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Teacher looks back on letter that led to firing — and Supreme Court victory

Analysis

By David Hudson
freedomforum.org

07.20.01

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Marvin Pickering

Retired public high school science teacher Marvin Pickering had no idea that his battle with Illinois school board officials more than three decades ago would lead to the seminal Supreme Court decision on public employee First Amendment rights. But that's what eventually happened when the then-youthful teacher wrote a letter to the editor complaining about his school board's allocation of funds with respect to athletics vis-ŗ-vis academics.

The letter got him fired.

"It was an important battle that gave public employees some rights," Pickering says modestly. Free-speech experts say the case stands as the starting point in public employee First Amendment case law.

"To this day the Pickering case stands as the public employee First Amendment case," says Robert M. O'Neil, founder of the Virginia-based Thomas Jefferson Center for the Protection of Free Expression and author of a book on public employee free-speech rights. "Though the court has modified the test for public employee rights somewhat, it still all begins with a Pickering analysis."

The controversy
The controversy began when the Board of Education of Township High School in Will County, Ill., asked the voters of the school district to approve a bond issue to raise more than $5 million to build two new high schools.

After the two schools were approved, the board submitted another proposal to raise taxes to obtain more monies for the two schools. Two proposals to raise the tax rate were defeated. In the midst of this controversy, Marvin Pickering decided to speak out as a citizen.

"Members of the board were not being straight about how they were spending some of this money for these new schools," he said. "They were spending too much money on athletics. Instead of spending $3.2 million at one school and $2.3 million at the other school, they spent more than $4 million on one of the schools. As a result the classrooms at Lockport East were constructed with three walls. This was a nightmare for teachers as the rooms opened into each other."

Letter to the editor
So Pickering drafted a letter to the editor to The Lockport Herald criticizing the school board's handling of the bond and tax issues with regard to building the two new schools. The letter stated in pertinent part: "Perhaps others would enjoy reading them [back issues of the paper] in order to see just how far the two new high schools have deviated from the original promises by the Board of Education."

Other statements in the letter included:

  • "That's the kind of totalitarianism teachers live in at the high school, and your children go to school in."

  • "But $20,000 in receipts doesn't pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers."

  • "To sod football fields on borrowed money and then not be able to pay teachers' salaries is getting the cart before the horse."

  • "As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don't know whom to trust with any more tax money."

The Sept. 24, 1964, letter concluded: "I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken away from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school?"

After he drafted his letter, he showed it to his wife. "She read it and then told me: 'You're probably going to get fired.'" But I went ahead and sent the letter anyway," he says.

Pickering says he decided to send the letter because "I thought that if they did fire me, it would only prove my case," he said. "Why else would they get so upset and fire me? To me, I loaded the gun and handed it to them and they were stupid enough to pull the trigger."

Unfortunately, board officials were not pleased and they pulled the trigger and fired Pickering from his teaching job, finding his letter "detrimental to the efficient operation and administration of the schools of the district." The board concluded at a hearing that several statements in his letter were false.

Though many people in the community supported him, most of Pickering's fellow teachers would not publicly side with him for fear of losing their jobs. "Most of them were scared to support me," he recalls. "When we were out of sight of the principle and other teachers, they would say, 'We're with you.' But only when no one else was in sight."

Fighting back
Pickering fired back by appealing the board's decision in state court. He argued that the board's actions violated his constitutional right to freedom of speech. A state circuit court affirmed the school board decision.

In the meantime, Pickering had to find other employment to support his wife and two kids. He ended up taking a job in Chicago with Campbell Soup Co. where he worked for more than two years as a production manager. During that time, he missed teaching. "Sure I missed teaching," he says. "But I had to support my family and I had always been independent."

When asked why he put himself on the line, Pickering responds: "I grew up on a farm in Liberty Township, Missouri, where people were free and independent. There in Missouri, the people told the politicians what they wanted them to get done. In Illinois, I found it to be different. There, the politicians were telling the people what they were going to do. I thought the government officials in Illinois were being dictators."

