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The Story of Pickering v. Bd. of Education: Unconstitutional Conditions and Public Employment

FIRST AMENDMENT LAW STORIES, Richard W. Garnett & Andrew Koppelman eds., 2010

Marquette Law School Legal Studies Paper No. 10-35

30 Pages Posted: 11 Mar 2010 Last revised: 29 Aug 2010

Paul M. Secunda

Marquette University - Law School

Date Written: August 24, 2010

Abstract

The story of Pickering v. Bd. of Education, a foundational case in public employment law, prominently foreshadows more generally the coming prominence of the doctrine of unconstitutional conditions in constitutional law. Under that doctrine, the Supreme Court limits a government actor, like a government employer, from being able to condition governmental benefits, like public employment, on the basis of individuals forfeiting their constitutional rights. It would thus seem to follow that a public employee should not have to sacrifice constitutionally-protected rights in order to enjoy the benefits and privileges of public employment. Yet, today, that is far from the actual case.

So why have First Amendment public employee speech rights, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, suddenly diminished in recent years? I want to suggest in this contribution to First Amendment Law Stories that a certain jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Under the subsidy school of thought, in contexts as different as abortion funding to the provision of tax exemptions, the unconstitutional conditions doctrine has become largely toothless, as government actors can simply compel a given result by saying they are doing nothing but subsidizing (or not subsidizing) a right a citizen or public employee already has under the Constitution.

In order to more concretely illustrate the genesis of the unconstitutional conditions doctrine, and its recent distortions, this Chapter returns to an in-depth exploration of the case that started it all: Pickering v. Bd. of Education. Although the Court decided this case in Marvin Pickering’s favor, the resulting framework has, over the years, been interpreted by the Supreme Court in a manner that significantly limits public employee free speech rights.

Keywords: Pickering, Pickering v. Bd. of Education, public employee, government employee, free speech, First Amendment, unconstitutional conditions, government speech doctrine

Suggested Citation

Secunda, Paul M., The Story of Pickering v. Bd. of Education: Unconstitutional Conditions and Public Employment (August 24, 2010). FIRST AMENDMENT LAW STORIES, Richard W. Garnett & Andrew Koppelman eds., 2010; Marquette Law School Legal Studies Paper No. 10-35. Available at SSRN: https://ssrn.com/abstract=1567221

Paul M. Secunda (Contact Author)

Marquette University - Law School ( email )

Eckstein Hall
P.O. Box 1881
Milwaukee, WI 53201
United States

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