Waters v. Churchill: Personal Grievance or Protected Speech, Only a Reasonable Investigation Can Tell--The Termination of At-Will Government Employees

  Introduction

The constitutionally protected right of free speech was virtually non-existent for government employees prior to the 1950s.⁽¹⁾ The second half of this century, however, has proved fruitful for those government employees seeking recognition of their First Amendment rights.⁽²⁾ Although there exists an interesting history of the recognition of such rights, the scope of this Comment is confined to a discussion of Waters v. Churchill⁽³⁾ and its predecessors which lay a foundation for an understanding of this particular area of law. Consequently, this Comment does not address the development of the law from its very beginnings.⁽⁴⁾

This Comment begins, in Part II, with a discussion of Pickering v. Board of Education,⁽⁵⁾ Perry v. Sindermann,⁽⁶⁾ Mt. Healthy City School District Board of Education v. Doyle,⁽⁷⁾ and Connick v. Myers.⁽⁸⁾ The aforementioned cases were all instrumental in formulating what has become the test for determining whether the speech in question in a particular case is constitutionally protected.⁽⁹⁾ Although Waters was not a case in which the Court attempted to reformulate the constitutional test,⁽¹⁰⁾ the cases mentioned above provide the historical perspective necessary to a discussion of the free speech rights of government employees.

Part III of this Comment outlines the facts and procedural history of Waters, and provides a detailed account of the differing opinions in this plurality decision. Part IV of this Comment analyzes the Waters decision which, in essence, granted a form of procedural rights to non-contractual government employees. The decision also finds significance in what the Court's plurality opinion set out as the factual basis for applying the constitutional test for determining whether speech is protected.⁽¹¹⁾ The Court held that the facts, as found by the employer as the result of a reasonable investigation, should establish the factual basis upon which the court will apply the constitutional test.⁽¹²⁾ Until now, courts have left disputed questions of fact, relating to the actual content of the speech, in the hands of a neutral factfinder.⁽¹³⁾ Moreover, courts have only required that an employer's basis for termination was that it was not in retaliation for the employee speaking on matters that were constitutionally protected.⁽¹⁴⁾ The significance of the Waters decision is threefold. First, it creates a procedural safeguard for at-will government employees by entitling them to the benefit of a reasonable investigation before they are actually terminated.⁽¹⁵⁾ Second, it contemporaneously assigns an affirmative duty to public employers to reasonably investigate cases of possible insubordination before taking any action in order to avoid constitutional liability.⁽¹⁶⁾ Ostensibly, this eliminates the standard mentioned above.⁽¹⁷⁾ That is, the Court now requires more than a mere demonstration by the public employer that the termination was not retaliatory. Third, the opinion leaves open many questions that may need to be resolved before lower courts can apply the reasonableness standard set forth in Waters with any semblance of continuity.⁽¹⁸⁾

  Fundamental Cases Regarding Free Speech of Government Employees

A.  Pickering v. Board of Education:⁽¹⁹⁾ Laying the Foundation for Public Employee Speech

Pickering was the first case in which the Supreme Court addressed the issue of how much "constitutional freedom public employees must be given and the extent of any permissible restrictions on the exercise of such rights."⁽²⁰⁾ In Pickering, the appellant, Marvin L. Pickering, brought suit against the Board of Education (Board or School Board) after he had been dismissed from his position as a teacher in Will County, Illinois.⁽²¹⁾ He had been fired for sending a letter to a local newspaper criticizing the School Board and the superintendent of schools for the way they had handled "proposals to raise new revenue for the schools."⁽²²⁾

After Pickering's dismissal, the School Board held a hearing at which it "charged that numerous statements in the letter were false and that the publication of the statements unjustifiably impugned the `motives, honesty, integrity, truthfulness, responsibility, and competence' of both the Board and the school administration."⁽²³⁾ The Board further charged that the false statements were disruptive to the community and, hence, found the dismissal of Pickering justifiable.⁽²⁴⁾

The Illinois courts that reviewed the case confined their inquiry to whether, based on the evidence, the School Board "could [have] reasonably conclude[d] that [Pickering's] publication of the letter was `detrimental to the best interests of the schools.'"<sup>(25)</sup> These courts summarily rejected Pickering's argument that his drafting and subsequent publication of the letter were protected under the First Amendment of the United States Constitution.<sup>(26)</sup> This rejection was grounded in the belief that Pickering's "acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools `which in the absence of such position he would have an undoubted right to engage in.'"⁽²⁷⁾

When the United States Supreme Court addressed the case, it was quick to point out that the holding of the Illinois Supreme Court suggested that teachers would be "compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens" on the sole grounds of their employment.⁽²⁸⁾ The Court went on to note that such a holding was in direct conflict with prior cases that unequivocally rejected such a premise.⁽²⁹⁾ In deciding the extent to which a government employee is able to exercise those rights he or she would enjoy as a citizen, the Court formulated a balancing test which took into consideration the concerns of both employee and employer.⁽³⁰⁾ Specifically, the Court held that courts must arrive at a "balance 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."⁽³¹⁾

In formulating this balancing test, the Court declined to "lay down a general standard against which all such statements may be judged."⁽³²⁾ Despite the Court's unwillingness to lay down such a general standard, it did feel inclined to "indicate some of the general lines along which an analysis of the controlling interests should run."⁽³³⁾

The first of these controlling interests noted by the Court was whether the statements made by Pickering were in any way directed toward "any person with whom [Pickering] would normally be in contact in the course of his daily work as a teacher."⁽³⁴⁾ After an examination of the letter, the Court was satisfied that it was not directed at any such particular individual; thus, "no question of maintaining either discipline by immediate superiors or harmony among coworkers [was] presented."⁽³⁵⁾ This maintenance of harmony in the workplace was the second of the Court's controlling interests outlined in the opinion.⁽³⁶⁾ The third guideline announced by the Court was a measurement of the amount of loyalty needed in the working relationship to ensure its proper functioning.⁽³⁷⁾ The Court held that the relationship between teacher and School Board was not one that needed a great deal of loyalty in order for the system to function properly.⁽³⁸⁾ Accordingly, the Court, in deciding that Pickering's statements were substantially correct and on matters of public concern,⁽³⁹⁾ unequivocally rejected the Board's claim that such comments were grounds for dismissal.⁽⁴⁰⁾

The Court also addressed what it found to be false statements made by Pickering.⁽⁴¹⁾ The Court held that the statements were false in a manner "perfectly consistent with good-faith error" and that nothing in the record reflected "anything other than carelessness or insufficient information [which] was responsible for their being made."⁽⁴²⁾ The Court explained that because the false statements had addressed matters of public concern and did not interfere with the performance of Pickering's duties as a teacher or with the regular operation of the schools,⁽⁴³⁾ the Board's interests in running an orderly and efficient administration had not been affected.⁽⁴⁴⁾

In sum, the Court held that "absent proof of false statements knowingly or recklessly made by [Pickering], a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment."⁽⁴⁵⁾

B.  Perry v. Sindermann:⁽⁴⁶⁾ Lack of Contract Rights and the Pickering Balance

In 1972, the Supreme Court was faced with yet another case dealing with the free speech rights of a teacher.⁽⁴⁷⁾ In Perry the Court addressed the issue of whether a lack of a contractual or tenure right to re-employment would defeat a claim that nonrenewal of a contract violated the First and Fourteenth Amendments.⁽⁴⁸⁾ In this case, Robert Sindermann, a professor at Odessa Junior College,⁽⁴⁹⁾ was not awarded a renewal of his contract after becoming involved in public disagreements about the policies of the College's Board of Regents.⁽⁵⁰⁾ The primary disagreement was Sindermann's identifying himself with a group that advocated the elevation of Odessa to a four-year institution--"a change opposed by the [Board of] Regents."⁽⁵¹⁾

In May 1969, when Sindermann's one-year contract terminated, the Board of Regents voted against offering him a new contract for the following year.⁽⁵²⁾ The Board of Regents did not provide Sindermann with an official statement of its reasons for not renewing his contract, nor did it afford him the opportunity to have a hearing to challenge the Board's action.⁽⁵³⁾

Sindermann brought suit against the Board of Regents alleging, inter alia, "that the Regents' decision not to rehire him was based on his public criticism of the policies of the college administration and thus infringed on his right to freedom of speech."⁽⁵⁴⁾ Sindermann also alleged that the Board of Regents had violated his procedural due process rights by failing to provide him an opportunity to be heard.⁽⁵⁵⁾ The Board of Regents and the president of the college denied that their decision not to renew Sindermann's contract had been made in retaliation for his public criticism.⁽⁵⁶⁾ They also argued that they were under no obligation to provide Sindermann a hearing.⁽⁵⁷⁾

In addressing the issue of whether the lack of a re-employment right bars constitutional protection for government employees, the Court drew heavily upon the importance of the freedoms protected by the Constitution, stating:

For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Such interference with constitutional rights is impermissible.⁽⁵⁸⁾

The Court went on to illustrate where such a principle had been applied⁽⁵⁹⁾ and noted that the Court had "applied the principle regardless of the public employee's contractual or other claim to a job."⁽⁶⁰⁾

With the foregoing principle in mind, the Court held that Sindermann's lack of a right to re-employment was "immaterial to his free speech claim."⁽⁶¹⁾ The Court also noted that it had twice before held that the exercise of a public employee's First and Fourteenth Amendment rights could not form the basis for the nonrenewal of an employment contract.⁽⁶²⁾

In sum, the Court held that the nonexistence of a re-employment right has no effect on a claim alleging nonrenewal of a contract based on the employee exercising his or her First Amendment rights.⁽⁶³⁾ Notwithstanding this holding, the Court recognized that there was a dispute whether Sindermann's contract was not renewed because of Sindermann's alleged insubordination.⁽⁶⁴⁾ The Court noted that if the nonrenewal was based on Sindermann's exercising of his right to free speech, he would have a "bona fide constitutional claim."⁽⁶⁵⁾ The Court cited the Pickering opinion and said that "this Court has held that a teacher's public criticism of his superiors on matters of public concern may be constitutionally protected and may, therefore, be an impermissible basis for termination of . . . employment."⁽⁶⁶⁾ The Court held that summary judgment had been granted improperly by the district court because a genuine issue of material fact had existed.⁽⁶⁷⁾

The second issue addressed by the Perry Court was whether Sindermann's lack of a re-employment right could effectively deny him a right to a hearing without violating the Due Process Clause of the Fourteenth Amendment.⁽⁶⁸⁾ When addressing the issue, the Court recited the holding of a case that had been decided earlier that same day.⁽⁶⁹⁾ The Court held as follows in Board of Regents of State Colleges v. Roth:⁽⁷⁰⁾

[T]he Constitution does not require opportunity for a hearing before the non-renewal of a nontenured teacher's contract, unless he can show that the decision not to rehire him somehow deprived him of an interest in "liberty" or that he had a "property" interest in continued employment, despite the lack of tenure or a formal contract.⁽⁷¹⁾

But what is needed to show deprivation of a liberty or property interest?⁽⁷²⁾

The evidence set forth by Sindermann, to prove that he had a property interest in re-employment, was that such interest was secured by a "binding understanding fostered by the college administration."⁽⁷³⁾ Although the school had no official tenure system, Sindermann alleged that a de facto tenure program arose out of a provision in the college's official Faculty Guide.⁽⁷⁴⁾ He further alleged that he had tenure under the provision.⁽⁷⁵⁾ Sindermann also claimed that reliance on guidelines set forth by the Coordinating Board of the Texas College and University System gave rise to a property interest in re-employment.⁽⁷⁶⁾ Essentially, the guidelines provided that a person employed by the system for seven or more years effectively had some degree of tenure.⁽⁷⁷⁾ Because Sindermann had been employed within the system for ten years, he argued that he should have had tenure under the provision.⁽⁷⁸⁾

