couthouse-flag.JPGPublic employers in California have a powerful tool available to them in California’s anti-SLAPP statute, California Civil Procedure Code section 425.16.  This availability was confirmed in a recent case named Vargas v. City of Salinas.  Not much fanfare accompanied the Vargas decision, which issued last November.  But the Court of Appeal’s decision, on constitutional grounds, not to deny public employers access to this statute is significant. 

To understand why, let’s review what an anti-SLAPP motion is.  “SLAPP” stands for “strategic lawsuit against public participation.”  In general, SLAPP suits are understood to be lawsuits filed by a plaintiff to stifle a defendant’s exercise of free speech rights.  The term “strategic” more or less serves as a euphemism for “meritless.” SLAPP’s are considered bogus lawsuits designed only for the purpose of bludgeoning the defendant, and threatening those who wish to avoid being sued, into refraining from criticizing the plaintiff, or from making public statements contrary to the plaintiff’s interests.  Further, the common understanding is that a plaintiff who files a SLAPP knows that, even though it is meritless, it will take months if not years for a court or jury to make that determination.  By then, the defendant will have already been stigmatized by having a lawsuit pending for a considerable time, and been required to spend substantial attorney’s fees to dispose of it. 

California’s anti-SLAPP statute serves as a remedy by targeting these two harms caused by SLAPPS at an early time.  First, it remedies the lingering effect of the lawsuit by allowing the defendant at the very outset of the case to demand that the plaintiff present evidence showing that plaintiff has a “probability” of prevailing.  The court will dismiss the case if plaintiff cannot make this early showing.  Second, the statute alleviates the financial harm to the defendant by requiring plaintiff to pay the defendant’s attorneys’ fees if the case is in fact dismissed pursuant to the statute.  

If your agency is sued, how can you determine if the lawsuit can be disposed of early under the anti-SLAPP statute?  This will depend initially on whether the lawsuit arises from what the statute defines as protected activity (i.e., the first step of the anti-SLAPP statute’s test).  The fairly broad definition is as follows – a lawsuit will be covered if it arises from any of the following by the defendant: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  

Items (1) and (2) of this definition are of particular importance to public agencies.  They encompass within the scope of the anti-SLAPP statute statements before or in connection with any “official proceeding authorized by law,” regardless of whether the statements relate to a matter of public interest.  An “official proceeding” can include an administrative proceeding, and also an investigation by a public agency in preparation for initiating such a proceeding.  For example, in Vanginderen v. Cornell University, a federal court in California found that anti-SLAPP protection applied to the Cornell University Department of Public Safety’s investigation into the plaintiff’s involvement in alleged thefts, because the investigation was preparatory to the potential initiation of official proceedings against the plaintiff. 

Continue Reading Anti-Slapp Motions As A Litigation Resource For Public Employers

This post was co-authored by Michael Blacher

Supreme-Court.jpgOn January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws.  That exception allows religious organizations, including religious schools, to make employment decisions affecting “ministers” without being subject to anti-discrimination laws.  The ministerial exception is a judicial creation rooted in the First Amendment’s Free Exercise and Establishment clauses, and has been applied for many years by federal and state courts. 

Most observers of the Court expected it to recognize the exception, as it did.  But the more difficult question was how broadly the Court would view the exception.  That is, who qualified as a “minister?”  The Hosanna-Tabor case involved not an actual “minister” – or priest, rabbi, or other individual with strictly religious duties – but a teacher at a religious school who instructed primarily on secular topics. 

The facts of Hosanna-Tabor are as follows (as reported in our earlier blog post of October 11, 2011 following oral argument in the case).  Hosanna-Tabor Evangelical Lutheran Church and School operates a church and an elementary school.  It has two types of faculty: (1) limited-term “lay” or “contract” teachers and (2) for-cause “called” teachers.  Called teachers must complete a course of religious study and receive a certificate of admission into the teaching ministry.  They receive the title of “commissioned minister.”

In 2000, Cheryl Perich began work as a contract teacher but shortly thereafter changed her status to a “called” teacher.  Her employment duties remained essentially the same.  She taught math, language arts, social studies, science, gym, art, and music.  However, Perich also taught a religion class four days per week, attended a chapel with her class once a week, and led her classes in prayer.

