Givhan v. Western Line Cons. Sch. Dist., 439 U.S. 410 (1979)

CERTIORARI TO THE UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

Syllabus

After petitioner was dismissed from her employment as a teacher, she intervened in a desegregation action against respondent School District, seeking reinstatement on the ground, inter alia, that her dismissal infringed her right of free speech under the First and Fourteenth Amendments. In an effort to justify the dismissal, the School District introduced evidence of, inter alia, a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." Concluding that the primary reason for the dismissal was petitioner’s criticism of the School District’s practices and policies, which she conceived to be racially discriminatory, the District Court held that the dismissal violated petitioner’s First Amendment rights and ordered her reinstatement. The Court of Appeals reversed, holding that, under Pickering v. Board of Education, 391 U.S. 563; Perry v. Sindermann, 408 U.S. 593; and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, petitioner’s complaints and opinions were not protected by the First Amendment because they were expressed privately to the principal, and because there is no constitutional right to "press even `good’ ideas on an unwilling recipient."

Held: A public employee does not forfeit his First Amendment protection against governmental abridgment of freedom of speech when he arranges to communicate privately with his employer, rather than to express his views publicly. Pp. 413-417.

(a) Pickering, Perry, and Mt. Healthy do not support the Court of Appeals’ conclusion that private expression is unprotected by the First Amendment. The fact that each of those cases involved public expression by the employee was not critical to the decision. Pp. 414-415.

(b) Nor is the Court of Appeals’ view supported by the "captive audience" rationale, since the principal, having opened his office door to petitioner, was hardly in a position to argue that he was the "unwilling recipient" of her views. P. 415.

(c) Respondents’ Mt. Healthy claim, rejected by the Court of Appeals, that the decision to terminate petitioner would have been made even if her encounters with the principal had never occurred called for a factual determination that could not, on the record, be resolved by that court, since it was not presented to the District Court, Mt. Healthy having been decided after the trial in this case. Pp. 416-417.

555 F.2d 1309, vacated in part and remanded.

REHNQUIST, J., delivered the opinion for a unanimous Court. STEVENS, J., filed a concurring opinion, post, p. 417.