Taking this evidence into account, the Court set out principles it had espoused earlier in Roth⁽⁷⁹⁾ on the issue of what constitutes a property interest.⁽⁸⁰⁾ The Court noted that property interests subject to due process "are not limited by a few rigid, technical forms."⁽⁸¹⁾ Rather, the Court stated, "`property' denotes a broad range of interests that are secured by `existing rules or understandings.'"⁽⁸²⁾ The Court further stated that interest in a benefit rises to the level of a property interest for purposes of due process, "if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing."⁽⁸³⁾

When applying these principles to the facts of Perry, the Court reasoned that absence of an "explicit contractual provision" of tenure does not foreclose the possibility that a property interest can arise by other means.⁽⁸⁴⁾ The Court analogized such an occurrence to the law of contracts where agreements may be implied if not set down in writing.⁽⁸⁵⁾ The Court held that Sindermann could have shown that he had a legitimate claim for job tenure, considering the amount of time he had been employed by the state system and the fact that the system had promulgated such guidelines.⁽⁸⁶⁾

Although the Court stated that proof of such a property interest would not have entitled Sindermann to reinstatement, it did hold that such proof would be grounds for requiring the college to hold a hearing at Sindermann's request.⁽⁸⁷⁾ Such a hearing would require a public employer, the college in Perry, to inform the employee of the reasons for the nonretention and allow the employee to challenge the sufficiency of the claims against him or her.⁽⁸⁸⁾

C.  Mt. Healthy City School District Board of Education v. Doyle:⁽⁸⁹⁾ A Mix of Protected and Unprotected Speech

In Mt. Healthy, the Court again addressed issues involving an untenured teacher, but was also faced with deciding how a mix of protected and unprotected speech affects an employee's rights and an employer's obligations.⁽⁹⁰⁾ The case arose out of the School Board's refusal to renew an untenured teacher's contract.⁽⁹¹⁾ Doyle, the untenured teacher, claimed the nonrenewal violated his First and Fourteenth Amendment rights.⁽⁹²⁾ The issues relating to the nonrenewal of Doyle's contract began when he was elected president of the Teacher's Association in 1969.⁽⁹³⁾ During Doyle's term as president, and during the following year when he served on the Association's executive committee, tensions arose between the Association and the Board of Education.⁽⁹⁴⁾ Beyond the issues arising out of Doyle's involvement with the Association, there were also instances involving Doyle and other school employees and teachers that were of consequence to the Board's decision not to renew his contract.⁽⁹⁵⁾

The Board did not renew Doyle's contract because he had called a local radio station regarding a memorandum relating to teacher dress and appearance, and because he had made an obscene gesture to two girls in the school cafeteria.⁽⁹⁶⁾ The nonrenewal of Doyle's contract occurred approximately one month after he had telephoned the radio station.⁽⁹⁷⁾ Upon learning that his contract had not been renewed, Doyle requested a statement outlining the Board's reasons for its decision.⁽⁹⁸⁾ The Board replied with a "statement citing `a notable lack of tact in handling professional matters which leaves much doubt as to your sincerity in establishing good school relationships'" as the grounds for its decision of nonrenewal.⁽⁹⁹⁾

When addressing the issues presented in Mt. Healthy, the Court reaffirmed its decisions in Board of Regents v. Roth⁽¹⁰⁰⁾ and Perry v. Sindermann⁽¹⁰¹⁾ by stating that Doyle's constitutional claims were not defeated by his lack of tenure and that a claim for reinstatement would be valid if the Board's decision had been prompted by constitutionally protected speech.⁽¹⁰²⁾ The Court stated that determining whether speech by a government employee is constitutionally protected, is a matter of balancing the interests of both the employee and the employer⁽¹⁰³⁾ as was outlined in Pickering v. Board of Education.⁽¹⁰⁴⁾ Based upon these principles, the Court affirmed the district court's holding that Doyle's communication with the radio station was constitutionally protected speech.⁽¹⁰⁵⁾

Although the Court agreed that the incident involving the radio station was constitutionally protected, it did not agree with the district court's decision that Doyle was to be reinstated with backpay.⁽¹⁰⁶⁾ Mainly, the Court was unsure of the reasoning used by the district court in reaching its decision.⁽¹⁰⁷⁾ The district court reasoned that because Doyle's constitutionally protected conduct regarding the radio station "played a `substantial part' in the decision of the Board not to renew [his contract,]" he was entitled to reinstatement.<sup>(108)</sup> The Court found such reasoning especially misguided because the district court had also stated that "`the Board and the Superintendent were faced with a situation in which there did exist in fact reason . . . independent of any First Amendment rights or exercise thereof, to not extend tenure.'"⁽¹⁰⁹⁾ On this background, the Court set out to decide the issue of whether nonrenewal of a contract based on both protected and unprotected speech was constitutionally permissible, where the protected speech was a substantial part of the reason for nonrenewal.⁽¹¹⁰⁾ The Court held that it was constitutionally permissible based on the facts as presented in the case.⁽¹¹¹⁾

In coming to its conclusion, the Court began with an examination of the district court's "substantial part" theory.⁽¹¹²⁾ The Court first noted that because Doyle had no tenure, renewal of his contract could have been denied without a reason--there was not even a state-law requirement of cause.⁽¹¹³⁾ The Court reasoned that the most plausible interpretation of the district court's statement that the Board had a basis for nonrenewal independent of the protected speech, was that it would be necessary for the Board to prove that it would not have renewed Doyle's contract even if the protected speech had never come to its attention.⁽¹¹⁴⁾ The Court rejected a mere substantial part test because it feared such a test would only benefit employees.⁽¹¹⁵⁾ Illustrating this possibility, the Court stated:

A rule of causation which focuses solely on whether protected speech played a part, "substantial" or otherwise, in a decision not to rehire, could place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.⁽¹¹⁶⁾

The Court found difficulty with the district court's rule because such a rule would render any adverse employment decision violative of the Constitution if that decision were made by employers who were aware of protected conduct and, in fact, partly based their decision on that conduct even though the same decision would have been reached had the protected conduct not occurred.⁽¹¹⁷⁾ Because this rule would put the employee in a better position, the Court stated that "[t]he constitutional principle at stake is sufficiently vindicated if such an employee is placed in no better position than if he had not engaged in the conduct."⁽¹¹⁸⁾ Accordingly, the Court set out to formulate a more constitutionally viable test of causation for such cases that present instances of protected and unprotected conduct.⁽¹¹⁹⁾

The test the Court held to be proper was one that would "protect[] against [an] invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights."⁽¹²⁰⁾ The test was based on the burden of proof that would have to be met by both parties.⁽¹²¹⁾ First, the employee would have the burden of proving that his conduct was both constitutionally protected and a "motivating factor" behind the decision of the employer in not rehiring.⁽¹²²⁾ Once the employee met this burden, the burden would then shift to the employer to prove that it would have reached the same decision despite the protected conduct.⁽¹²³⁾

D.  Connick v. Myers:⁽¹²⁴⁾ What is a Matter of Public Concern Anyway?

Fifteen years after the Pickering⁽¹²⁵⁾ decision, the Supreme Court defined the phrase "matter of public concern."⁽¹²⁶⁾ The aggrieved employee in the case, Sheila Myers, was an assistant district attorney in New Orleans who had been working for over five years competently trying criminal cases.⁽¹²⁷⁾ Myers was fired by Harry Connick, the district attorney, because she had circulated a questionnaire around the office concerning matters of office transfer policy--an act of insubordination according to Connick.⁽¹²⁸⁾

The events leading to Myers's circulation of the questionnaire began in October 1980.⁽¹²⁹⁾ Myers had been informed by Connick that she was to be "transferred to prosecute cases in a different section of the criminal Court."⁽¹³⁰⁾ Myers was vehemently opposed to the transfer.⁽¹³¹⁾ Myers expressed her opposition to the transfer to her supervisor, Dennis Waldron.⁽¹³²⁾ The night of her conversation with Waldron, Myers went home and wrote out a questionnaire that she intended to distribute around the office which addressed certain office policies and other related matters.⁽¹³³⁾

When Myers returned to work the following morning, she met briefly with Connick and told him that she would consider the transfer.⁽¹³⁴⁾ Fifteen assistant district attorneys in the office then received the questionnaire from Myers.⁽¹³⁵⁾ Waldron learned of Myers's activities and quickly telephoned Connick saying that Myers was creating a "`mini-insurrection' within the office."⁽¹³⁶⁾ When Connick returned to the office, he told Myers "that she was being terminated because of her refusal to accept the transfer."⁽¹³⁷⁾ Connick further informed Myers that "her distribution of the questionnaire was considered and act of insubordination."⁽¹³⁸⁾ Based upon the occurrences, Myers filed suit for wrongful termination grounded on the exercise of her constitutionally protected right of free speech.⁽¹³⁹⁾

In addressing the case, the Supreme Court validated the Pickering balancing test as the proper guideline, but held that the test had been misapplied in the lower courts.⁽¹⁴⁰⁾ The Court believed that the test had been misapplied because the lower courts had erroneously assumed that Myers's questionnaire, because it "relate[d] to the effective functioning of the District Attorney's Office[,]" was consequently directed towards matters of public concern.⁽¹⁴¹⁾ After considering Pickering, its predecessors, and its progeny, the Court concluded that if the questionnaire could not properly be defined as a matter of public concern, no balancing of interests would be necessary.⁽¹⁴²⁾ Because the Court believed that there were no extant guidelines to determine such an issue, it set out to formulate guiding principles of its own to determine that speech which can be fairly classified as being directed at a matter of public concern.⁽¹⁴³⁾

Before setting forth its guidelines for determining whether employee speech addresses a matter of public concern, the Court stated that:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.⁽¹⁴⁴⁾

The guidelines set out by the Court to determine whether an employee's speech addresses a matter of public concern--thereby warranting a Pickering inquiry--focused on three concepts: content, form, and context.⁽¹⁴⁵⁾ With these considerations in mind, the Court concluded that only one of the questions posed by Myers was related to a matter of public concern.⁽¹⁴⁶⁾ The one question that the Court did determine to be directed at a matter of public concern was whether employees ever felt pressured into working on political campaigns for office-supported candidates.⁽¹⁴⁷⁾ It was to this element of the questionnaire that the Court applied the Pickering balancing test.⁽¹⁴⁸⁾

The Court began with the presumption that "a wide degree of deference to the employer's judgment in employment decisions is appropriate when the employment situation is characterized by close working relationships."⁽¹⁴⁹⁾ Additionally, the Court believed that an employer did not have to wait for actual disruption to occur before it took action.⁽¹⁵⁰⁾ This was especially true in cases like Connick, the Court stated, where the speech was more of private, rather than public, concern.⁽¹⁵¹⁾ The Court held that because Myers's survey involved mostly unprotected speech, was handed out in the office, and the questions were closely related to her own personal dispute, her interests did not outweigh those of her employer.⁽¹⁵²⁾ Accordingly, the court held that "Connick's unsupported assertions of disruption [were] sufficient to defeat Myers' claim of abridgement of constitutional rights."⁽¹⁵³⁾