In 2004, Perich went out on disability leave.  The School Board ultimately offered Perich a “peaceful release” agreement wherein she would release claims against the School in return for a monetary payment.  When Perich refused and threatened legal action, however, the Board fired her.  It gave the religious reason (as the Supreme Court described it) that “her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”) for disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), and the EEOC decided to litigate the charge of retaliation on her behalf.  The district court determined that Perich was covered by the ministerial exception and granted summary judgment to the School.  But the U.S. Court of Appeals for the Sixth Circuit reversed.  It found that because most of Perich’s job duties did not have a religious character, and because her “primary” functions were secular, the ministerial exception did not apply. 

This week, on January 11, 2012, the U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, held that the ministerial exception did apply.  The opinion began its discussion by describing that both of the “religion clauses” of the First Amendment (the Free Exercise clause and the Establishment clause) “bar the government from interfering with the decision of a religious group to fire one of its ministers.”  The opinion then recited the history of government interference, or at times deliberate non-interference, in religious organizations’ employment decisions, from the Magna Carta through the Cold War.  The opinion uses this concise narration of history and case law as a prelude to its holding recognizing the existences of the exception.

After acknowledging the existence of a ministerial exception, the Court set about defining its breadth and limitations.  The Court’s noted that “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree.  We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”

Continue Reading Supreme Court Recognizes That The “Ministerial Exception” Under The First Amendment Precludes Retaliation Claim Brought Under The ADA

2012.png2012 promises to be a significant year for freedom of expression in America, not only because protest movements are expanding across the country in various forms, but also because 2012 is an election year.  And, it will not be just any election, but one involving a “show down” of forces that have railed against each other for years, with rising intensity.

The coming year will also bring significant developments in First Amendment law as it applies to public employers and to educators.  The following are six primary areas worth watching:

1.  Camping and “Occupying” as Protected First Amendment Activity:  Because some public educators are being asked to permit camping on their property as a form of protest, educators will have to watch closely for decisions in this area of the law in 2012.  The forcible removal of a number of occupied camps has led to litigation over the question of whether city actions, and the regulations on which those actions were based, violated the First Amendment.  Under Supreme Court precedent, symbolic conduct itself can qualify as expressive activity meriting First Amendment protection.  The Occupy movement and others have argued that camping on public property now constitutes a mode of expression that should be afforded heightened constitutional protection.  There is, however, already U.S. Supreme Court precedent, the 1984 decision Clark v. Community for Creative Non–Violence, providing that the government may prohibit overnight camping on public property even when the camping is for expressive purposes (in that case, to bring attention to the plight of the homeless).  This fall, a number of district courts addressing Occupy challenges have already applied Clark to enforce government restrictions on overnight camping determined to be content-neutral and reasonable.  Attorneys for protestors nevertheless continue to challenge government enforcement of such regulations, and, it can be argued, they now have more than twenty-five years of precedent since Clark to use to justify a different result consistent with that case’s reasoning.  Significant appellate decisions in this area will likely issue next year.

2.  First Amendment Protection for Falsehoods:  The U.S. Supreme Court will decide soon the unique case of United States v. Alvarez, which concerns the extent to which the First Amendment protects speech that is false.  Alvarez concerns the constitutionality of the Stolen Valor Act, which prohibits individuals among other things from falsely claiming they have won U.S. military distinctions.  The defendant, when speaking in his capacity as a water district board member, falsely boasted that he had received the Congressional Medal of Honor. He was subsequently convicted for violating the Stolen Valor Act.  The U.S. Court of Appeals for the Ninth Circuit (covering California) found that the statute did not pass a “strict scrutiny” standard of review under the First Amendment.  Some judges on the Ninth Circuit, however, expressed the view that the statute, in fact, is constitutional, primarily because speech that is false cannot have First Amendment protection.  They also reasoned that prohibiting false speech does not, except in narrow circumstances, have an excessive chilling effect on protected speech.  The Supreme Court recently decided to review this case. 

A holding by the Supreme Court that false speech can have direct or indirect First Amendment protection may prompt public employees to make free speech retaliation claims in more sets of circumstances.  For example, a broad Alvarez holding could inspire an employee disciplined for knowingly or recklessly wrong speech to claim the speech nevertheless has First Amendment protection precluding discipline, or that the agency rule at issue chills even truthful speech, under expansive Alvarez reasoning.  A clear holding by the Supreme Court that false speech as a general principle lacks constitutional protection would help rule out those types of claims, which in most cases would likely lack merit in any event given the substantial harm false statements can cause in work at public agencies and in schools.  

