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Will Teachers Shed Their First Amendment Rights at the Schoolhouse Gate? The Eleventh Circuit's Post-Garcetti Jurisprudence

39 Pages Posted: 25 Feb 2009 Last revised: 3 May 2009

JoNel Newman

University of Miami - School of Law

Date Written: February 24, 2009

Abstract

Since the 1960s, educators have enjoyed a significant (if confusing) array of First Amendment privileges. The confusion resulted from tensions between principles of academic freedom (both of the educator and the educational institution) and the public employee speech doctrine. The Supreme Court's 2006 decision in Garcetti v. Ceballos threw approximately forty years of First Amendment protections for educators into grave doubt. While Garcetti explicitly declined to address the unique situation of educators, at least with respect to academic freedom issues, the Eleventh Circuit lost no time in adapting the Garcetti reasoning to educational settings, however inexact the fit.

This article begins by examining the various doctrinal threads that previously comprised First Amendment protections for educators, and then analyzes how Garcetti and the Eleventh Circuit's incorporation of Garcetti into its jurisprudence jeopardize important First Amendment rights in the educational setting. The article concludes with a proposal for re-thinking the Eleventh Circuit's First Amendment jurisprudence as it applies to educators.

Suggested Citation

Newman, JoNel, Will Teachers Shed Their First Amendment Rights at the Schoolhouse Gate? The Eleventh Circuit's Post-Garcetti Jurisprudence (February 24, 2009). University of Miami Legal Studies Research Paper No. 2009-03. Available at SSRN: https://ssrn.com/abstract=1348572 or http://dx.doi.org/10.2139/ssrn.1348572

JoNel Newman (Contact Author)

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-4125 (Phone)
305-284-6407 (Fax)

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