  Waters v. Churchill⁽¹⁵⁴⁾

A.  History of the Case

1.  The Facts

On October 25, 1982, Cheryl Churchill was hired as a part-time obstetrics nurse by McDonough District Hospital (MDH), a public hospital located in Macomb, Illinois.⁽¹⁵⁵⁾ Approximately three years later, on September 16, 1985, Churchill began her full-time duties as an obstetrics nurse at MDH.⁽¹⁵⁶⁾ On January 27, 1987, Churchill's association with MDH summarily came to an end when she was discharged by the administration.⁽¹⁵⁷⁾ Churchill's discharge resulted from a culmination of events beginning with an exchange of words with her supervisor, Cynthia Waters, in August 1986 and ending with a conversation she had with another nurse, Melanie Perkins-Graham, during their dinner break on the evening of January 16, 1987.⁽¹⁵⁸⁾ The first four years of her employment at MDH went by without incident and Churchill received periodic employee evaluations reflecting standard or above-standard performance in all of approximately fifty ratings categories.⁽¹⁵⁹⁾ It was not until August 1986 that Churchill received negative comments from her superiors.⁽¹⁶⁰⁾

The first incident relating to Churchill's discharge occurred on August 21, 1986.⁽¹⁶¹⁾ During a caesarean section performed by Dr. Thomas Koch,⁽¹⁶²⁾ a "code pink"⁽¹⁶³⁾ was called and Churchill responded.⁽¹⁶⁴⁾ After the successful completion of the caesarean section, Churchill left the delivery room to check on one of her patients.⁽¹⁶⁵⁾ She returned to the delivery room shortly thereafter to complete documentation and other procedural duties.⁽¹⁶⁶⁾ While in the delivery room, Churchill was ordered by Cynthia Waters, her supervisor, to check on her other patient.⁽¹⁶⁷⁾ Churchill responded by commenting that she had recently checked the patient and by saying, "you don't need to tell me what to do."⁽¹⁶⁸⁾

As a result of the incident, Churchill was given a written warning for insubordination.⁽¹⁶⁹⁾ Churchill, not wanting "to make mountains out of molehills," made no written response to the warning, nor did she file a grievance in protest of it.⁽¹⁷⁰⁾ Throughout the fall of 1986, the relationship between Waters and Churchill deteriorated.⁽¹⁷¹⁾ This resulted in an evaluation of Churchill in December 1986 that, while showing her performance did meet the standards of MDH, included negative comments handwritten by Waters.⁽¹⁷²⁾

Although the incident in the delivery room may have laid the foundation for Churchill's ultimate discharge, it was a dinner break conversation that she had with Perkins-Graham that served as the impetus for discharging her.⁽¹⁷³⁾ The major thrust of the conversation was directed toward a cross-training policy that had been implemented by Kathy Davis, the vice president of nursing, in the spring of 1986.⁽¹⁷⁴⁾ Dr. Koch was present during the conversation which took place in the kitchen, located behind the main desk of the nurse's station in the obstetrics department.⁽¹⁷⁵⁾ Perkins-Graham informed Dr. Koch that she was a cross-trainee and that she was considering transferring to the obstetrics department.⁽¹⁷⁶⁾ The ensuing conversation centered on criticisms and comments about the cross-training policy by Churchill.⁽¹⁷⁷⁾

Jean Welty, a nurse, claimed to have overheard Churchill say that Kathy Davis was going to "`ruin the hospital.'"<sup>(178)</sup> Welty also heard Churchill suggest that "some aspects of the cross-training program might violate certain state regulations."<sup>(179)</sup> After Perkins-Graham expressed her reluctance to transfer because of some negative things she had heard about Waters, Welty recalled Churchill encouraging her to transfer saying, "Waters had a hard job but good intentions and . . . was sometimes moody."<sup>(180)</sup> Mary Lou Ballew, another nurse who heard only portions of the conversation, reported the incident to Waters.<sup>(181)</sup> Ballew's rendition of the story was that "Churchill took `the cross-trainee into the kitchen for a period of at least 20 minutes to talk about you [Waters] and how bad things [were] in OB in general.'"⁽¹⁸²⁾

As a consequence of the report made by Ballew, Waters informed Hopper and Davis about the situation and they decided to meet with Perkins-Graham to discuss the incident.⁽¹⁸³⁾ Davis met with Perkins-Graham on January 23, 1987.⁽¹⁸⁴⁾ During the course of their conversation, Perkins-Graham agreed that Churchill had said "unkind and inappropriate negative things about Cindy Waters and had said that things in general were not good in OB as a result of hospital administration policies."⁽¹⁸⁵⁾ Although she could not remember the specifics of the conversation, Perkins-Graham did recall Churchill's statement that Kathy Davis was "`ruining the hospital.'"⁽¹⁸⁶⁾ After questioning Perkins-Graham, Davis made no attempts to question Churchill, Dr. Koch, or Jean Welty about the conversation.⁽¹⁸⁷⁾

As a result of the answers gleaned from Perkins-Graham, Davis decided to fire Churchill but conferred with Hopper before taking any action.⁽¹⁸⁸⁾ On January 26, 1987, Hopper, Waters, Davis, and Bernice Magin, the personnel director of MDH held a meeting, during which a unanimous decision was made to terminate Churchill.⁽¹⁸⁹⁾ The next day, when Churchill arrived at work, she was met by Waters who told her to accompany her to Davis's office, where she was then terminated from her job.⁽¹⁹⁰⁾

Churchill was informed that the decision was final, and that the only recourse available to her was to see Stephen Hopper, the president and CEO of MDH, about the matter.⁽¹⁹¹⁾ Accordingly, Churchill met with Hopper to discuss her termination.⁽¹⁹²⁾

Churchill's notes of her February 6, 1987 meeting with Hopper indicate that the meeting was limited to a brief discussion of three points:⁽¹⁹³⁾ (1) the written admonition she had received as a result of the "code pink" incident, (2) the negative handwritten comments by Waters on her latest evaluation, and (3) the conversation with the cross-trainee (Perkins-Graham) during which she allegedly criticized Waters and Davis.⁽¹⁹⁴⁾ According to Churchill, although Hopper addressed both the written warning and the negative evaluation specifically, when asked by Churchill to discuss the alleged critical conversation with the cross-trainee, he replied that "he didn't want to get into that."⁽¹⁹⁵⁾ Hopper informed Churchill by means of a letter on February 12, 1987, that her termination was final.⁽¹⁹⁶⁾ According to MDH, however, there were steps taken between Hopper's meeting with Churchill and his final decision not to overturn her termination.⁽¹⁹⁷⁾ MDH asserted that Hopper reviewed Waters's and Davis's reports of their conversation with Ballew and Perkins-Graham.⁽¹⁹⁸⁾ MDH further asserted that Hopper had Bernice Magin "interview Ballew one more time."⁽¹⁹⁹⁾ MDH alleged that it was not until Hopper considered all the above that he made his decision.⁽²⁰⁰⁾

Upon receipt of final confirmation of her termination, Churchill brought suit under 42 U.S.C. § 1983⁽²⁰¹⁾ in United States District Court for the Central District of Illinois⁽²⁰²⁾ claiming that her speech was protected under Connick, and that her termination was a violation of her First Amendment rights.⁽²⁰³⁾

2.  Procedural History

The United States District Court for the Central District of Illinois granted summary judgment for the defendants, holding that Churchill had no grounds for a Fourteenth Amendment denial of due process claim⁽²⁰⁴⁾ and that neither version of Churchill's speech was protected under Connick.⁽²⁰⁵⁾ The United States Court of Appeals for the Seventh Circuit, however, reversed the decision of the district court.⁽²⁰⁶⁾ It held that, when "viewed in the light most favorable to [Churchill, her speech] was protected under the Connick test" and that any inquiry into the nature of the speech "must turn on what the speech actually was, not on what the employer thought it was."⁽²⁰⁷⁾

When addressing the issues presented in the case, the Court of Appeals for the Seventh Circuit first concluded that the status of speech is usually a question of law;⁽²⁰⁸⁾ however, the court stated, "where content of the speech is in dispute, the substance of the speech is a question of fact for the jury to resolve."⁽²⁰⁹⁾ The court further stated that "`[i]n reviewing a grant of summary judgment, we must view the record and all inferences drawn therefrom in the light most favorable to the party opposing the motion.'"⁽²¹⁰⁾ Because there was a disputed issue of material fact, evidenced by the two stories about the content of the speech--Churchill's version being a matter of public concern⁽²¹¹⁾ and the other not so--the court held that the district court had erred in "taking it upon itself to the resolve this disputed issue of material fact against Churchill."⁽²¹²⁾

The court of appeals also rejected the trial judge's conclusion that even if Churchill's speech was related to a matter of public concern, MDH could have discharged her in spite of the protected speech because Churchill's interests were substantially outweighed by MDH's interests under the Pickering balancing test.⁽²¹³⁾ The court of appeals found this holding to be erroneous because it was based on inferences from the record that were adverse to Churchill.⁽²¹⁴⁾ The court of appeals also believed that the trial judge resolved another issue of material fact "adversely to Churchill [by finding] that her `objective was not to inform but rather to gripe.'"⁽²¹⁵⁾ Because the trial judge failed to draw all reasonable inferences in favor of Churchill (the non-moving party), the court of appeals held the granting of summary judgment on these issues to be error.⁽²¹⁶⁾

In addressing the due process claim, the court of appeals held that it was unnecessary to establish First Amendment due process rights because adequate safeguards already existed under Mt. Healthy,⁽²¹⁷⁾ regardless of whether the employer knew "the precise content of the statements for which it fired the employee."⁽²¹⁸⁾ Essentially, MDH argued that Churchill failed to show that her alleged protected conduct had been the motivating factor in her termination because, by her own admission, the defendants were not aware of the actual content of the conversation in question.⁽²¹⁹⁾ In response to this, Churchill argued that the hospital's "failure to properly investigate the actual content of her speech violated her right to due process under the First Amendment."⁽²²⁰⁾ The court of appeals disagreed with such an argument.⁽²²¹⁾

In support of its holding, the court explained that Mt. Healthy stands for the proposition that the protected conduct itself is the target of the inquiry and not the employer's knowledge "of the precise content of the speech."⁽²²²⁾ To clarify its position the court stated:

We hold that when a public employer fires an employee for engaging in speech, and that speech is later found to be protected under the First Amendment, the employer is liable for violating the employee's free-speech rights regardless of what the employer knew at the time of termination.⁽²²³⁾

B.  The Waters⁽²²⁴⁾ Opinion

1.  The Judgment of the Court⁽²²⁵⁾

Justice O'Connor announced the judgment of the Court in an opinion joined by Chief Justice Rehnquist, Justice Souter and Justice Ginsburg. Noting that the Connick test was the correct procedure for determining whether speech by a government employee was protected,⁽²²⁶⁾ Justice O'Connor quickly set forth the issue of the case.⁽²²⁷⁾ The Court, agreeing that its "task [was] to apply the Connick test to the facts[,]" stated that the dispute was over how to determine what factual basis would be used when applying the test.⁽²²⁸⁾ Particularly, Justice O'Connor framed the issue as whether courts should "apply the Connick test to the speech as the government employer found it to be, [or whether] the jury [should] determine the facts for itself."⁽²²⁹⁾ In answering this question, the plurality held that the Connick test should be applied to the speech as the employer found it to be after the employer reasonably investigated the incident.⁽²³⁰⁾ As simple as such a holding may be to state, arriving at it was not so simple--applying it may yet prove the most formidable task of all.