The Alvarez case is thought to present a close question, however.  For a vivid discussion of supposed First Amendment dangers in statutes like the Stolen Valor Act, see Chief Judge Kozinksi’s concurrence in the Ninth Circuit’s denial of rehearing, which invokes the specter of the “truth police” and lists scenarios in which a “utopia” that allowed criminal prosecution of any falsehood would be “terrifying.”  The U.S. Supreme Court oral argument next year and the Court’s opinion will receive substantial attention from academics, lawyers, the press, and the public. 

3.  The Definition of “Official Duties” for Purposes of Public Employee Free Speech Claims:  Federal courts of appeal will probably also provide a more detailed analysis of what constitutes “official duties” for purposes of free speech claims by public employees.  In 2006, the U.S. Supreme Court held, in Garcetti v. Ceballos, that a public employee cannot assert a free speech claim against his or her employer if the speech at issue was rendered pursuant to “official duties.”  Since 2006, courts across the country have developed sometimes conflicting standards for applying Garcetti.  Some courts, notably the Second Circuit (encompassing New York), have recognized “official duties” to encompass basically anything the employee does in the work context to advance his or her generalized job goals.  In Weintraub v. Board of Education, the standard was considered to include a teacher’s wholly voluntary act of filing a grievance regarding working conditions.  This broad definition of “official duties” may be adopted in the next year in other circuits as well.  

Continue Reading The First Amendment In Public Employment And Education – Six Issues For The Year 2012

Protest.jpgThe rising intensity of political debate in recent years and this fall’s wave of OCCUPY protests nationwide have created unique challenges for public sector employers.  Employers are used to responding to mainstream political disputes in the workplace with the time-tested standby: “Republican or Democrat, it makes no difference, and please just go back to work.”  But now public employers have to contend with a different political landscape, a different level of emotional involvement by employees, and entirely new political causes.  One such cause is the Tea Party movement, one of whose central tenets is the need for a sharp decrease in government spending and in the overall role of public agencies themselves.  Second, on a different axis, the new OCCUPY movement attacks the private sector’s supposed excessive role in government.  This is at least the purpose as articulated by some of the movement’s endorsers, such as film maker Michael Moore, former New York Times writer Christopher Hedges (who quotes literary figures like Albert Camus and W.B. Yeats in support of his economic arguments), and even Harvard law professor Lawrence Lessig (in his new book “Republic, Lost”).  Significantly, although the OCCUPY target for reform is the private sector, it is clear the public sector has had to bear the brunt of its physical effects.  The tents and protests are typically on public property, with City police forces having to dedicate substantial resources to watching out for and responding to any disturbances, and in a few cases to taking even more drastic action.

As to employment law as well, all of this corresponds to increased pressure on public employers to address issues raised by increasing and more intense political activities by employees, both at the workplace and outside on personal time, sometimes through organized protest activities.

How is a public employer to handle increased employee work time spent discussing or even arguing about political issues?

How is a public employer to deal with employees who engage in “cubicle wars” by posting dueling ideological cartoons and slogans at their workplaces?

How does a City employer respond, if at all, to employees who actively participate in organized protests on public property and identify themselves to the media as City employees – while at the same time the City’s own police force is struggling to maintain order in the protests?

Finally, how does a public sector employer respond to the contentions of a discharged young manager who claims that the employer’s reason for the firing was a pretext, and that the real reason was the employee’s actions in advancing ideological goals adverse to the agency?

The answers to many of these questions will come from California statutory laws.  Here are some of them.  As can be seen, most reflect the need to create viewpoint-neutral rules that address the scenarios in advance.

Continue Reading New Political Causes, OCCUPY Protests, And Public Employers

This post was co-authored by Michael Blacher

God said “Be fruitful and multiply.”  But does that make a math teacher at a religious school a “minister?”  The United States Supreme Court will soon decide.

On October 5, 2011, the U.S. Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

The U.S. Court of Appeals for the Ninth Circuit, in Johnson v. Poway Unified School District, yesterday issued a decision that answers numerous questions bearing on the First Amendment free speech rights of high school teachers.  At the core of Johnson is the extent to which high school teachers’ expression to students in the course of instruction is protected by the First Amendment.

