Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), is a United States Supreme Court decision on the free speech rights of public employees. The Court held unanimously in favor of a schoolteacher fired for her critical remarks in conversations with her principal. Justice William Rehnquist wrote the opinion, with a short concurrence by John Paul Stevens.
The petitioner, Bessie Givhan, had believed that various policies and practices of the newly integrated Western Line School District in Mississippi were meant to sustain school segregation. In private meetings with her new principal, she persistently complained about this. The principal in turn recommended the district not rehire her, citing those conversations as well as some other issues. She joined the ongoing desegregation lawsuit as an intervenor, alleging that her First and Fourteenth Amendment rights to free speech and due process had been violated. The district court hearing the case agreed, but then the Fifth Circuit reversed that decision, holding that since she had not spoken publicly she was not entitled to constitutional protection, distinguishing her case from two other recent decisions in which the Supreme Court had ruled in favor of non-tenured teachers let go by their districts following critical statements by noting that in those cases, the criticism had been expressed in a public context.
Rehnquist's opinion rejected that distinction, calling the Fifth Circuit's reading too narrow. He further rejected its claim that Givhan had forced herself on an unwilling listener, since the principal had invited her in. Since the district had cited other, potentially permissible reasons for its action, the Court remanded the case to the district court to apply the Mt. Healthy test, from one of the other two cases involving teachers, and determine if the district had adequate reason to fire her other than the speech. Three years later, the lower court found that it did not, and ordered Givhan reinstated after a 12-year absence.
The Court has not had to significantly revisit the holding since then, and it has not been subject to much commentary or legal analysis. Four years later, in Connick v. Myers, its next case on the free speech rights of public employees, it began to limit Givhan and its predecessors by sketching out a test for whether the employee's speech was on a matter of public concern. In the early 21st century, its holding in Garcetti v. Ceballos, that speech made by employees pursuant to their job duties was not protected, appeared to some to complicate Givhan although the Court said it would not.
Underlying dispute
An African American, Bessie Givhan began teaching junior high school-level English at the all-black Norma O'Bannon School in Greenville, Mississippi, in 1963. As with other school districts in the South in the wake of the Supreme Court's 1955 Brown v. Board of Education decision, a lawsuit had been brought to desegregate schools in the state. In the middle of 1970, the schools in the Greenville area were formally integrated per the Supreme Court's order in Alexander v. Holmes County Board of EducationAlexander v. Holmes County Board of Education, that Southern schools desegregate immediately. She was reassigned to Riverside High School in Avon, away.
At the beginning of the 1971 school year she was transferred again, to Glen Allan High School, near Avon. Years later she described Glen Allan as a "stepchild" within the newly created Western Line Consolidated School District. With a larger proportion of black students and faculty than the other two high schools in the new district, it was short of fundamental resources compared to them. "You could not compare [them]", she recalled in 2006.
She complained frequently to the principal, a white former teacher named James Leach. "I requested a pointer for my blackboard and an eraser, things of this sort that I needed as a teacher," she said. This did not endear her to Leach or the district administration. "I was labeled 'hostile' and 'unreasonable.'" At the end of the year she was informed that her contract would not be renewed. Leach told the superintendent that although she was "a competent teacher" she often had "an insulting and hostile attitude" and made "petty and unreasonable demands."Ayers v. Western Line Consol. Sch. Dist., 555 F.2d 1309, 1312 (5th Cir., 1977) She insisted that she be told why, and in a letter to her the district cited her refusal to administer standardized tests, her refusal to cooperate with the administration and an "antagonistic and hostile attitude ... throughout the school year."Givhan v. Western Line Consolidated School District,
In lower courts
Givhan's case was heard first in federal district court, as part of the larger desegregation action against the school district. After it ruled in her favor, the school district appealed and won a partial reversal.
District court
Givhan joined the ongoing lawsuit in federal court for the Northern District of Mississippi over the integration of the school districts within its jurisdiction as an intervenor.Singleton et al v. Jackson Municipal Separate School District et al, 419 F.2d 1211 (5th Cir., 1970) She alleged that her dismissal violated not only the terms of that case, which required that the district develop nonracial objective criteria for the retention of teachers and staff, something which it had failed to do, but her own rights to free speech and due process under the First and Fourteenth amendments.
During the two-day bench trial, the district offered other reasons that it claimed justified her dismissal, not all of them speech-related, in addition to the standardized tests she did not administer (at the time, Givhan had argued that students had insufficient time to prepare for them). She had supposedly walked out of a meeting on the desegregation plan along with other teachers in 1969 and blown their car horns in an effort to disrupt the meeting; and in 1970 she and other teachers had threatened not to come to work after the midyear integration. Lastly, they said, she had helped a student conceal a knife he was in possession of during a search while at Riverside.Givhan, at 412n2.
