases involved public
expression by the employee was not critical to the decision. Nor is
the Court of Appeals' view supported by the "captive audience"
rationale. Having opened his office door to petitioner, the
principal was hardly in a position to argue that he was the
"
unwilling recipient" of her views.
The First Amendment forbids abridgment of the "freedom of
speech." Neither the Amendment itself nor our decisions indicate
that this freedom is lost to the public employee who arranges to
communicate privately with his employer, rather
Page 439 U. S. 416
than to spread his views before the public. We decline to adopt
such a view of the First Amendment.
While this case was pending on appeal to the Court of Appeals,
Mt. Healthy City Bd. of Ed. v. Doyle, supra, was decided.
In that case, this Court rejected the view that a public employee
must be reinstated whenever constitutionally protected conduct
plays a "substantial" part in the employer's decision to terminate.
Such a rule would require reinstatement of employees that the
public employer would have dismissed even if the constitutionally
protected conduct had not occurred and, consequently,
"could place an employee in a better position as a result of the
exercise of constitutionally protected conduct than he would have
occupied had he done nothing."
429 U.S. at
429 U. S. 285.
Thus, the Court held that, once the employee has shown that his
constitutionally protected conduct played a "substantial" role in
the employer's decision not to rehire him, the employer is entitled
to show
"by a preponderance of the evidence that it would have reached
the same decision as to [the employee's] reemployment even in the
absence of the protected conduct."
Id. at
429 U. S.
287.
The Court of Appeals in the instant case rejected respondents'
Mt. Healthy claim that the decision to terminate
petitioner would have been made even if her encounters with the
principal had never occurred:
"The [trial] court did not make an express finding as to whether
the same decision would have been made, but, on this record, the
[respondent] do not, and seriously cannot, argue that the same
decision would have been made without regard to the 'demands.'
Appellants seem to argue that the preponderance of the evidence
shows that the same decision would have been justified, but that is
not the same as proving that the same decision would have been
made. . . . Therefore, [respondents] failed to make a successful
'same decision anyway' defense."
555 F.2d at 1315.
Page 439 U. S. 417
Since this case was tried before
Mt. Healthy was
decided, it is not surprising that respondents did not attempt to
prove in the District Court that t.he decision not to rehire
petitioner would have been made even absent consideration of her
"demands." Thus, the case came to the Court of Appeals in very much
the same posture as
Mt. Healthy was presented to this
Court. And while the District Court found that petitioner's
"criticism" was the "primary" reason for the School District's
failure to rehire her, it did not find that she would have been
rehired but for her criticism. Respondents'
Mt. Healthy
claim called for a factual determination which could not, on this
record, be resolved by the Court of Appeals. [
Footnote 5]
Accordingly, the judgment of the Court of Appeals is vacated
insofar as it relates to petitioner, and the case is remanded for
further proceedings consistent with this opinion.
So ordered.
[
Footnote 1]
In a letter to petitioner, dated July 28, 1971, District
Superintendent C. L. Morris gave the following reasons for the
decision not to renew her contract:
"(1) [A] flat refusal to administer standardized national tests
to the pupils in your charge; (2) an announced intention not to
cooperate with the administration of the Glen Allan Attendance
Center; (3) and an antagonistic and hostile attitude to the
administration of the Glen Allan Attendance Center demonstrated
throughout the school year."
[
Footnote 2]
In addition to the reasons set out in the District
Superintendent's termination letter to petitioner,
n 1,
supra, the School District
advanced several other justifications for its decision not to
rehire petitioner. The Court of Appeals dealt with these
allegations in a footnote:
"Appellants also sought to establish these other bases for the
decision not to rehire: (1) that Givhan 'downgraded' the papers of
white students; (2) that she was one of a number of teachers who
walked out of a meeting about desegregation in the fall of 1969 and
attempted to disrupt it by blowing automobile horns outside the
gymnasium; (3) that the school district had received a threat by
Givhan and other teachers not to return to work when schools
reopened on a unitary basis in February, 1970; and (4) that Givhan
had protected a student during a weapons shakedown at Riverside in
March, 1970, by concealing a student's knife until completion of a
search. The evidence on the first three of these points was
inconclusive, and the district judge did not clearly err in
rejecting or ignoring it. Givhan admitted the fourth incident, but
the district judge properly rejected that as a justification for
her not being rehired, as there was no evidence that [the
principal] relied on it in making his recommendation."
Ayers v. Western Line Consol. School Dist., 555 F.2d
1309, 1313 n. 7 (CA5 1977).
[
Footnote 3]
The
Pickering Court's decision upholding a teacher's
First Amendment claim was influenced by the fact that the teacher's
public statements had not adversely affected his working
relationship with the objects of his criticism:
"The statements [were] in no way directed towards any person
with whom appellant would normally be in contact in the course of
his daily work as a teacher. Thus, no question of maintaining
either discipline by immediate superiors or harmony among coworkers
is presented here. Appellant's employment relationship with the
Board and, to a somewhat lesser extent, with the superintendent,
are not the kind of a close working relationships for which it can
persuasively be claimed that personal loyalty and confidence are
necessary to their proper functioning."
391 U.S. at
391 U. S.
569-570.
[
Footnote 4]
Although the First Amendment's protection of government
employees extends to private, as well as public, expression,
striking the
Pickering balance in each context may involve
different considerations. When a teacher speaks publicly, it is
generally the
content of his statements that must be
assessed to determine whether they
"in any way either impeded the teacher's proper performance of
his daily duties in the classroom or . . . interfered with the
regular operation of the schools generally."
Id. at
391 U. S.
572-573. Private expression, however, may, in some
situations, bring additional factors to the
Pickering
calculus. When a government employee personally confronts his
immediate superior, the employing agency's institutional efficiency
may be threatened not only by the content of the employee's
message, but also by the manner, time, and place in which it is
delivered.
[
Footnote 5]
We cannot agree with the Court of Appeals that the record in
this case does not admit of the argument that petitioner would have
been terminated regardless of her "demands." Even absent
consideration of petitioner's private encounters with the
principal, a decision to terminate based on the reasons detailed at
nn.
1 and |
1 and S. 410fn2|>2,
supra, would
hardly strike us as surprising. Additionally, in his letter to
petitioner setting forth the reasons for her termination, District
Superintendent Morris makes no mention of petitioner's "demands"
and "criticism."
See 1
and S. 410fn1|>n. 1,
supra.
MR. JUSTICE STEVENS, concurring.
Because this Court's opinion in
Mt. Healthy Cty Bd. of Ed.
v. Doyle, 429 U. S. 274, had
not been announced when the District Court decided this case, it
did not expressly find that respondents would have rehired
petitioner if she had not engaged in constitutionally protected
conduct. The District Court did find, however, that petitioner's
protected conduct was the "primary" reason for respondents'
decision.
* The
Page 439 U. S. 418
Court of Appeals regarded that finding as foreclosing
respondents'
Mt. Healthy claim. In essence, the Court of
Appeals concluded that the District Court would have made an
appropriate finding on the issue if it had had access to our
Mt. Healthy opinion.
My understanding of the District Court's finding is the same as
the Court of Appeals'. Nevertheless, I agree that the District
Court should have the opportunity to decide whether there is any
need for further proceedings on the issue. If that court regards
the present record as adequate to enable it to supplement its
original findings without taking additional evidence, it is free to
do so. On that understanding, I join the Court's opinion.
* App. to Pet. for Cert. 35a.
See also id. at 36a,
where the District Court stated that petitioner's protected
activity was "almost entirely" responsible for her termination.