In setting the stage for its holding, the plurality noted not only the importance of having sound First Amendment standards, but also that such standards should be "applied through reliable procedures."⁽²³¹⁾ Supporting this proposition, the plurality stated that procedures such as "a particular allocation of burden of proof, a particular quantum of proof, a particular type of appellate review" have been held as constitutional requirements in proceedings that have a possibility of penalizing protected speech.⁽²³²⁾ Cases that have so held established a basic constitutional principle that even where a government employer acts on speech it honestly believes is unprotected, such action may be violative of the First Amendment.⁽²³³⁾ The plurality did state, however, that in spite of such a principle, "not every procedure that may safeguard protected speech is constitutionally mandated."⁽²³⁴⁾

In support of its position that not all safeguarding procedures are necessary, the plurality stated that a general test to determine whether such procedures are mandated had never been set forth by the Court.⁽²³⁵⁾ Although such a test was lacking, the plurality did not set out to formulate one.⁽²³⁶⁾ Instead, the plurality reconciled itself to determining whether such safeguarding procedures were necessary on the facts of the case before it.⁽²³⁷⁾ Accordingly, the plurality stated, "the propriety of a proposed procedure must turn on the particular context in which the question arises--on the cost of the procedure and the relative magnitude and constitutional significance of the risks it would decrease and increase."⁽²³⁸⁾

In order to evaluate the factors involved in determining the propriety of proposed procedure in Waters, the plurality set out to answer the question of what it is about the government's role as employer that gives it greater control in "regulating the speech of its employees than it has in regulating the speech of the public at large."⁽²³⁹⁾ The government's restrictive ability in the employment realm, the plurality stated, is a product of the practical realities of government employment.⁽²⁴⁰⁾ First of all, the plurality noted, the principle that the First Amendment demands tolerance of "`verbal tumult, discord, and even offensive utterance,' as `necessary side effects of . . . the process of open debate,'" cannot necessarily be applied to the speech of government employees.⁽²⁴¹⁾ The plurality supported this proposition by stating that no doubt had ever been expressed that a government employer can bar offensive speech by its employees directed at the public or their coworkers.⁽²⁴²⁾ Although the plurality noted that the First Amendment embodies the principle of a commitment that "`debate on public issues should be uninhibited, robust, and wide-open,'"⁽²⁴³⁾ it also suggested that such a principle would not necessarily be extended to government employees.⁽²⁴⁴⁾ For example, the plurality suggested that a private citizen could openly criticize a governor's proposed legislation; however, none of the Court's decisions indicate that the governor could not fire one of his high-ranking officers for criticizing that same piece of legislation.⁽²⁴⁵⁾

Having treated the ways in which the First Amendment was inapplicable to most government employee speech, the plurality next addressed how such speech must also be subject to different procedural requirements.⁽²⁴⁶⁾ Although the plurality noted that "speech restrictions must generally precisely define the speech they target,"⁽²⁴⁷⁾ it also stated that there is no constitutional prohibition on something as broad as prohibiting a government employee from being "rude to customers."⁽²⁴⁸⁾ This, the plurality claimed, is a restriction doubtlessly too vague if applied to the public at large.⁽²⁴⁹⁾ The plurality further stated that greater deference to government predictions of harm used as a basis for restricting employee speech has been consistently given, whereas such deference is not given in dealing with speech of the public.⁽²⁵⁰⁾ This is especially true, the plurality maintained, with cases in which employee speech is not of public, but rather of private, concern.⁽²⁵¹⁾ Although some speech may not be disruptive and may possibly be of value, the plurality noted that the Court has consistently declined any questioning of decisions made by government employers on matters regarding employee speech.⁽²⁵²⁾

All this notwithstanding, the plurality stated that the First Amendment should not necessarily be absent from all government employer decisions.⁽²⁵³⁾ The plurality supported its position by stating that it is often the government employee who knows best the possible problems that plague the particular agency for whom he or she works.⁽²⁵⁴⁾ Where this is the case, the employee may have a strong interest in airing his or her views on public matters.⁽²⁵⁵⁾ In such a situation the employer would have to make a "substantial showing that the speech is, in fact, likely to be disruptive before it may be punished."⁽²⁵⁶⁾ The plurality further noted that the government employer, out of respect for the First Amendment, may choose to give protection to its employees beyond those protections that are constitutionally mandated.⁽²⁵⁷⁾

The above restrictions are not allowed merely because the speech interferes with the operations of the government.⁽²⁵⁸⁾ Rather, the plurality noted, the restrictions are permitted because of the impact the speech may have on the government's "mission as employer."⁽²⁵⁹⁾ Specifically, the plurality explained that the government hires people to "effectively and efficiently" carry out the tasks that the particular agency is charged by law to perform.⁽²⁶⁰⁾ Therefore, when one accepts a salary to work for the government, the government has some power to restrain that person from "do[ing] or say[ing] things that detract from the agency's effective operation."⁽²⁶¹⁾ In light of the foregoing, the plurality presented what it saw to be the key to "First Amendment analysis of government employment decisions."⁽²⁶²⁾ The plurality stated:

The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.⁽²⁶³⁾

When examining the case within the parameters of its analytical model stated above, the plurality concluded that the Seventh Circuit Court of Appeals's decision gave insufficient weight to the employer government's interest in efficient, work-related decision-making.⁽²⁶⁴⁾ The problem with the court of appeals's decision, the plurality noted, is that by allowing the judicial factfinder to determine the facts to which the Connick test is to be applied, the government employer is forced to arrive at its "factual conclusions through procedures that substantially mirror the evidentiary rules used in court."⁽²⁶⁵⁾ The plurality concluded that this would not allow the government manager to make decisions as an experienced professional; rather, it would force him or her to second-guess those conclusions a jury might reach at a later date.⁽²⁶⁶⁾ The plurality also noted that the government manager would have to be aware of the evidence that could or could not be used in court.⁽²⁶⁷⁾ Employers often rely on hearsay because they are in the best position, through personal experience, to judge the credibility of their employees.⁽²⁶⁸⁾ However, the plurality stated, a "jury will not share that personal experience" and may come to a different conclusion than the employer.⁽²⁶⁹⁾ Even if an employer believes that an offense is egregious, and consequently takes action where evidence is ambiguous, the plurality noted, it must always consider that a jury may decide differently.⁽²⁷⁰⁾ The problem with all of this, the plurality stated, is that the employer's ways of coming to conclusions--through reliance on hearsay and personal knowledge of people's credibility--is probably the most effective way for an employer to avoid reoccurrences and future disruptive conduct, and such efficiency would be emasculated by the judicial process.⁽²⁷¹⁾ Accordingly, the plurality concluded that "what works best in a judicial proceeding may not be appropriate in the employment context."⁽²⁷²⁾

The plurality conceded that although such practices by the government employer involve risks of wrongly punishing protected speech, the First Amendment does not require the government employer to adopt more protective practices.⁽²⁷³⁾ Most important to the plurality's opinion though, was that it did not believe that the Connick test should merely be applied to the facts as the government employer thought them to be.⁽²⁷⁴⁾ Rather, the plurality concluded, the Connick test could not be applied to the facts as the employer found them to be "without considering the reasonableness of the employer's conclusions."⁽²⁷⁵⁾ The plurality noted that even in cases in which courts "have recognized the special expertise and special needs of certain decisionmakers [sic]," their conclusions have never been given complete deference.⁽²⁷⁶⁾ The plurality recognized that the employer's conclusion about the speech should be reached in good faith.⁽²⁷⁷⁾ The plurality, however, noted that good faith would not always be sufficient even in the absence of any showing of pretext.⁽²⁷⁸⁾ Accordingly, the plurality concluded that employer decision-making would not have an onerous burden placed on it by having courts "look to the facts as the employer reasonably found them to be."⁽²⁷⁹⁾

When is the government employer required to recognize those instances that involve the need for what a judge may consider a reasonable investigation? The plurality stated that if a reasonable supervisor would recognize that a substantial likelihood exists of punishing protected speech, "the manager must tread with a certain amount of care."⁽²⁸⁰⁾ However, the plurality noted, such care need not be the same as would be used in a trial.⁽²⁸¹⁾ The necessary amount of care, according to the plurality, is that which a "reasonable manager would use before making an employment decision."⁽²⁸²⁾ The plurality conceded that Justice Scalia correctly pointed out that without a protected property interest,⁽²⁸³⁾ an employee is not constitutionally entitled to such care. The plurality noted, however, that where there is a strong possibility of punishing protected speech, such care is necessary.⁽²⁸⁴⁾ The plurality further noted that in situations in which reasonable employers would differ as to what or who is to be believed, or the extent of investigation that is necessary, or the amount of evidence necessary to come to a conclusion, a number of different courses of action could be considered reasonable.⁽²⁸⁵⁾ The only procedure that could be condemned as unreasonable, the plurality maintained, would be one outside the range of what a reasonable manager would use.⁽²⁸⁶⁾

The plurality rejected MDH's argument that Mt. Healthy City School District Board of Education v. Doyle⁽²⁸⁷⁾ foreclosed a reasonableness test.⁽²⁸⁸⁾ This view, also taken by Justice Scalia,⁽²⁸⁹⁾ who cited Pickering,⁽²⁹⁰⁾ Connick,⁽²⁹¹⁾ and Perry,⁽²⁹²⁾ was rejected because the plurality believed that such cases did not deal with the firing of employees based on unreasonable or erroneous beliefs about the content of the speech.⁽²⁹³⁾

In applying its reasonableness test to the Waters case, the plurality concluded that the investigation conducted by Hopper, Davis, and Waters was reasonable,⁽²⁹⁴⁾ and that if they really did believe the story as told by both Perkins-Graham and Ballew, then judgment should have been entered in their favor.⁽²⁹⁵⁾ The plurality noted that even Churchill agreed with the reasonableness test.⁽²⁹⁶⁾ The plurality quoted from Respondents' brief: "`if the belief an employer forms supporting its adverse personnel action is "reasonable," an employer has no need to investigate further.'"⁽²⁹⁷⁾ The plurality concluded, even though it was not required to make a determination, that Churchill's speech was not protected under the Connick test.⁽²⁹⁸⁾ Even if Churchill's speech addressed a matter of public concern, the potential disruptiveness of the speech as reported "was enough to outweigh whatever First Amendment value it might have had."⁽²⁹⁹⁾ The plurality noted that Churchill's speech, as reported by Perkins-Graham and Ballew, showed "strong evidence that Churchill's complaining, if not dealt with, threatened to undermine management's authority" and "could certainly make management doubt Churchill's future effectiveness."⁽³⁰⁰⁾ Accordingly, as a matter of law, the plurality concluded, whatever First Amendment protection that would have been available to the speech was outweighed by its potential disruptiveness.⁽³⁰¹⁾

Also rejected by the plurality was Churchill's argument that Waters and Davis were indifferent to the possibility that the rest of the conversation had been confined to a discussion of the cross-training program.⁽³⁰²⁾ The plurality stated that such a distinction did not matter as long as the speech which formed the basis for termination was not on a matter of public concern; any other speech is irrelevant.⁽³⁰³⁾ The plurality further stated that "[t]he Connick test is to be applied to the speech for which Churchill was fired."⁽³⁰⁴⁾ The plurality also noted that one cannot escape discipline for unprotected speech by surrounding such speech with other, protected statements.⁽³⁰⁵⁾

