Students Walk Out at UCSD as Dismissal of TAs Raises Academic Freedom Concerns
May 30, 2007
Whereas this is a cause for concern regarding the academic environment for all graduate student employees; Whereas this may set a dangerous precedent for the rights and role of graduate student employees in the larger UCSD community…the UCSD Graduate Student Association supports the immediate rehire of these two TAs.
Because, as UCSD TAs, Balthaser and Boehm are public employees, their protections under the First Amendment when speaking on matters of public concern must be evaluated under the standard first enumerated by the Supreme Court in Pickering v. Board of Education, 391 U.S. 563 (1968). In Pickering, the Court held that while teachers as public employees do not enjoy the complete protection of the First Amendment because of the government’s “interests as an employer in regulating the speech of its employees,” a balance must be struck between “the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id. at 568. If the teacher’s speech “neither [was] shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally,” then “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public,” and the teacher’s speech enjoys First Amendment protection. Id. at 568, 573.
Applied to the facts at hand, the Pickering standard shows Balthaser and Boehm’s criticism of the DOC to be protected speech. Balthaser and Boehm have demonstrated that their ongoing criticism neither impedes their performance in the classroom nor interferes with the operation of the DOC or Thurgood Marshall College generally. After all, they publicly criticized the DOC at the national conference they held at Thurgood Marshall during the Spring 2005 term. Despite the fact that the criticism earned Balthaser and Boehm a verbal reprimand, the DOC administration still saw fit to award Boehm a Distinguished Teaching Award in 2006. Additionally, Boehm’s most recent “Evaluation of Teacher Performance” report, signed by Dr. Shragge and Assistant Director Pamela S. Wright at the conclusion of the Winter 2007 term, describes Boehm as “exemplary,” a “passionate advocate for DOC” and a “positive force within the college community.” Similarly, Balthaser’s Winter 2007 evaluation states that he “continues to be a highly valued asset to the DOC program.”
Pickering’s “public concern” standard was recently revisited by the Supreme Court in Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006). In Garcetti, the Court held that the government, as employer, has authority to impose restrictions on “speech that has some potential to affect the entity’s operations” and that statements made by employees “pursuant to their official duties” do not enjoy First Amendment protection as otherwise dictated by Pickering. Id. at 1961. (Emphasis added.) However, in so holding, the Court explicitly acknowledged the possibility that “that expression related to academic scholarship or classroom instruction”—precisely the speech at issue here—may “implicate additional constitutional interests…not fully accounted for by this Court’s customary employee-speech jurisprudence.” Id. at 1962. It is also important to note that the Court in Garcetti nevertheless reiterated Pickering’s holding insofar as it represented a rejection of an attempt by school administrators to “limi[t] teachers’ opportunities to contribute to public debate.” By discontinuing the employment of Balthaser and Boehm because of their speech on a matter of public concern, Dr. Shragge has impinged upon the free expression rights owed to Balthaser and Boehm under the First Amendment and has unquestionably sought to “limi[t] [their] opportunities to contribute to public debate.”
[T]he facts strongly indicate that Dr. Shragge chose not to rehire Balthaser and Boehm solely because of their repeated criticisms of the DOC program. UCSD’s actions represent a shameful attempt to silence respected TAs whose views do not accord with those of the administration… By choosing not to rehire Balthaser and Boehm for the sole offense of publicly stating their disagreement with UCSD’s policies and practices, you have sent the message that dissenting opinions are intolerable, and that they alone may block one’s prospects for employment within the university.