No Right to Complain

Federal appeals court finds memo from Georgia State psychologists criticizing management of counseling center had no First Amendment protection.

October 30, 2015

A federal appeals court on Thursday ruled, 2 to 1, that five psychologists who wrote a memo criticizing the management of the counseling center at Georgia State University lacked First Amendment protections in their grievance.

As a result, the ruling severely undercuts a lawsuit by the five psychologists -- whose jobs were eliminated shortly after they wrote the memo -- claiming that the real reason they were dismissed was that they wrote the memo. Their suit argued that such a dismissal was a violation of their First Amendment rights.

The ruling is likely to interest different groups in academe for multiple reasons. One is that it cites a Supreme Court ruling limiting the free speech rights of public employees. Many advocates for academic freedom have worried about the impact of that ruling on faculty rights, but some have also expressed concern about the impact of the ruling on professionals like the psychologists in this case.

The other reason for the case's significance is that many counselors and counseling center directors nationwide have expressed concern about the 2012 reorganization of the Georgia State counseling center that resulted in the lost jobs. Georgia State said at the time that it would outsource most counseling services, a move that struck many counselors as shortsighted in that it would be more difficult for students to build relationships with their counselors. The university said the move would improve patient services.

The legal issues were largely separate from the psychology issues.

The central issue is how to apply various Supreme Court decisions, such as the 2006 ruling Garcetti v. Ceballos, to the Georgia State psychologists. The Garcetti case concerned the Los Angeles district attorney's office, and generally limited the First Amendment rights of public employees. Faculty groups have argued that it should not apply to faculty members, and some have said that it shouldn't apply to higher education employees generally. In the Georgia State case, Garcetti was cited.

A district court found, and the appeals court affirmed, that the memo the psychologists wrote was "employee speech" related to their duties and thus not protected by the First Amendment.

The memo in question was sent to senior university leaders and said that the counseling center was being seriously mismanaged in ways that not only treated employees such as the psychologists unfairly but that endangered the quality of care offered to Georgia State students. The university has consistently denied these charges or that the memo was the real reason for the psychologists' dismissal.

But the appeals court decision said that -- as in the Garcetti case -- the memo in question was written "pursuant to … duties" of the employees. The "controlling factor" in analysis, the appeals court said, was whether the memo was about subjects related to job duties. The appeals court said this was the case.

A further issue was whether the subjects of the memo (alleged mismanagement of the counseling center) was a matter of "public concern."

The psychologists argued that they wrote the memo with an important issue for public concern, namely the well-being of Georgia State students. But the appeals court majority accepted the university's argument that the memo was "nothing more than an internal complaint.

"The district court correctly concluded, however, that the form, content and context of the memorandum … indicate that appellants were speaking as employees on conduct that interfered with their job responsibilities, rather than as citizens on matters of social, political or other civic concern."

A dissent in the case, however, took issue with both parts of the majority opinion. The dissent first said that speaking out on their boss was not a regular job duty of the psychologists, and thus should not be considered a job duty.

Further, the dissent rejected the idea that the mental health of Georgia State students isn't a matter of public concern. The psychologists' memo deserves First Amendment protections, the dissent said, because it was about "practices [that] impeded their ability to identify students who might be a risk to themselves or others and to provide effective counseling services. I do not view these health and safety concerns as merely personal gripes or employment-related grievances."


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