Despite its foregoing discussion, the plurality decided that the district court had granted summary judgment in error because there remained an issue of material fact regarding whether Churchill had been fired because of the speech as found by Hopper, Davis, and Waters, or because of something else.⁽³⁰⁶⁾ Particularly, Churchill produced enough evidence to demonstrate that MDH's actual motivation may have been its hostility toward Churchill's past criticisms of the cross-training policy.⁽³⁰⁷⁾ The plurality concluded that a factfinder may find, based on the record, that Churchill had been fired because of the nondisruptive statements that may have been made to Perkins-Graham or because of other statements that may have been made at an earlier time.⁽³⁰⁸⁾ Based on the foregoing, the plurality vacated the judgment of the court of appeals and remanded the case for further proceedings.⁽³⁰⁹⁾

In his concurring opinion, Justice Souter wholeheartedly agreed with the viability of the reasonableness test set forth by the plurality.⁽³¹⁰⁾ Justice Souter emphasized the importance of the employer actually believing the third-party report in order to avoid constitutional liability.⁽³¹¹⁾ That is, Souter stated, even a reasonable investigation that fails to convince the employer that the speech was unprotected will not shield the employer from liability.⁽³¹²⁾ Justice Souter further stated that although the plurality opinion was only endorsed by four members of the Court, the reasonableness test set forth by it should be the test that the lower courts apply.⁽³¹³⁾ Souter, in support of this proposition, summarized the position of the Court on the reasonableness issue.⁽³¹⁴⁾ He stated that a majority of the Court⁽³¹⁵⁾ agreed that an employer who passes the reasonableness test cannot be held constitutionally liable.⁽³¹⁶⁾ A different majority,⁽³¹⁷⁾ Souter stated, believed that the Free Speech Clause would be violated by an employer whose conduct fails the reasonableness test.⁽³¹⁸⁾ Accordingly, because the plurality was included in both majorities, Justice Souter stated that "the plurality opinion may be taken to state the holding of the Court."⁽³¹⁹⁾

2.  Justice Scalia, Concurring⁽³²⁰⁾

Although Justice Scalia concurred in the judgment of the case, he did not agree with the plurality's reasonableness test.⁽³²¹⁾ He saw the issue as whether the Court was to adhere to its previously stated rule that "a public employer's disciplining of an employee violates the Speech and Press Clause of the First Amendment only if it is in retaliation for the employee's speech on a matter of public concern."⁽³²²⁾ Justice Scalia stated that the plurality's addition of requiring a reasonable investigation was a superfluous "recognition of a broad new First Amendment procedural right."⁽³²³⁾ Not only did Justice Scalia find such a creation of rights unprecedented, he also saw it as unnecessary for protection of public employee public-concern-oriented-speech and "unpredictable in its application and consequences."⁽³²⁴⁾

Justice Scalia began his concurrence by stating that the Court had always been most prudent when acknowledging First Amendment procedural components.⁽³²⁵⁾ He explained that all the cases cited by the plurality⁽³²⁶⁾ dealt with defamation suits in which there was an alleged governmental curtailment "of the freedom of speech specifically through the judicial process."⁽³²⁷⁾ Another instance in which procedural safeguards were held to be constitutionally mandated, Justice Scalia noted,⁽³²⁸⁾ was in Speiser v. Randall.⁽³²⁹⁾ In that case, Justice Scalia pointed out that the Court was again dealing with the deprivation of rights through the judicial process.⁽³³⁰⁾ Justice Scalia also noted that, although the Speiser Court was addressing a First Amendment right, the requisite safeguard was a function of the Due Process Clause and not of the First Amendment.⁽³³¹⁾ Accordingly, Justice Scalia did not believe that such cases were appropriate models when deciding the issue in Waters.

Not only did Justice Scalia believe that the newly-created right to an investigation "expand[ed] the concept of `First Amendment procedure' into brand new areas," but he also believed that such an expansion was not in line with previous cases addressing government employee speech that were decided under the Due Process Clause.⁽³³²⁾ Such cases, Justice Scalia noted, hold that government employees who do not possess a property interest in their employment would not be entitled to any pre-termination hearing.⁽³³³⁾ Such employees, Justice Scalia stated, may be fired without ramifications to the employer for any reason, "accurate or not."⁽³³⁴⁾ Surely, Justice Scalia noted, they could be dismissed for a rash of unexcused lateness, pure incompetence, pilferage, or "for no reason at all."⁽³³⁵⁾ Under the plurality's opinion, however, Justice Scalia pointed out that if the termination reason given by the employer relates to speech, a reasonable investigation must be undertaken if there is a "substantial likelihood" that the speech is protected.⁽³³⁶⁾ After such an investigation is conducted "the dismissal can still proceed even if the speech was not what the employer had thought it was, so long as it was not speech on an issue of public importance."⁽³³⁷⁾ Justice Scalia stated that, if the investigation by Waters, Hopper, and Davis had found that Churchill had, for example, not demeaned her superiors, but rather that she had been "complaining about the perennial end-of-season slump of the Chicago Cubs," the decision to dismiss her would have been appropriate.⁽³³⁸⁾

"This is a strange jurisprudence indeed," Justice Scalia stated in reaction to the example above.⁽³³⁹⁾ It is strange, Justice Scalia commented, because the plurality turned what used to be constitutional liability in employment speech cases for intentional wrong into liability for "mere negligence."⁽³⁴⁰⁾ Justice Scalia noted that what the plurality proposed was a new First Amendment right.⁽³⁴¹⁾ He believed this was so because, as he pointed out, earlier cases such as Pickering,⁽³⁴²⁾ merely forbade the government employer from showing hostility toward protected speech.⁽³⁴³⁾ Justice Scalia stated: "`[I]t is essential . . . that [public employees] be able to speak out freely on such questions without fear of retaliatory dismissal.'"⁽³⁴⁴⁾ The critical inquiry in cases like Pickering, Connick, and Perry, Justice Scalia stated, was whether the employee was dismissed in retaliation for exercising a constitutionally protected right.⁽³⁴⁵⁾ Justice Scalia believed that an inquiry into the motives of the employer--that is questioning whether the dismissal had been retaliatory--was more than adequate protection for the rights of government employees.⁽³⁴⁶⁾

Not only did Justice Scalia find that such a creation of a new First Amendment right was unnecessary, but he found it doubly unnecessary because the plurality concluded that the Waters case would have to be remanded for further inquiry into the motives of Hopper, Davis, and Waters for dismissing Churchill.⁽³⁴⁷⁾ It is because of the need for a pretext inquiry that Justice Scalia found the right to a reasonable investigation not only "superfluous to the disposition of the [Waters] case, but superfluous to the protection of previously established speech rights."⁽³⁴⁸⁾ Justice Scalia noted that the plurality had no historical basis for its decision and that the only basis was one of pragmatism formed from a belief that without such a right, government employees would have no protection of their First Amendment right of free speech.⁽³⁴⁹⁾ Justice Scalia noted, however, that "[t]he availability of a pretext inquiry disproves that argument."⁽³⁵⁰⁾ Justice Scalia reinforced his firm belief in the pretext inquiry by stating:

Judicial inquiry into the genuineness of a public employer's asserted permissible justification for an employment decision--be it unprotected speech, general insubordination, or laziness--is all that is necessary to avoid the targeting of "public interest" condemned in Pickering.⁽³⁵¹⁾

Justice Scalia further stated that such an inquiry was all that had been required in the employment speech cases that had come before Waters.⁽³⁵²⁾ Even cases such as Mt. Healthy,⁽³⁵³⁾ Justice Scalia maintained, in which the employer admitted that part of the reason for firing the employee was based on protected speech, the Court only required that the employer would still have discharged the employee had it not been aware of the protected speech.⁽³⁵⁴⁾ The objective in Mt. Healthy, as stated by Justice Scalia, was "to `protec[t] against the invasion of constitutional rights without commanding undesirable consequences not necessary to the assurance of those rights.'"⁽³⁵⁵⁾ Justice Scalia noted that the plurality conceded that pretext analysis is sufficient in both other areas of law⁽³⁵⁶⁾ and in other First Amendment contexts.⁽³⁵⁷⁾ He found no reason why a pretext analysis should not be appropriate in employment speech cases.⁽³⁵⁸⁾

Most bothersome to Justice Scalia, it appeared, was his belief that the plurality's creation of a right to a reasonable investigation "provide[d] more questions than answers, subjecting public employers to intolerable legal uncertainty."⁽³⁵⁹⁾ The first question recognized by Justice Scalia was raised by the plurality's conclusion that a reasonable supervisor has a duty to investigate when there is a "substantial likelihood" that the speech in question was protected.⁽³⁶⁰⁾ But upon what, queried Justice Scalia, is the reasonable supervisor to base his or her opinion as to whether a substantial likelihood that the speech was protected exists?⁽³⁶¹⁾ Ultimately, Justice Scalia concluded that an employer should investigate the initial third party report to make a determination as to whether the incident itself should be investigated.⁽³⁶²⁾ The point of Justice Scalia's questioning the standard for determining whether the employer had the duty to investigate seemed to be that such a question may present itself to a judge or jury, which would only lead to more questions.⁽³⁶³⁾

Although Justice Scalia conceded that if the employer's investigation is found to have been reasonable, then everything else that follows--the factfinder's determination of whether the speech was on a matter of public concern or whether reliance on the third party report was pretextual if the speech is found not to be on a matter of public concern--should be accomplished without much trouble.⁽³⁶⁴⁾ However, Justice Scalia wondered, what is to happen if the employer's investigation is found to be unreasonable?⁽³⁶⁵⁾ Presumably, he stated, such an occurrence would amount to a violation of First Amendment procedure, but what, Justice Scalia queried, would be the remedy for such a violation?⁽³⁶⁶⁾ Noting that the plurality did not set forth such a remedy, Justice Scalia posited some possibilities:

One could say that the discharge without observance of the constitutionally requisite procedures is invalid, and must be set aside unless and until those procedures are complied with. Alternatively, one could charge the employer who failed to conduct a reasonable investigation with knowledge of the protected speech that a jury later finds--producing a sort of constructive retaliatory discharge, and entitling the employee to full reinstatement and damages. Or alternatively again, the jury could be required to determine what information a reasonable investigation would have turned up, and then to decide whether it would have been permissible for the employer to fire the employee based on that information.⁽³⁶⁷⁾

Justice Scalia made it clear that he believed that the pretext analysis was more than adequate to protect "the constitutional interests at stake,"⁽³⁶⁸⁾ and that the plurality's invention of a new First Amendment right left even more questions unanswered than the ones he addressed.⁽³⁶⁹⁾