After losing before the trial judge, Pickering (who says he expected to lose at the trial court) appealed to the Illinois Supreme Court. In January 1967, the state high court voted 3-2 against Pickering.

The majority rejected Pickering's free-speech claim, writing: "By choosing to teach in the public schools, plaintiff undertook the obligation to refrain from conduct which in the absence of such position he would have an undoubted right to engage in." The majority continued: "A teacher who displays disrespect toward the Board of Education, incites misunderstanding and distrust of its policies, and makes unsupported accusations against the officials is not promoting the best interests of his school, and the Board of Education does not abuse its discretion in dismissing him."

In dissent, two justices pointed out that the Board of Education was ruling against a teacher who had just subjected it to public criticism. The dissent questioned the impartiality of this procedure, writing that it was unseemly if not unconstitutional.

"The letter is substantially accurate, and more important it has not been shown to be knowingly false," the dissent wrote. Because of this, the dissent concluded that the board had violated Pickering's First Amendment rights.

Pickering was not too surprised at the outcome, though he was disappointed. "The board's lawyers had wined and dined with the chief justice of the Illinois Supreme Court," he said.

Appeal to U.S. Supreme Court; its decision
After a narrow defeat before the Illinois high court, Pickering did not lose faith. Instead, he appealed to the court of last resort in this country — the United States Supreme Court. "I believed in my heart that the Supreme Court would rule in my favor," he said.

Pickering's optimism took a blow the day before oral arguments as he was walking with his attorney in the courthouse. He heard a court employee tell some tourists that tomorrow's docket did not seem to contain an important case. "I heard a court clerk tell someone who was asking about tomorrow's docket: 'There is nothing much on tomorrow's docket, just a little case involving a public high school teacher. I don't even know why it is on the docket.'"

"I got a little concerned after that statement," he said. "Though in hindsight I guess I shouldn't have been, because it was only a court employee, not a Supreme Court justice."

However, Pickering's worries were allayed on June 3, 1968, when the Supreme Court issued its decision in Pickering v. Board of Education of Township High Sch. Dist. 205. The court voted 8-1 in favor of Pickering. Justice Byron White dissented only in part and would have remanded the case back to the trial court for further fact-finding.

However, the other eight members of the court reversed the lower court and determined that the Board of Education had violated Pickering's First Amendment rights. The high court noted that oftentimes employee-employer disputes present a conflict between the employee's free-speech interests and the employer's efficiency interests.

Justice Thurgood Marshall wrote: "The problem in any case is to 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."

The high court first noted that Pickering's letter referred to important matters of public concern in the community. The court pointed out that Pickering should not lose the rights he possesses as a citizen simply because he works as a public school teacher. The court also minimized the board's argument that the letter disrupted the efficient operation of the schools.

The court concluded 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."

Pickering was pleased with the court's opinion, which ordered him reinstated. However, today he wishes that the court had not assumed for purposes of its opinion that portions of his letter were inaccurate. To this day, Pickering vehemently defends the truth of the statements in his letter.

"The only regret I have is that the court never cleared up the truth of several points in my letter," Pickering says. "I had hoped the Supreme Court decision would have substantiated the truth of each and every statement in my letter."

Aftermath
Pickering was reinstated in September 1969 and worked as a teacher at Lockport Township High School until his retirement in 1997. "It took a while for the local judge to reinstate me," he says. "I guess that was part of politics then. You have to remember that the good ole boys were running the show back then."

"You cannot improve any public body if you don't have freedom of information about what that public body is doing," he says. "The First Amendment is a very important amendment because it is fundamental for the dissemination of information."

Pickering says that periodically other public employees and whistleblowers with lawsuits will call him to tell him the outcome of their cases. "On occasion, some law professors will call me and want me to address their class," he says. "I don't mind. I think whistleblowers should have a right to speak out."

Looking back on the case, Pickering acknowledges that the case took an economic and personal toll on him. "It was costly," he says. "I mean it took a lot of time and strained my finances. But I survived and lived through it."

All public employees should realize when they look back that they owe a debt of gratitude to Marvin Pickering for his First Amendment battle.

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