Givhan admitted this last incident, but the district court found it to be unrelated to her dismissal as the superintendent did not seem to have considered it when deciding whether to retain it or not. The evidence on the other three allegations was inconclusive. The court found in her favor and ordered her reinstatement.Givhan, at 412.
Not only had her demands not been "constant" as the district claimed, the judge wrote "[t]he school district's motivation in failing to renew Givhan's contract was almost entirely a desire to rid themselves of a vocal critic of the district's policies and practices which were capable of interpretation as embodying racial discrimination." And under the Supreme Court's decision in Pickering v. Board of Education, in which it had ruled in favor of an Illinois teacher fired for writing a letter to the editor of a local newspaper critical of the school board,Pickering v. Board of Education, Givhan's complaints to Leach were protected by the First Amendment as speech on a matter of public concern.Ayers, 1314
The district appealed to the Fifth Circuit. Givhan's case was heard along with several other teachers challenging their dismissals in the absence of the criteria that were supposed to have been developed to govern them. Judges Walter Pettus Gewin, Paul Hitch Roney and James Clinkscales Hill were empaneled to hear their cases.
Appeals court
In 1977, six years after Givhan's dismissal, the court reached its decision. Gewin wrote for a majority that first considered, per the Supreme Court's holding earlier that year in Mt. Healthy City School District Board of Education v. Doyle, an Ohio case also involving a nontenured high school teacher fired over critical speech,Mt. Healthy City School District Board of Education v. Doyle, It required that the court consider whether, if there were other reasons for the adverse personnel action that did not violate the plaintiff's constitutional rights, they would have been enough to justify it.
Gewin was skeptical. "Appellants seem to argue that the preponderance of the evidence shows that the same decision would have been justified, but that is not the same as proving that the same decision would have been made," he wrote. The alleged incidents did not seem from the record to have been much of a factor in the district's decision at the time Givhan was let go. "Therefore appellants failed to make a successful 'same decision anyway' defense"Ayers, 1315.
However, the crucial question for Givhan was not that, it was whether her discussions with Leach enjoyed First Amendment protection. And on that score, Gewin began, "[n]ot all expression by a government employee is constitutionally protected." Pickering had held that the employee's constitutional interest had to be balanced against the government's interest in running the school system in an efficient and orderly manner. The court, he continued, had not found any of the cases in the party's briefs helpful in deciding whether it was, so it turned to "general free speech principles."Ayers, 1316–17.
In Pickering, Mt. Healthy and Perry v. Sindermann, the "trilogy" of cases brought by educators alleging unconstitutional retaliatory firings that served as precedent for Givhan, Gewin observed, the crucial factor had been that the plaintiffs' speech was public: Pickering had written a letter to the editor, Doyle had shared a memo with a local radio station that then reported its contents as news, and Sindermann had been a public critic of the state college's governing board. He found another recent case of a public employee's speech rights, Madison School District v. Wisconsin Employment Relations Commission, followed this pattern. There, the Court had held that the right of a nonunion teacher to speak at a public meeting prevailed over a provision of state labor law that forbade negotiations with anyone not in the bargaining unit.Madison School District v. Wisconsin Employment Relations Commission, Other prominent recent free-speech cases, Gewin also found, emphasized the public context of the speech entitled to protection.Ayers, 1317–18.
Further, Gewin wrote, two other recent cases established that the First Amendment did not give speakers the right to compel that their speech be heard. Rowan v. U.S. Post Office Dept. had upheld a postal regulation allowing customers to refuse to receive potentially obscene advertising or advertising for such products or periodicals.Rowan v. U.S. Post Office Dept. Lehman v. Shaker Heights had held that a public transit system had no obligation to carry political advertisements.Lehman v. Shaker Heights, Based on these two precedents, Gewin wrote:
These general principles lead us to conclude that teacher Givhan did not engage in constitutionally protected speech in her expressions to principal Leach. Neither a teacher nor a citizen has a constitutional right to single out a public employee to serve as the audience for his or her privately expressed views, at least in the absence of evidence that the public employee was given that task by law, custom, or school Board decision. There is no evidence here that Givhan sought to disseminate her views publicly, to anyone willing to listen. Rather, she brought her complaints to Leach alone. Neither is there evidence that the Board or Mississippi law delegated to Leach the task of entertaining complaints from all comers and that he discriminated in choosing to reject her complaints and not to rehire her because she impressed him into such service.Ayers, 1319.