C. Edwin Baker Lecture for Liberty, Equality, and Democracy - Spring 2023
Professor Martin Malin delivers the 2023 Baker Lecture for the WVU College of Law. Professor Malin’s lecture is titled “The Supreme Court, the First Amendment and the Erosion of Public Employer Managerial Authority.”
In 2018, in Janus v. AFSCME Council 31, the Supreme Court held that a contractual requirement that public employees represented by a union who were not members of the union pay a fee equal to their pro rata share of the costs of their representation violated those employees’ First Amendment rights to be free from compelled speech. This past term, in Kennedy v. Bremerton School District, the Court held that a school district violated an assistant football coach’s rights to the free exercise of religion by prohibiting him from publicly saying a prayer at the 50-yard line at the conclusion of football games and not renewing his contract because he defied the prohibition. These cases are the latest chapters in an on-going saga where courts are asked to review adverse employment actions and thereby balance employee First amendment rights with employer interests in managing their workforces.
For a long time, the Court regarded public employment as a privilege, the loss of which occasioned no constitutional violation even when it resulted from retaliation for otherwise constitutionally protected activity. The Court moved away from this right-privilege distinction beginning in the late 1960s and developed a balance between public employee constitutional rights and public employer interests in managing the workforce. Under this approach, exemplified by the Court’s decisions in Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos, the Court held unprotected against adverse employment action employee speech uttered in the course of performing employment duties and speech that did not involve matters of public concern. With respect to speech on matters of public concern, courts balanced the employee’s First Amendment interests against the employer’s interests in managing the workforce, paying a fair amount of deference to the employer’s managerial judgments.
In his Baker Lecture, Professor Malin will discuss how the decisions in Janus and Kennedy significantly disrupt this balance and threatened to upend public employers’ legitimate workplace managerial authority.