3.  Justice Stevens, Dissenting⁽³⁷⁰⁾

Justice Stevens believed that the plurality's conclusion that a dismissal is valid as long as the employer reasonably believed the speech was protected was erroneous.⁽³⁷¹⁾ Justice Stevens believed that the decision was in error "because it provides less protection for a fundamental constitutional right than the law ordinarily provides for less exalted rights, including contractual and statutory rights applicable in the private sector."⁽³⁷²⁾ Allowing the employer to determine the facts, Justice Stevens stated, would be contrary to our legal system which usually allows facts to be determined by a neutral factfinder in spite of any risks of error.⁽³⁷³⁾ Also, Justice Stevens stated that "when someone acts to another person's detriment based upon a factual judgment, the actor assumes the risk that an impartial adjudicator may come to a different conclusion."⁽³⁷⁴⁾ This being so, Justice Stevens believed it is important that the determination of the facts be made by a neutral factfinder because, under the plurality's model, protected speech could still be punished on the basis of a reasonable mistake made by the employer.⁽³⁷⁵⁾ Justice Stevens did not agree with the plurality's view that allowing a jury to determine the facts would place a "needless fetter on public employers' ability to discharge their duties."⁽³⁷⁶⁾ Rather, Justice Stevens stated that a jury determination is fundamental to protecting legal rights for it "encourages those in authority to act with care."⁽³⁷⁷⁾ Accordingly, Justice Stevens dissented, saying that he would have affirmed the judgment of the court of appeals.⁽³⁷⁸⁾

  Analysis

A.  Due Process Protection for First Amendment Rights

1.  The Recognition of "First Amendment `Due Process'":⁽³⁷⁹⁾ No Protected Property Interest Required

The logical first step in analyzing the Waters opinion is an examination of the plurality's extension of due process rights to at-will government employees.⁽³⁸⁰⁾ Without such a recognition of rights, the plurality could not have advanced to its establishment of the employer's duty to investigate in speech-related termination cases. The employer's duty to reasonably investigate speech-related incidents--which could potentially result in disciplinary action--is the particular form of due process granted to at-will employees. Before a discussion can commence regarding the duty to investigate as a form of due process, there must first be an examination of whether such a due process right exists for at-will employees. This issue is of particular significance because it directly opposes precedent set by the Court in earlier government employee speech cases.⁽³⁸¹⁾

The First Amendment due process protection afforded by the plurality represents one of the many disagreements between it and Justice Scalia. Although the two sides disagreed on the issue, they did agree that due process rights in the form of pre-termination hearings or investigations had never been required in government employee speech cases in which the employee lacked a protected property interest.⁽³⁸²⁾ Despite such mutual assent, however, the plurality went forward with its reasons for recognizing a due process right in government employee speech cases.⁽³⁸³⁾

The plurality's recognition of procedural rights grew out of what it saw as a basic First Amendment principle: "Government action based on protected speech may under some circumstances violate the First Amendment even if the government actor honestly believes the speech is unprotected."⁽³⁸⁴⁾ The cases Freedman v. Maryland,⁽³⁸⁵⁾ Speiser v. Randall⁽³⁸⁶⁾ and others⁽³⁸⁷⁾ cited by the plurality in support of such a principle, all invoked some form of procedural requirement to ensure the protection of First Amendment rights.⁽³⁸⁸⁾ From this, the plurality developed its "duty of reasonable investigation procedure" despite its own admission that such care would not normally be required in the absence of a protected property interest.⁽³⁸⁹⁾ The issue that needs to be addressed in this regard is whether such a departure from precedent in employment speech cases can be constitutionally vindicated by permitting the same use of "First Amendment Due Process" as in Freedman⁽³⁹⁰⁾ and Speiser.⁽³⁹¹⁾

To understand the idea of First Amendment due process, attention must be turned to a Harvard Law Review article entitled, First Amendment "Due Process."⁽³⁹²⁾ In this article, the author explained how courts, beginning in the 1960s, began to recognize the significance of procedural guarantees in protecting freedom of speech.⁽³⁹³⁾ The article begins:

"The history of American freedom," Mr. Justice Frankfurter once observed, "is, in no small measure, the history of procedure." While this comment was made in the context of criminal procedure, courts have lately come to realize that procedural guarantees play an equally large role in protecting freedom of speech; indeed, they "assume an importance fully as great as the validity of the substantive rule of law to be applied." Responding to this realization, courts have begun to construct a body of procedural law which defines the manner in which they and other bodies must evaluate and resolve first amendment [sic] claims--a first amendment [sic] "due process," if you will.⁽³⁹⁴⁾

The author stated that it was the obscenity area of free speech in which the Supreme Court began to concern itself with procedural matters.⁽³⁹⁵⁾ In doing so, the author explained, the Court switched its focus from the due process requirements of the Fifth and Fourteenth Amendments to the First Amendment "as a source of the rules."⁽³⁹⁶⁾

Although, as the author indicated, the Court had not yet been explicitly employing First Amendment due process as it had in the obscenity area, it was beginning to extend the idea beyond obscenity.⁽³⁹⁷⁾ From this budding extension, the author posited:

If the Constitution requires elaborate procedural safeguards in the obscenity area, a fortiori it should require equivalent procedural protection when the speech involved--for example, political speech--implicates more central first amendment [sic] concerns. Like the substantive rules themselves, insensitive procedures can "chill" the right of free expression. Accordingly, wherever first amendment [sic] claims are involved, sensitive procedural devices are necessary . . . .⁽³⁹⁸⁾

From the author's views on how "due process" protection can arise in First Amendment cases,⁽³⁹⁹⁾ the plurality's granting of such protection in Waters does not appear to be far off the constitutional mark. Certainly, it is in line with what the author saw as the policy behind First Amendment due process. "The government, in other words, may regulate certain types of activity, but it must make sure, via proper procedural safeguards, that protected speech is not the loser."⁽⁴⁰⁰⁾

Although the article lends credence to the plurality's policy behind granting procedural safeguards to at-will employees,⁽⁴⁰¹⁾ there does appear to be direct evidence that effectively refutes using the idea of First Amendment due process in this particular area of law.⁽⁴⁰²⁾ Specifically, this evidence can be found in Board of Regents of State Colleges v. Roth.⁽⁴⁰³⁾ When the Roth Court discussed whether any form of due process should be granted to those government employees who do not have a protected property or liberty interest, the idea of First Amendment due process was summarily dismissed.⁽⁴⁰⁴⁾ The Roth Court set out its reasoning in a footnote:

When a state would directly impinge upon interests in free speech or free press, this Court has on occasion held that opportunity for a fair adversary hearing must precede the action, whether or not the speech or press interest is clearly protected under substantive First Amendment standards. Thus, we have required fair notice and opportunity for an adversary hearing before an injunction is issued against the holding of rallies and public meetings. Similarly, we have indicated the necessity of procedural safeguards before a State makes a large-scale seizure of a person's allegedly obscene books, magazines, and so forth.

In the respondent's case, however, the State has not directly impinged upon interests in free speech or free press in any way comparable to a seizure of books or an injunction against meetings. Whatever may be a teacher's right of free speech, the interest in holding a teaching job at a state university, simpliciter,is not itself a free speech interest.⁽⁴⁰⁵⁾

The Roth Court recognized the idea of First Amendment due process and its importance in guaranteeing the right of free speech.⁽⁴⁰⁶⁾ However, it did not feel that the free speech rights of a government employee were equal to those rights which were afforded First Amendment procedural safeguards.⁽⁴⁰⁷⁾ Accordingly, the Court went on to hold that due process can only be afforded to those government employees with protected property or liberty interests.⁽⁴⁰⁸⁾

With this in mind, it is doubtless that the plurality's decision to grant procedural safeguards to at-will government employees was unprecedented.⁽⁴⁰⁹⁾ Perhaps Justice Scalia was perfectly correct when he said: "The proposed right to an investigation before dismissal for speech not only expands the concept of `First Amendment procedure' into brand new areas, but brings it into disharmony with our cases involving government employment decided under the Due Process Clause."⁽⁴¹⁰⁾ Although there is more evidence which tends to prove that such recognition of rights by the plurality is unprecedented, it does not necessarily follow that its decision was an impermissible transgression of constitutional principles.⁽⁴¹¹⁾

2.  A Dismissal of Roth's⁽⁴¹²⁾ Procedural Due Process?

Assuming the question of the validity of the plurality's recognition of First Amendment due process can be unequivocally resolved in the affirmative, another question yet remains as to the role of traditional due process under the Fifth and Fourteenth Amendments. The question is, will the guarantees of procedural due process under Roth and its progeny be supplanted by a duty to reasonably investigate?

As noted above, Roth held that a due process right only arises when the employee has a protected property or liberty interest at stake.⁽⁴¹³⁾ In addition to this holding, the Roth Court commented on how much process was due once such a right was recognized.⁽⁴¹⁴⁾ Although the Court only articulated the amount of process as "some kind of hearing,"⁽⁴¹⁵⁾ a complete balancing test was formulated to determine the requisite procedures four years later in Mathews v. Eldridge.⁽⁴¹⁶⁾ The factors to be considered in such a test are as follows: "(1) [T]he weight of the employee's interest at stake, (2) the value of additional procedural safeguards in enhancing administrative accuracy, and (3) the government's interests in avoiding cumbersome proceedings."⁽⁴¹⁷⁾

Over the years, courts have relegated themselves to determining whether the particular procedures in question conformed to this model on an ad hoc basis.⁽⁴¹⁸⁾ The primary role of the courts, as pointed out by the Harvard Law Review Association article, "is one of double-checking to ensure that agencies' procedures afford at least rudimentary due process."⁽⁴¹⁹⁾ With an eye toward such a goal of "affording at least rudimentary due process," can it reasonably be inferred that the creation of a duty of performing a reasonable investigation logically, albeit unintentionally, forecloses any inquiry into traditional due process under Roth? That is, does the reasonable investigation inquiry afford more protection to an employee than that guaranteed by the Due Process Clause?

Although the Waters plurality never stated such a proposition as the preceding, it appears, as a function of logic, that even if traditional due process is afforded a complainant, such due process must necessarily involve an investigation by the employer. As it stands now, it does not appear that cases decided under the Due Process Clause require anything more than pre-termination notice, opportunity to respond, and a post-termination hearing.⁽⁴²⁰⁾ As discussed by the Court in Cleveland Board of Education v. Loudermill,⁽⁴²¹⁾ the due process protections available in employee termination cases seem to revolve primarily around the ability of the employee to confront his employer.⁽⁴²²⁾ Of course, the Court stated, "[a]n essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'"⁽⁴²³⁾ What is important, is that such an opportunity be given to the employee "to present his side of the case."⁽⁴²⁴⁾ The Loudermill Court saw the opportunity for a hearing as "an initial check against mistaken decisions--essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action."⁽⁴²⁵⁾

Although this may sound like what the plurality prescribes in Waters,⁽⁴²⁶⁾ it is seemingly not as stringent a standard for determining whether the employer has acted properly in determining whether the speech in question is constitutionally protected.⁽⁴²⁷⁾ Justice Souter pointed out in Waters that "under the Free Speech Clause, a public employer who reasonably believes a third-party report that an employee engaged in constitutionally unprotected speech may punish the employee in reliance on that report. . . . [T]he public employer must not only reasonably investigate the third-party report, but must also actually believe it."⁽⁴²⁸⁾ Under the views espoused in Loudermill, however, the employer would only have to maintain "reasonable grounds" in order to take action against an employee.⁽⁴²⁹⁾ This is far from conducting a reasonable investigation into a third-party report which must also be actually believed.⁽⁴³⁰⁾ If, as the plurality and Justice Souter reasoned, the Free Speech Clause demands such an investigation and honest belief by the employer,⁽⁴³¹⁾ it would appear that a pre-termination hearing afforded under the Due Process Clause would be of little significance. This would be true if the events that lead up to such a hearing and subsequent dismissal were based on a third-party report that resulted in an unreasonable investigation not fully convincing the government employer of the truth of such a report.⁽⁴³²⁾ Under such a hypothetical situation, the due process procedures afforded the employee, no matter how conscious of the Constitution, would be relegated to a position of veritable non-importance because the reasonable investigation inquiry could, under Waters, be of paramount constitutional significance.

