2d Circuit Holds Union Speech Can Be Protected By The First Amendment

Montero v. City of Yonkers, ___F.3d___(2d Cir. May 16, 2018), is an important First Amendment decision. http://www.ca2.uscourts.gov/decisions The Court held that certain speech made at a union meeting can be protected by the First Amendment. The Court did not go as far as several other circuits which held that speech made at a union meetings is per se speech made by a private citizen. Specifically, the 2d Circuit stated:

While we therefore decline to decide categorically that when a person
speaks in his capacity as a union member, he speaks as a private citizen, we conclude that, under the facts of this case as set out in the amended complaint, when Montero spoke in his capacity as a union member, he spoke as a private citizen. This was because, taking the amended complaintʹs allegations as true, Montero spoke in his role as a union officer, and his union speech was not composed of statements made as a ʺmeans to fulfillʺ or ʺundertaken in the course of performingʺ his responsibilities as a police officer. Weintraub, 593 F.3d at 203 (quotation marks omitted). Consequently, he engaged in citizen speech for purposes of the First Amendment.

This decision is lengthly and it spans about 45 pages. The decision reviews the history of First Amendment jurisprudence in this Circuit and is a primer on First Amendment protections for public employees or the lack thereof which readers should be aware of.

Teacher who Reported That Another Teacher Improperly Coached Students is not Protected Under First Amendment

Cohen v. NYC Department of Education, ____Fed. Appx.____(2d Cir. Sept. 20, 2017), demonstrates just how narrow the protection are for public employees under the First Amendment. There, a teacher noticed that students in another teacher's class received perfect scores. He suspected that the teacher improperly coached his students. He then received negative ratings and argued that was because of his report. The 2d Circuit held that the teacher's conduct here was not protected under the First Amendment, reasoning:

Only certain types of speech made by government employees are protected by the First Amendment: it is necessary (but not sufficient) that the government employee “sp[eak] ‘as a citizen’ rather than solely as an employee.” Matthews v. City of New York, 779 F.3d 167, 172 (2d Cir. 2015) (quoting Jackler v. Byrne, 658 F.3d 225, 235 (2d Cir. 2011)). There is no “brightline rule” to determine whether or not “a public employee is speaking pursuant to [his] official duties,” i.e., speaking as an employee rather than as a citizen. Ross v. Breslin, 693 F.3d 300, 306 (2d Cir. 2012). “Courts must examine the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two.” Id. 

In Weintraub v. Board of Education, a teacher alleged retaliation after complaining that a school administrator had declined to punish a student who had thrown books at the teacher. 593 F.3d 196, 198 (2d Cir. 2010). The teacher’s complaint was made “pursuant to his official duties because it was part-and-parcel of his concerns about his ability to properly execute his duties as a public school teacher-- namely, to maintain classroom discipline.” Id. at 203 (citation and quotation marks omitted). Consequently, the teacher spoke as an employee rather than as a citizen.

So too here. Cohn and the other earth science teachers were responsible for setting up the laboratory exam, creating the answer key, and grading the exam. As in Weintraub, Cohn’s speech was “part-and-parcel” of his job responsibilities--here, ensuring the fair and proper administration of a test for which he had some responsibility. Id. The alert to school officials that another teacher may have helped students cheat was therefore “pursuant to his official duties.” Id. Accordingly, Cohn was speaking as an employee--rather than as a citizen--and his speech is unprotected by the First Amendment.

7th Circuit Decides Agency Fee Case That May Wind Up In Supreme Court

In Abood v. Detroit Board of Education, 431 U.S. 209 (1977), the Supreme Court upheld a state law which required public sector employees to pay an amount equal to union dues, but not join the union. This landmark First Amendment decision compromised the right of objectors (by recognizing that they do not have to join the union) as well as the right of unions (by allowing them to collect what are essentially dues because they have the obligation to represent non members).

In a series of cases, the concept of Agency Fee has been under attack. The Supreme Court granted cert and last term, split 4-4 after the death of Justice Scalia.

On March 21, 2017, the 7th Circuit-in an opinion by Judge Posner-decided a case that just may make it to the Supreme Court. Janus v. ASFME, ____F.3d____(7th Cir. March 21, 2017). The outcome of this case was never in doubt because the 7th Circuit was bound to follow Abood.

Will the Supremes grant cert in this case. I think they will. Why? First, Judge Posner is probably one of the most respected circuit judges. Additionally, the case was decided on a motion to dismiss and it presents purely a legal question. Third, the Supremes just split 4-4 on this very issue which by definition illustrates that this case involves an important legal issue.

What will the Supremes do? That is anyone's guess. Though I heard that our new Justice has never ruled on an agency fee issue, he is known to be conservative and he was appointed by let's say, not the most liberal President. So, some public sector unions are in for the fight of their life.