Privacy Issues in the Community College Workplace

In Dahlia v. Rodriguez, the Ninth Circuit held that a Burbank police detective could assert a First Amendment retaliation claim based on his complaints to superiors about alleged abusive interrogation tactics at his department. 531 In Ellins v. City of Sierra Madre 532 , the Ninth Circuit Court of Appeals determined that a police officer who serves as union president could state a First Amendment retaliation claim based on his union-related speech. The speech at issue included the officer successfully leading a vote of “no confidence” against his Police Chief, and the union’s press releases about the vote criticizing the Chief’s management style. The Ninth Circuit, while not deciding the facts, determined that there was enough evidence for the plaintiff’s case to go to a jury. The Court found that there was enough evidence, if believed by the jury, to support that the speech at issue was not an “individual personal grievance” but essentially “collective” grievances raised by the union. The Court also held that the speech was outside of the officer’s “official duties” because he was speaking as the union’s President and not pursuant to “official duties.” In Johnson v. Poway Unified School District 533 the Ninth Circuit Court of Appeal held that a high school math teacher did not have a First Amendment right to place religious posters or otherwise “use his public position as a pulpit from which to preach his own views on the role of God” to the captive students in his mathematics classroom. The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher's choosing. Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall. One, striped in red, white and blue, contained the phrases: "In God We Trust," "One Nation Under God," "God Bless America," and "God Shed His Grace On Thee." A second banner quoted from the Declaration of Independence by stating "All Men Are Created Equal, They Are Endowed By Their Creator," and placed the word "Creator" in all uppercase letters. Johnson had taught at the school for 30 years. The first banner had been in his classroom for 25 years, and the second for 17 years. In 2007, the District, concerned about a violation of principles of separation of church and state ordered that Johnson remove the banners. Johnson sued alleging his First Amendment free speech rights had been violated. The Court of Appeal reversed the trial court holding that Johnson had no free speech claim. The Court held that for public high school teachers in this context, "forum analysis" must give way to the specific framework the U.S. Supreme Court has developed for public employee speech claims. That framework asks, among other things, whether the employee spoke as a private citizen rather than a public employee. An employee speaks as a public employee when the speech is made pursuant to "official duties." In those circumstances, there is no First Amendment free speech claim. The Court held that Johnson's banners constituted his speech as a public employee. The Court applied the following standard for making this determination for a teacher, in this particular case: "[B]ecause of the position of trust and authority they hold and the impressionable young minds with which they interact, teachers necessarily act as teachers for purposes of [an "official duties" analysis] when [they are] at school or a school function, in the general presence of students, in a capacity one might reasonably view as official."

Privacy Issues in the Community College Workplace ©2019 (c) Liebert Cassidy Whitmore 163