439 U.S. 410 (1979), 77-1051, Givhan v. Western Line Consolidated School District

Docket NºNo. 77-1051
Citation439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619
Party NameGivhan v. Western Line Consolidated School District
Case DateJanuary 09, 1979
CourtUnited States Supreme Court

Page 410

439 U.S. 410 (1979)

99 S.Ct. 693, 58 L.Ed.2d 619

Givhan

v.

Western Line Consolidated School District

No. 77-1051

United States Supreme Court

Jan. 9, 1979

Argued November 7, 1978

CERTIORARI TO THE UNITED STATES COURT OF APPEAL

FOR THE FIFTH CIRCUIT

Syllabus

After petitioner was dismissed from her employment as a teacher, she intervened in a desegregation action against respondent [99 S.Ct. 694] School District, seeking reinstatement on the ground, inter alia, that her dismissal infringed her right of free speech under the First and Fourteenth Amendments. In an effort to justify the dismissal, the School District introduced evidence of, inter alia, a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." Concluding that the primary reason for the dismissal was petitioner's criticism of the School District's practices and policies, which she conceived to be racially discriminatory, the District Court held that the dismissal violated petitioner's First Amendment rights and ordered her reinstatement. The Court of Appeals reversed, holding that, under Pickering v. Board of Education, 391 U.S. 563; Perry v. Sindermann, 408 U.S. 593; and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, petitioner's complaints and opinions were not protected by the First Amendment because they were expressed privately to the principal, and because there is no constitutional right to "press even `good' ideas on an unwilling recipient."

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

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

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

(c) Respondents' Mt. Healthy claim, rejected by the Court of Appeals, that the decision to terminate petitioner would have been made

Page 411

even if her encounters with the principal had never occurred called for a factual determination that could not, on the record, be resolved by that court, since it was not presented to the District Court, Mt. Healthy having been decided after the trial in this case. Pp. 416-417.

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

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

REHNQUIST, J., lead opinion

MR. JUSTICE REHNQUIST delivered the opinion of the Court.

Petitioner Bessie Givhan was dismissed from her employment as a Junior high English teacher at the end of the 1970-1971 school year.1 At the time of petitioner's termination, respondent Western Line Consolidated School District was the subject of a desegregation order entered by the United States District Court for the Northern District of Mississippi. Petitioner filed a complaint in intervention in the desegregation action, seeking reinstatement on the dual grounds that

Page 412

nonrenewal of her contract violated the rule laid down by the Court of Appeals for the Fifth Circuit in [99 S.Ct. 695] Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (1969), rev'd and remanded sub nom. Carter v. West Felician Parish School Board, 396 U.S. 290 (1970), on remand, 425 F.2d 1211 (1970), and infringed her right of free speech secured by the First and Fourteenth Amendments of the United States Constitution. In an effort to show that its decision was justified, respondent School District introduced evidence of, among other things,2 a series of private encounters between petitioner and the school principal in which petitioner allegedly made "petty and unreasonable demands" in a manner variously described by the principal as "insulting," "hostile," "loud," and "arrogant." After a two-day bench trial, the District Court held that petitioner's termination had violated the First Amendment. Finding that petitioner had made "demands" on but two occasions, and that those demands

Page 413

were neither "petty" nor "unreasonable," insomuch as all the complaints in question involved employment policies and practices at [the] school which [petitioner] conceived to be racially discriminatory in purpose or effect,

the District Court concluded that

the primary reason for the school district's failure to renew [petitioner's] contract was her criticism of the policies and practices of the school district, especially the school to which she was assigned to teach.

App. to Pet. for Cert. 35a. Accordingly, the District Court held that the dismissal violated petitioner's First Amendment rights, as enunciated in Perry v. Sindermann, 408 U.S. 593 (1972), and Pickering v. Board of Education, 391 U.S. 563 (1968), and ordered her reinstatement.

The Court of Appeals for the Fifth Circuit reversed. Ayers v. Western Line Consol. School Dist., 555 F.2d 1309 (1977). Although it found the District Court's findings not clearly erroneous, the Court of Appeals concluded that, because petitioner had privately expressed her complaints and opinions to the principal, her expression was not protected under the First Amendment. Support for this proposition was thought to be derived from Pickering, supra, Perry, supra, and Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), which were found to contain "[t]he strong implication . . . that private expression by a public employee is not constitutionally protected." 555 F.2d at 1318. The Court of Appeals also concluded that there is no constitutional right to "press even `good' ideas on an unwilling recipient," saying that to afford public employees the right to such private expression "would, in effect, force school principals to be ombudsmen, for damnable, as well as laudable, expressions." Id. at 1319. We are unable to agree that private expression of one's views is beyond constitutional protection, and therefore reverse the Court of Appeals' judgment and remand the case so that it may consider the contentions of the parties freed from this erroneous view of the First Amendment.

Page 414

This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion [99 S.Ct. 696] that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately, rather than publicly. While those cases each arose in the context of a public employee's public expression, the rule to be derived from them is not dependent on that largely coincidental fact. In Pickering, a teacher was discharged for publicly criticizing, in a letter published in a local newspaper, the school board's handling of prior bond issue proposals and its subsequent allocation of financial resource between the schools' educational and athletic programs. Noting that the free...