According to Justice Souter, the public employer's belief of whether the employee in question did indeed engage in unprotected, disruptive speech reflects a balance of both the First Amendment rights concerned and the practical realities of government administration.⁽⁴³³⁾ Justice Souter wrote the following:

A public employer who did not really believe that the employee engaged in disruptive or otherwise punishable speech can assert no legitimate interest strong enough to justify chilling protected expression, whether the employer affirmatively disbelieved the third-party report or merely doubted its accuracy. Imposing liability on such an employer respects the "longstanding recognition that the First Amendment's primary aim is the full protection of speech upon issues of public concern, as well as the practical realities involved in the administration of a government office."⁽⁴³⁴⁾

Based on such comments, it seems that the issue is more one of protecting speech and effective government administration, than one of merely assuring compliance with due process.⁽⁴³⁵⁾ It appears that compliance with due process would not foreclose the reasonable investigation inquiry whether the public employee was at-will or contractual.⁽⁴³⁶⁾ Certainly, the reasonable investigation inquiry would not totally disregard the requirements of due process. It seems plausible, however, that where due process is required, such process could not escape such an inquiry.⁽⁴³⁷⁾

B.  The End of the Pretext Inquiry?: Liability No Longer Based on Intentional Wrong

Beyond the academic arguments surrounding the issue of whether at-will government employees should be entitled to procedural safeguards, there also exists the issue of pretext.⁽⁴³⁸⁾ Again we find two different views: one expressed by the plurality⁽⁴³⁹⁾ and the other expressed by Justice Scalia.⁽⁴⁴⁰⁾ The basic argument presented by Justice Scalia was that the usual inquiry into the intent of the employer was sufficient to safeguard public employees' free speech rights.⁽⁴⁴¹⁾ Justice Scalia cited Mt. Healthy City School District Board of Education v. Doyle,⁽⁴⁴²⁾ its predecessors, and progeny in support of his argument.⁽⁴⁴³⁾ The plurality conceded that such cases did question the intent of the employer when deciding whether free speech rights had been violated.⁽⁴⁴⁴⁾ However, the plurality noted the following:

[I]n all those cases the employer assertedly knew the true content of the employee's protected speech, and fired the employee in part because of it. In none of them did we have occasion to decide what should happen if the defendants hold an erroneous and unreasonable belief about what plaintiff said. These cases cannot be read as foreclosing an argument they never dealt with.⁽⁴⁴⁵⁾

When viewed in light of the case law,⁽⁴⁴⁶⁾ it becomes clear that the plurality is indeed correct. In all the cases that came before the Court prior to Waters, the defendant/employer was aware of the true content of the speech for which the employee was terminated.⁽⁴⁴⁷⁾ None of those cases involved the situation presented in Waters, where the employer's decision rested on information given by a third party.⁽⁴⁴⁸⁾ This being so, the issue now centers on the type of act which imposes liability on the government employer.

Justice Scalia believed that by inquiring into the reasonableness of the investigation, constitutional liability could now be imposed for mere negligence rather than intentional wrong.⁽⁴⁴⁹⁾ Justice Scalia correctly pointed out that the cases prior to Waters strove to ensure "`that [public employees] be able to speak out freely on such questions [matters of public concern] without fear of retaliatory dismissal.'"<sup>(450)</sup> The inquiry for the factfinder, with such considerations in mind, was "whether the employment decision was, `in fact made in retaliation for [the] exercise of the constitutional right of free speech.'"⁽⁴⁵¹⁾

Arguably, Justice Scalia was correct in his belief that inquiring into the reasonableness of the employer's investigation now imputes liability to those government employers who act negligently--not just in retaliation.⁽⁴⁵²⁾ However, he did not appear to analyze his conclusion in light of Justice O'Connor's belief that the Waters case represents a novel situation in which the employer may "hold an erroneous and unreasonable belief about what plaintiff said."⁽⁴⁵³⁾ Assuming the constitutional propriety of granting procedural safeguards to at-will government employees,⁽⁴⁵⁴⁾ it appears that holding an employer--who fails to reasonably investigate and actually believe a third-party report--liable for a decision that impinges upon an employee's right to free speech is the best way of ensuring that such rights are not transgressed.

Without imposing such liability, the creation of procedural safeguards in this context would not have any constitutional bite. For example, if the propriety of an adverse employment decision rested solely on whether it was retaliatory, it is plausible that a government employer could easily escape liability. Presumably, the employer could explain away its actions by saying that it believed the speech in question to be disruptive.⁽⁴⁵⁵⁾ Following the Waters Case, however, if such speech was reported by a third-party and the employer failed to perform a reasonable investigation--and actually believed the report--presumably, the employer would not so easily escape liability.⁽⁴⁵⁶⁾ Even though the plurality's scheme may change the standard by which courts will determine liability,⁽⁴⁵⁷⁾ ensuring that employers will take reasonable actions before making adverse employment decisions makes the plurality's granting of this procedural right⁽⁴⁵⁸⁾ all the more effective.

The debate over pretext⁽⁴⁵⁹⁾ does not end so abruptly. In Waters, the plurality determined that the investigation conducted by the McDonough District Hospital was entirely reasonable, thus releasing them of any liability in that respect.⁽⁴⁶⁰⁾ However, the plurality noted that "Churchill ha[d] produced enough evidence to create a material issue of disputed fact about [her employer's] actual motivation."⁽⁴⁶¹⁾ Based on such a determination, the plurality remanded the case to determine whether Churchill was actually fired for other non-disruptive statements she had made about the cross-training policy.⁽⁴⁶²⁾ It was because of this finding that Justice Scalia further argued that a pretext inquiry was really all that was needed.⁽⁴⁶³⁾

Again, Justice Scalia made valid arguments based on precedent.⁽⁴⁶⁴⁾ However, because the plurality's recognition of procedural safeguards in this area of law is a new idea, it was easy for Justice Scalia to argue for the validity of maintaining a pretext inquiry as the basis for determining liability in such cases.⁽⁴⁶⁵⁾ It seems that such an additional safeguard--that of also allowing a pretext inquiry--makes the plurality's granting of such rights even more effective than had it allowed only for inquiring into the reasonableness of employer investigations.

C.  What the Future Holds

Now that the Waters decision is available to guide courts in this area of law, one cannot avoid wondering what niche this case will find for itself in the vast universe of American jurisprudence. Will Justice Scalia's prophecy that "[w]e will spend decades trying to improvise the limits of this new First Amendment procedure"⁽⁴⁶⁶⁾ be realized? Or, will Waters prove itself a workable model for government employee free-speech cases?

Suffice it to say, the Waters decision does not purport to change the definition of protected speech in the realm of government employment.⁽⁴⁶⁷⁾ Assuredly, the Connick⁽⁴⁶⁸⁾ test will still be applied to the accepted facts to determine whether the speech in question was on a matter of public concern requiring constitutional protection.⁽⁴⁶⁹⁾ The question that is posed by Waters is, how will the exercise of free speech by government employees be affected? Can the case be seen as having the ability to curtail speech because the facts accepted for applying the Connick test will be those found by the employer after a reasonable investigation?⁽⁴⁷⁰⁾ Or, will the recognition of a procedural safeguard for at-will employees encourage speech among those whose speech may once have been chilled due to a lack of procedural guarantees?

One commentary⁽⁴⁷¹⁾ stated that "[t]he judgment of the Court appears to have added little to our understanding of the status of free speech."⁽⁴⁷²⁾ The commentators suggest that Waters enhances the deference given to government employer's predictions of harm and they are worried that such deference "could have a chilling effect on [university] faculty speech."⁽⁴⁷³⁾ Such fears about the ramifications of giving deference to employer/decisionmakers seem unfounded, however. Justice O'Connor did not seem to say that employers' decisions would be given deference without question, but rather she specifically set forth a high standard for determining whether such deference will be given.⁽⁴⁷⁴⁾ Justice O'Connor stated: "It is necessary that the decisionmaker reach its conclusion about what was said in good faith, rather than as a pretext; but it does not follow that good faith is sufficient."⁽⁴⁷⁵⁾

Beyond the possible chilling effect discussed above, there lies more speculation as to how the standard of a reasonable investigation will actually be determined when applied in other cases.⁽⁴⁷⁶⁾ This is the area by which Justice Scalia seemed to have been greatly troubled;⁽⁴⁷⁷⁾ the major problem being that of determining what would be considered reasonable. Justice O'Connor attempted to give some guidance on this issue when she wrote: "Only procedures outside the range of what a reasonable manager would use may be condemned as unreasonable."⁽⁴⁷⁸⁾ Of course, this only begs the question, "who is a reasonable manager?" Other than this cryptic guidance, Justice O'Connor did offer some more concrete examples of what would and would not be considered reasonable.⁽⁴⁷⁹⁾ Most likely though, determining what is reasonable would not create any sort of judicial conundrum because courts have been addressing reasonableness standards for hundreds of years.

Perhaps Justice Scalia is more bothered by the indecisiveness employers may be faced with when trying to determine whether they even have the duty to conduct a reasonable investigation initially.⁽⁴⁸⁰⁾ Presumably, such a duty would manifest itself when "there is a substantial likelihood that what was actually said was protected."⁽⁴⁸¹⁾ Even if this does pose a problem for employers, it may be because the procedural safeguards created by the plurality are really working to protect government employee's rights. For if the duty to investigate can make employers think more critically about speech and what may or may not be protected, it stands to reason that the Waters opinion is a major victory for free speech in the work place.

  Conclusion

Although Waters⁽⁴⁸²⁾ is yet to carve its niche in the annals of American legal history, it does serve as another chapter in the line of cases beginning with Pickering.⁽⁴⁸³⁾ Such cases have done public employees a great service by ensuring that their constitutionally protected right to free speech will not be abridged by the nature of their employment.⁽⁴⁸⁴⁾ Unquestionably, the Supreme Court has made great strides since the days when Justice Holmes believed that public employment and free speech were two mutually exclusive ideas.⁽⁴⁸⁵⁾

As this Comment examined the Waters decision against the backdrop of its predecessors, it became obvious that the plurality's granting of procedural safeguards to at-will government employees, was indeed unprecedented.⁽⁴⁸⁶⁾ As discussed above,⁽⁴⁸⁷⁾ however, nothing would suggest any constitutional impropriety in such a decision. Although some may suggest otherwise,⁽⁴⁸⁸⁾ the Waters plurality has provided fundamental procedural protection of constitutional rights for at-will government employees who had no such guarantees prior to the case.⁽⁴⁸⁹⁾ Not only was the plurality able to create safeguards for such employees, but it was able to do so without transgressing the well-settled principle of deferring to the government employer when a balance of administrative efficiency and free speech is central to the adverse employment decision.⁽⁴⁹⁰⁾ Inquiring into the reasonableness of a government employer's investigation will not hinder the effective running of governmental agencies.⁽⁴⁹¹⁾ Government employers can still find solace in the fact that deference will be given to their decisions, provided they are reached as the product of a reasonable inquiry.⁽⁴⁹²⁾ Because there is no adverse effect on the employer, and because free speech concerns are being advanced, it seems the Waters decision reflects perfectly the critical judicial balancing needed in such an important area of law.

