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Open Joseph Oluwole.Pdf The Pennsylvania State University The Graduate School Department of Education Policy Studies PUBLIC EMPLOYMENT-FREE SPEECH JURISPRUDENCE: PROPOSAL OF A NEW CONSTITUTIONAL TEST FOR DISCIPLINED WHISTLEBLOWING TEACHERS A Thesis in Educational Leadership by Joseph O. Oluwole © 2007 Joseph O. Oluwole Submitted in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy August 2007 ii The thesis of Joseph O. Oluwole was reviewed and approved* by the following: Preston C. Green, III Professor of Education and Professor of Law Thesis Advisor Chair of Committee Jacqueline A. Stefkovich Professor of Education and Department Head, Department of Education Policy Studies John W. Tippeconnic Professor of Education Dan Cahoy Assistant Professor of Business Law *Signatures are on file in the Graduate School iii ABSTRACT This study proposes a new approach for analyzing teacher whistleblowing cases. In proposing this approach, the author addresses three questions: 1. Can the United States Supreme Court’s public employment-free speech jurisprudence be categorized into eras? 2. Is there a way to categorize the types of speech that whistleblowing teachers engage in under the United States Supreme Court’s public employment-free speech jurisprudence? 3. What is the author’s proposed constitutional framework for analyzing whistleblowing cases under the United States Supreme Court’s public employment-free speech jurisprudence? The constitutional framework the author proposes is based on the three-tier framework used in the Equal Protection Clause jurisprudence. The author proposes this three-tier system to replace the current single-tier system represented in the Pickering balancing test so as to account for multiple and different categories of whistleblowing speech; this would ensure greater protection for such speech as well as opportunities for employers to proffer operational efficiency in defense of retaliatory actions taken against employees for their speech, without discounting the employee’s speech. iv TABLE OF CONTENTS LIST OF FIGURES .....................................................................................................viii LIST OF TABLES.......................................................................................................ix ACKNOWLEDGEMENTS.........................................................................................x Chapter 1. INTRODUCTION............................................................................................1 Statement of the Problem.................................................................................1 Research Questions..........................................................................................21 2. LITERATURE REVIEW.................................................................................22 Historical Background of the Protection of Public Employees' Right of Free Speech.....................................................................................................23 Foundational Cases - Recognizing Public Employees' Free Speech .....23 Pickering v. Board of Education ................................................29 Perry v. Sindermann ..................................................................35 Madison Joint School District No. 8 v. Wisconsin Employment Relations Commission.........................................37 Mount Healthy City School District Board of Education v.Doyle ...................................................................................42 Givhan v. Western Line Consolidated School District ..............47 Connick v. Myers ......................................................................53 Rankin v.McPherson ..................................................................62 Waters v. Churchill ....................................................................65 San Diego v. Roe .......................................................................73 Garcetti v. Ceballos ...................................................................77 Pickering Balancing Test and Public Employment-Free Speech Jurisprudence: The Approach of Federal Circuit Courts of Appeals..........89 v District of Columbia Circuit Court of Appeals .........................93 First Circuit Court of Appeals ...................................................94 Second Circuit Court of Appeals ...............................................95 Third Circuit Court of Appeals ..................................................96 Fourth Circuit Court of Appeals ...............................................98 Fifth Circuit Court of Appeals ...................................................100 Sixth Circuit Court of Appeals ..................................................104 Seventh Circuit Court of Appeals ..............................................106 Eighth Circuit Court of Appeals ................................................111 Ninth Circuit Court of Appeals ..................................................113 Tenth Circuit Court of Appeals .................................................113 Eleventh Circuit Court of Appeals .............................................115 Matter of Public Concern ............................................................................117 Articulating the Current Public Employment-Free Speech Framework Consistently with Pickering and its Progency ................................................123 3. RESEARCH METHODOLOGY .....................................................................130 Sources of Law for Legal Research..................................................................132 Primary Sources.....................................................................................132 Constitutions ..............................................................................134 Statutes ......................................................................................134 Regulations ................................................................................135 Case Law ....................................................................................136 Secondary Sources .................................................................................138 Research (or Finding) Tools ..................................................................139 Case Digests ..............................................................................139 vi Topic Method .............................................................................140 Descriptive Word Searches ........................................................140 Shepard's ....................................................................................140 4. ANALYSIS.......................................................................................................142 Eras in the United States Supreme Court's Public Employment-Free Speech Jurisprudence......................................................................................142 Era of Categorical Denial............................................................................142 Era of Recognition: Undefined Scope.........................................................144 Era of Balancing: Scope..............................................................................150 Era of OE > MPC Speech ...........................................................................156 Categorizing Speech in the United States Supreme Court's Public Employment-Free Speech Jurisprudence........................................................173 Purely Employee Speech.............................................................................173 Purely Citizen Speech .................................................................................175 Citzen-Employee Hybrid Speech................................................................177 A New Constitutional Test for Analyzing Cases in the Public Employment-Free Speech Jurisprudence........................................................182 History of the Equal Protection Clause Three-Tier Framework .................183 Equal Protection Clause Three-Tier Framework ........................................196 Strict Scrutiny ............................................................................197 Intermediate Scrutiny .................................................................199 Rational Basis Review................................................................200 Proposal of a Three-Tier Framework for the Public Employment-Free Speech Jurisprudence......................................................................................203 Strict Scrutiny-"Purely Citizen Speech" .....................................................203 Intermediate Scrutiny-"Citizen-Employee Hybrid Speech" .......................204 vii Rational Basis Review-"Purely Employee Speech"....................................206 5. CONCLUSION.................................................................................................210 APPENDIX...........................................................................................................217 Appendix A: Pickering's Letter to Graphic Newspapers, Inc., the Local Newspaper in Will County, Illinois ................................................................217 Appendix B: Holmquist and Reed's Petition....................................................221 Appendix C: Mount Healthy City School District Board of Education's Statement to Doyle Stating the Grounds for the Decision Not to Renew His Contract
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