The facts of Johnson are as follows.  The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher’s choosing.  Examples included anti-war materials and posters of rock musicians Nirvana, Bruce Springsteen, and the Beatles.  Some of the materials appeared to pertain to religion, including: a 35 to 40-foot long string of Tibetan prayer flags with writings in Sanskrit and images of Buddha; a poster of John Lennon and the lyrics to the song “Imagine” (which at one point asks listeners to imagine a world with “no religion”); a poster of Buddhist leader the Dalai Lama; and posters of Muslim minister Malcolm X.

Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall.  One, striped in red, white and blue, contained the phrases: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee.”  A second banner quoted from the Declaration of Independence by stating “All Men Are Created Equal, They Are Endowed By Their Creator,” and placed the word “Creator” in all uppercase letters.  Johnson had taught at the school for 30 years.  The first banner had been in his classroom for 25 years, and the second for 17 years.

In 2007, the District, concerned about a violation of principles of separation of church and state ordered that Johnson remove the banners.  Johnson sued alleging his First Amendment free speech rights had been violated. 

The trial court agreed with Johnson, and granted his motion for summary judgment.  It did so by applying First Amendment “forum analysis,” specifically by determining that once the District had allowed teachers free reign to express themselves through posters and other expression on their classroom walls, the District could not then pick and choose what teachers could express. 

Continue Reading The Ninth Circuit Decides “Religious Banners” Case On First Amendment Rights Of Public School Teachers

Classroom.pngIf you were a high school teacher, what posters and inspirational items would you put up in your classroom?  What if at your school, “no posters” was not an option, and you were expected to make some personal statement to your students and peers?  The next question you may have to ask is what are the limits your employer can place on what you say?  What rights does the administration itself have in this scenario? 

The U.S. Court of Appeals for the Ninth Circuit is considering this very question in Johnson v. Poway Unified School District, a case that could provide answers not only to this question but to a number of others bearing on what First Amendment free speech rights teachers possess.  The Court of Appeals heard oral argument on May 5, 2011, and will probably issue a decision soon.

The facts of Johnson are as follows.  The Poway Unified School District allowed teachers to place posters and other materials on the walls of their classrooms conveying messages completely of the individual teacher’s choosing.  Examples included anti-war materials and posters of rock musicians Nirvana, Bruce Springsteen, and the Beatles.  Some of the materials appeared to pertain to religion, including: a 35 to 40-foot long string of Tibetan prayer flags with writings in Sanskrit and images of Buddha; a poster of John Lennon and the lyrics to the song “Imagine” (which at one point asks listeners to imagine a world with “no religion”); a poster of Buddhist leader the Dalai Lama; and posters of Muslim minister Malcolm X. 

Bradley Johnson, a math teacher, maintained in his classroom two banners, each approximately seven feet wide and two feet tall.  One, striped in red, white and blue, contained the phrases: “In God We Trust,” “One Nation Under God,” “God Bless America,” and “God Shed His Grace On Thee.”  A second banner quoted from the Declaration of Independence by stating “All Men Are Created Equal, They Are Endowed By Their Creator,” and placed the word “Creator” in all uppercase letters.  Johnson had taught at the school for 30 years.  The first banner had been in his classroom for 25 years, and the second for 17 years. 

There was no evidence of any student complaints about Johnson’s banners.  A fellow math teacher in 2006, however, asked the administration why Johnson was allowed to have them.  The administration, apparently concerned that the banners infringed principles of separation of church and state, followed up and ultimately ordered Johnson to take the banners down.  He responded by bringing a federal court lawsuit, arguing that the administration’s order infringed his free speech rights and other rights.  The trial court agreed with Johnson, and granted his motion for summary judgment. 

The Court of Appeals must now make a choice that may have widespread effects on how to interpret the free speech rights of educators, and how far management rights in this area extend. 

Continue Reading The Ninth Circuit And The “God Banners” Case”

This guest post was authored by David Urban

The United States Supreme Court just added another important chapter to its continuing interpretation of the First Amendment rights of public employees.  In Borough of Duryea v. Guarnieri, decided Monday, June 20, 2011, the Court held that public employees cannot assert retaliation claims based on the