Supreme Court Sides With NEA Member in Free Speech Case
By Mary Ellen Flannery
NEA member Edward Lane was running a Central Alabama Community College program for at-risk youth when he discovered a state legislator on his payroll, a woman who never actually showed up to work—and so he fired her. And later, when he was subpoenaed to testify about that experience at her corruption trial, he did so, and did so truthfully.
Not long after, Lane was fired.
On Thursday, in a unanimous decision, the U.S. Supreme Court got behind Lane, ruling that the First Amendment protects public employees from job retaliation when they testify in court about public corruption. Writing for the Court, Justice Sonia Sotomayor wrote that Lane was testifying as a citizen on a matter of public concern, even if his testimony covered facts learned at work. Therefore, his testimony was constitutionally protected. The decision is important to NEA’s nearly 3 million members.
“As teachers and other education professionals, our members often must speak up on behalf of their students to ensure that their students’ needs are being met, and that their students are being provided all the resources they need to succeed. When they do so, their speech and actions should be protected,” said NEA President Dennis Van Roekel on Thursday. “The National Education Association is proud of our member, Edward Lane, and we stand with him in his fight for free speech for all public employees.”
The problems for Lane began in 2006, when he was hired to run the “Community Intensive Training for Youth (CITY)” program, a federally funded program affiliated with the community college. Shortly after he came aboard, Lane audited operations and found a state legislator named Suzanne Schmitz on his payroll. She was one of his best-paid employees, he told National Public Radio (NPR) earlier this year, but she was a ghost to him. She never actually came into the office.
Although his colleagues told him to steer clear of the lawmaker, Lane met with Schmitz and ordered her to get to work. She refused, and asked him “did I know who she was for real,” Lane told NPR. So he fired her, explaining, “To me, it’s like being president of the bank. If I know one of my tellers is stealing from the bank, and I allow it to go on, I’m complicit.”
Schmitz’s termination drew the attention of many, including the FBI, which subpoenaed Lane to testify before a grand jury, and later at her two public corruption trials, about his experience with her. He did so. And then he was fired by the college’s then-president, Steve Franks.
With the help of the Alabama Education Association (AEA) and the NEA, Lane sued, contending he had been fired because of his testimony, and that Franks had violated his First Amendment right to free speech.
Lane’s case, Lane v. Franks, eventually wound its way to the U.S. Supreme Court, where NEA, joined by American Federation of State, County & Municipal Employees and the Service Employees International Union, filed an amicus brief in the case, arguing for a broader rule that all testimony should be protected—whether connected to job duties or not.
“In a unanimous decision, the Supreme Court took an important step in ensuring the free speech rights of public employees by concluding that Mr. Lane’s testimony was speech as a citizen on a matter of public concern. We are pleased that the Court has recognized that public employees are indeed protected by the First Amendment when they testify,” said Van Roekel.
The Court most recently considered the First Amendment rights of public employees in 2006. In that case, Garcetti v. Ceballos, a sharply divided court had limited the First Amendment rights of public employees, ruling that while the First Amendment protects their speech when they’re acting “as citizens,” they don’t have protection for speech “pursuant to… official responsibilities.” The Court made clear today that Garcetti in no way limits the First Amendment protection of public employee speech merely because the information conveyed was learned in the course of an employee’s duties. Furthermore, the Court emphasized that it is essential for public employees to be able to speak out freely on matters of public concern without fear of retaliation.
Nonetheless, the Court failed to set a clear rule that public employees’ sworn testimony is always protected. “We are disappointed that the Court did not go further to establish that sworn testimony by public employees should never be the basis for any retaliatory action by a public employer,” said Van Roekel. “The Court’s decision was too narrow in scope, and we still have a long way to go before public employees can enjoy all benefits of free speech, including when public employees have the courage to stand up and speak out against corruption on the job and be the whistleblowers the public and community need them to be.”
Thursday’s unanimous decision makes the Court’s intent more clear: Public employees, including NEA’s nearly 3 million members and millions more other government workers, should not have to choose between “the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs,” wrote Justice Sotomayor.