Not only did the plurality strike a victory for all at-will government employees by granting them procedural rights, it doubly protected their free speech interests by also inquiring into the employer's basis for a dismissal.⁽⁴⁹³⁾ Certainly, this creates a very protective environment for promoting free speech in the workplace. Although questions may remain as to how certain aspects of Waters⁽⁴⁹⁴⁾ will be handled in the lower courts, the fact that the opinion has advanced the free speech rights of at-will government employees gives the case its initial significance. Perhaps it will be years before any difficulties arise form judicial interpretation of the ideas espoused in Waters. Perhaps no difficulties will appear at all. Regardless of the eventual outcome of Waters's application on the practical level,⁽⁴⁹⁵⁾ it can be seen today as another victory toward the advancement of free speech in the workplace.

Keith L. Sachs^*

1. See Paul F. Solomon, Editorial Note, The Public Employee's Right of Free Speech: A Proposal for a Fresh Start, 55 U. Cin. L. Rev. 449, 450 (1986).

2. See id. at 449-51.

3. Waters v. Churchill, 114 S. Ct. 1878 (1994) (plurality opinion).

4. For a full discussion of the early developments of public employee free speech rights, see Solomon, supra note 1, at 450-52. The discussion begins with Justice Holmes's statement from McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 512 (1892), that "[t]he petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." Solomon, supra note 1, at 450 (quoting McAuliffe, 155 Mass. at 220, 29 N.E. at 517). "Justice Holmes reasoned that most employments for hire obligate the employee to suspend, or at least suppress, the constitutional right of free speech." Id.

5. Pickering v. Board of Educ., 391 U.S. 563 (1968).

6. Perry v. Sindermann, 408 U.S. 593 (1972).

7. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977).

8. Connick v. Myers, 461 U.S. 138 (1983).

9. See infra part II.A-D.

10. See Waters, 114 S. Ct. at 1884 (plurality opinion). The plurality stated:

There is no dispute in this case about when speech by a government employee is protected by the First Amendment: To be protected, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to "`the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'" Id. (plurality opinion) (quoting Connick, 461 U.S. at 142 (quoting Pickering, 391 U.S. at 568)).

11. See infra part III.B.1.

12. See Waters, 114 S. Ct. at 1889-91 (plurality opinion). The plurality stated the following:

[W]e do not believe that the court must apply the Connick test only to the facts as the employer thought them to be, without considering the reasonableness of the employer's conclusions. . . . It is necessary that the decisionmaker reach its conclusion about what was said in good faith, rather than as a pretext; but it does not follow that good faith is sufficient.Id. at 1889 (plurality opinion) (citations omitted).

13. See Waters, 114 S. Ct. at 1898 (Stevens, J., dissenting); see also infra part III.B.3.

14. "The critical inquiry for the factfinder in these cases is whether the employment decision was, `in fact, made in retaliation for [the] exercise of constitutional right of free speech.'" Waters, 114 S. Ct. at 1895 (Scalia, J., concurring in the judgment) (quoting Perry v. Sindermann, 408 U.S. 593, 598 (1972)).

15. Waters, 114 S. Ct. at 1884-89 (plurality opinion).

16. Id. at 1884-89 (plurality opinion).

17. See supra text accompanying note 13.

18. See Waters, 114 S. Ct. at 1897 (Scalia, J., concurring in the judgment); see also infra notes 359-63 and accompanying text.

19. Pickering v. Board of Educ., 391 U.S. 563 (1968).

20. Solomon, supra note 1, at 452. Cases addressing First Amendment rights of public employees prior to the Pickering decision dealt with state statutes that proscribed certain activities and membership to groups such as the Communist Party. Id. at 450-51. Cases beginning in 1952 with Wiemann v. Updegraff, 344 U.S. 183 (1952), and ending in 1967 with Keyishian v. Board of Regents, 385 U.S. 589 (1967), opened the door for guaranteeing the exercise of constitutional rights by holding many prohibitive state statutes unconstitutional. Solomon, supra note 1, at 451. The author noted the following:

The [Keyishian] Court held the state statute unconstitutional because it prevented public employees from participating in public affairs; this conflicted with the very purpose of the first amendment [sic], which is to ensure the lively exchange of thoughts and ideas that enable the discovery of truth and the betterment of society.Id. at 452.

21. Pickering, 391 U.S. at 564.

22. Id. The letter was written in criticism of events which took place between February 1961 and September 1964. Id. at 565-66. In February 1961, the Board of Education's proposal to raise $4,875,000 to erect two new schools by approval of a bond issue was defeated. Id. at 565. In December 1961, a second proposal for $5,500,000 for building two new schools was approved. Id. at 566. In May 1964, the Board proposed a tax increase, the proceeds of which were to be used for educational purposes, but it was defeated by the voters. Id. In September 1964, a second tax increase was proposed and likewise defeated. Id.

Articles, attributed to the local teachers' organization urging that the second proposal be passed to avoid a decline in the quality of education, were published prior to the vote on the second proposal. Id. The superintendent published a letter with the same tone as those published by the teachers' organization. Id. In response to the failure of passing the tax increase and the previously published materials, Pickering submitted his letter to the newspaper. Id. "The letter constituted, basically, an attack on the School Board's handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools' educational and athletic programs." Id. The letter also contained a charge that the superintendent of schools attempted to prevent teachers from opposing or criticizing the proposed bond issue. Id.

23. Id. at 566-67.

24. Id. at 567. The Board "charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment `controversy, conflict and dissension' among teachers, administrators, the Board of Education, and the residents of the district." Id. It is interesting to note, however, that evidence was never introduced at the hearing as to the effect on the "community as a whole" or the administration. See id.

25. Id. (quoting an unreported Illinois court opinion).

26. Pickering, 391 U.S. at 567.

27. Id. In the Pickering opinion, the Court noted that it was unclear whether the Illinois Supreme Court held that First Amendment protection was not given to Pickering's dismissal for writing the letter or whether the First Amendment merely did not protect "the particular statements made in the letter." Id.

28. Id. at 568.

29. Id. (citing Keyishian v. Board of Regents, 385 U.S. 589 (1967); Shelton v. Tucker, 364 U.S. 479 (1960); Wieman v. Updegraff, 344 U.S. 183 (1952)). "[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected." Pickering, 391 U.S. at 568 (quoting Keyishian, 385 U.S. at 605-06).

30. Id.

31. Pickering, 391 U.S. at 568.

32. Id. at 569. In speaking of the possibility of laying down general guidelines, the Court did "not deem it either appropriate or feasible." Id.; see also Nicholas E. Tishler, Free Speech Rights of Government Employees, 60 N.Y. St. B.J. 16, 18 (1988).

33. Pickering, 391 U.S. at 569.

34. Id. at 569-70.

35. Id. at 570. The Court found that the letter was directed toward the School Board by criticizing its allocation of funds between educational concerns and athletic concerns and its methods of informing or not informing taxpayers as to how the money was to be allocated. Id. at 569. In no way was the letter directed toward any individual with whom Pickering interacted on a daily basis. Id. at 569-70. The Court further noted that Pickering's relationships with the Board and the superintendent were not of the nature "of close working relationships for which it [could] persuasively be claimed that personal loyalty and confidence [were] necessary to their proper functioning." Id. at 570.

36. Id. at 570.

37. Id.

38. Pickering, 391 U.S. at 570; see also supra note 35.

39. Pickering, 391 U.S. at 570. The Court stated the following:

Certainly an accusation that too much money is being spent on athletics by the administrators of the school system . . . cannot reasonably be regarded as per se detrimental to the district's schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest.Id. at 571.

40. Id. at 570. The Court broke down Pickering's letter into eight statements, four of which it found to be correct and four of which it found to be "factually incorrect in varying degrees." Id. at 579-81. The four statements the Court found to be correct and also matters of public concern are as follows: (1) Pickering asserted that the Board had deviated greatly from its original promises made during the 1961 bond issue campaign insofar as the schools, when built, contained facilities other than what had been promised. Id. at 579. Specifically, the Board, during its campaign, said that the new schools would not contain items such as "swimming pools, auditoriums, and athletic fields." Id. However, when the schools were built, they did contain such facilities. Id. (2) Pickering also stated that the Board had incorrectly reported that teachers' salaries totaled $1,297,746 per year. Id. at 580. The Court found that if the Board had changed the word "`teachers'" to "`instructional,'" which would include librarians, principals, secretaries, etc., the figure would have been accurate. Id. (3) Pickering also stated that the "superintendent had said that any teacher who did not support the 1961 bond issue referendum should be prepared for the consequences." Id. at 580. The Court found that this statement was corroborated by two other teachers and, hence, was not false or disruptive. Id. at 581. (4) Pickering stated in his letter that letters from teachers to newspapers had to be pre-approved by the superintendent before they could have a chance of being published. Id. The Board denied such occurrences, but the Court found that the letters to which Pickering was referring had, in fact, been reviewed by the superintendent prior to publication. Id.

41. Id. at 581. The statements found to be false are as follows: (1) Pickering stated that because athletes were provided with free lunches, the other students were having to pay $0.35 instead of the $0.30 they would pay if the athletes were to have bought their lunches. Id. The Court found that even if the athletes were not receiving free lunches, the other students' cost would not have dropped to $0.30. Id. (2) Pickering claimed the Board was spending $200,000 per year on athletics. The Court found this figure to be incorrect. Id. at 581-82. (3) Pickering claimed that the Board was spending $50,000 in transportation costs for athletes when the actual figure was closer to $10,000. Id. (4) Pickering claimed that football fields were resodded rather than teachers' salaries paid. This was true inasmuch as the football fields were resodded; however, though there was some difficulty making the payroll, the teachers were paid. Id. at 582.

42. Id. at 572.

43. Id. at 572-73.

44. Pickering, 391 U.S. at 569, 573.

45. Id. at 574. In stressing the importance of allowing public employees to contribute to debate, the Court said:

Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

. . . .

. . . In these circumstances we conclude that 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.Id. at 572-73.

46. Perry v. Sindermann, 408 U.S. 593 (1972).

47. See Solomon, supra note 1, at 454-55.

48. Perry, 408 U.S. at 596.

49. Id. at 594. From 1959 to 1969 Sindermann taught in the state college system of Texas. Id. He taught two years at the University of Texas and four years at San Antonio Junior College. Id. In 1965, he became a professor of Government and Social Science at Odessa where he taught for four years by virtue of consecutive one-year contracts. Id. He was eventually appointed co-chairman of his department. Id.

50. Id. at 594-95. The statements about the Board's policies were made while Sindermann was acting in his official capacity as President of the Texas Junior College Teachers Association, a position to which he was elected in 1969. Id. The statements were made while testifying before committees of the Texas Legislature. Id.

51. Id. at 595. On another occasion "a newspaper advertisement appeared over . . . [Sindermann's] name that was highly critical of the Regents." Id.

52. Perry, 408 U.S. at 595. In support of its decision not to renew Sindermann's contract, the Board issued a press release that alleged insubordination. Id. Specifically, the press release alleged that Sindermann defied his superiors by attending the committee meetings when college officials had refused to let him leave class to do so. Id. at 595 n.1.

53. Id. at 595.

54. Id.

55. Id.

56. Id.

57. Perry, 408 U.S. at 595. The Board maintained that the decision not to renew Sindermann's contract was based solely on insubordination. Id. at 595 n.2.

58. Id. at 597 (emphasis added) (alteration in original) (quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)).

59. Id. (citation