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862 practice notes
  • 15 F.3d 1258 (3rd Cir. 1994), 92-7359, Swineford v. Snyder County, Pa.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • February 4, 1994
    ...429 U.S. at 282, 97 S.Ct. at 573; complaints about school board policies and practices, Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979); a public school teacher's letter to the editor criticizing the Board of Education's proposals for......
  • 56 F.Supp.2d 1010 (N.D.Ill. 1999), 98 C 5232, Hanania v. Loren-Maltese
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 12, 1999
    ...And if it is such, the fact that it was privately expressed does not negate protection. Givhan v. Western Line Consol. School District, 439 U.S. 410, 415 fn. 4, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). Defendants say Resnick was removed from office for failure to attend Board meetings, but she ......
  • 571 F.Supp.2d 948 (W.D.Wis. 2007), 06-C-585, Wilson v. Greetan
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • August 17, 2007
    ...that a statement need not be made in public to Page 959 be a matter of public concern. In Givhan v. Western Line Consol. School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), the plaintiff was a school teacher who had been fired after she privately complained to the principal ......
  • 609 F.Supp. 972 (M.D.Pa. 1985), Civ. 82-0699, Gobla v. Crestwood School Dist.
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • February 1, 1985
    ...the same action would have been taken even in the absence of the protected conduct. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697-98, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 287, 97 S.Ct.......
  • Request a trial to view additional results
836 cases
  • 15 F.3d 1258 (3rd Cir. 1994), 92-7359, Swineford v. Snyder County, Pa.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Third Circuit
    • February 4, 1994
    ...429 U.S. at 282, 97 S.Ct. at 573; complaints about school board policies and practices, Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 413, 99 S.Ct. 693, 695, 58 L.Ed.2d 619 (1979); a public school teacher's letter to the editor criticizing the Board of Education's proposals for......
  • 56 F.Supp.2d 1010 (N.D.Ill. 1999), 98 C 5232, Hanania v. Loren-Maltese
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 12, 1999
    ...And if it is such, the fact that it was privately expressed does not negate protection. Givhan v. Western Line Consol. School District, 439 U.S. 410, 415 fn. 4, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979). Defendants say Resnick was removed from office for failure to attend Board meetings, but she ......
  • 571 F.Supp.2d 948 (W.D.Wis. 2007), 06-C-585, Wilson v. Greetan
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • August 17, 2007
    ...that a statement need not be made in public to Page 959 be a matter of public concern. In Givhan v. Western Line Consol. School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), the plaintiff was a school teacher who had been fired after she privately complained to the principal ......
  • 609 F.Supp. 972 (M.D.Pa. 1985), Civ. 82-0699, Gobla v. Crestwood School Dist.
    • United States
    • Federal Cases United States District Courts 3th Circuit Middle District of Pennsylvania
    • February 1, 1985
    ...the same action would have been taken even in the absence of the protected conduct. Givhan v. Western Line Consolidated School District, 439 U.S. 410, 416-17, 99 S.Ct. 693, 697-98, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. at 287, 97 S.Ct.......
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26 books & journal articles
  • The Jurisprudence of Mixed Motives.
    • United States
    • Yale Law Journal Vol. 127 Nbr. 5, March 2018
    • March 1, 2018
    ...Any distinction between the two is semantic only." Whitman, supra note 29, at 876 n.79; accord Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 417 (1979). The foregoing standard applies to only the five core Title VII identities (race, sex, religion, national origin, and color). Mi......
  • In support of an implied state constitutional free speech tort in public employment retaliation cases.
    • United States
    • Albany Law Review Vol. 78 Nbr. 1, September - September 2014
    • September 22, 2014
    ...government sought to suppress the rights of public employees to participate in public affairs). (45) Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414 (46) Pickering, 391 U.S. at 564 (internal quotations omitted). (47) Id. at 571-72. The Court considered the subject matter of the lett......
  • Majoritarian democracy in a federalist system: the late Chief Justice Rehnquist and the First Amendment.
    • United States
    • Harvard Journal of Law & Public Policy Vol. 30 Nbr. 2, March 2007
    • March 22, 2007
    ...Gannett Co. v. DePasquale, 443 U.S. 368 (1979) (Rehnquist, J., concurring). Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979) (Rehnquist, J., majority opinion). Greater New Orleans Broadcasting Ass'n v. United States, 527 U.S. 173 (1999) (Rehnquist, C.J., concurring).......
  • Preparing students for democratic participation: why teacher curricular speech should sometimes be protected by the First Amendment.
    • United States
    • Missouri Law Review Vol. 73 Nbr. 1, January 2008
    • January 1, 2008
    ...408 U.S. 593 (1972); Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977); Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410 (1979). (38.) Perry, 408 U.S. at 598. This included the teacher testifying before the Texas legislature. Id. (39.) Mt. Healthy, 429 U.S. at 282, 28......
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