Transforming the Public Employee Speech Standard in Posey v. Lake Pend Oreille: More than Meets the Eye

I. INTRODUCTION Since the middle of last century, the United States Supreme Court has evaluated speech restrictions imposed by the government on its employees with an evolving standard that balances the interests of government efficiency and free speech. This doctrine has been gradually refined by case law capped by the Court's 2006 decision in Garcetti v. Ceballos, crystallizing a three-part inquiry into the protected status of public employee speech under the First Amendment. In its 2008 opinion, Posey v. Lake Pend Oreille School District No. 84,2 the Ninth Circuit addressed a specific implication of the Garcetti decision, deciding whether the Supreme Court's latest innovation in its protected status inquiry presented a purely legal question, as historically treated, or a mixed question of fact and law. In deciding that Garcetti transformed the inquiry into a mixed question, the Ninth Circuit significantly shifted the delicate balance established by the High Court over decades, opening the door to prolonged factual trials and increased settlement costs in public employee retaliation claims. The circuit court's twist on the legal review standard of the test bucks an ingrained practice of constitutional safeguarding by the courts in the contours between free speech and its competing interests and threatens to upset the Supreme Court's carefully crafted compromise. II. FACTS AND PROCEDURAL HISTORY The case stems from a lawsuit filed by Robert Posey against Lake Pend Oreille School District No. 84, alleging that the School District's elimination of his position constituted retaliation in violation of the First Amendment.3 In Posey's capacity as a "Security Specialist" for Sandpoint High School, he became concerned about what he perceived to be certain inadequacies in the school's safety and security policies and enforcement of these policies.4 After failing to generate a satisfactory response from the school's principal, Posey expressed his concerns in a letter delivered to several school and district administrators.5 The letter addressed concerns about various flaws in Sandpoint's policies and the school administration's response to related problems, as well as Posey's personal grievances stemming from his ongoing tension with the school's administration.6 Following the letter's delivery, Posey met with two of the administrators at his home, outside of school hours, to discuss his concerns.7 Sometime later, Posey learned that his current duties would be consolidated, along with several other employees' responsibilities, in a new position.8 Posey applied for the new position but was not hired, effectively terminating his employment with the School District.9 Following the School District's grievance and appeal process, which ultimately failed to reinstate him, Posey filed suit in Idaho state court under 42 U.S.C. § 1983, asserting that the District's elimination of his position and failure to rehire him amounted to retaliation for his letter and meeting with school administrators, in violation of the First Amendment.10 The School District removed the case to Federal District Court and, following discovery, moved for summary judgment.11 The School District argued that Posey's speech was not protected by the First Amendment because he made the statements pursuant to his duties as "Security Specialist."12 The district court agreed and held, as a matter of law in accordance with the United States Supreme Court's decision in Garcetti v. Ceballos,13 that Posey's speech was not protected by the First Amendment.14 According to Garcetti, the district court explained, employee statements made "'pursuant to their official duties'" are not constitutionally protected speech.15 Under this standard, the district court concluded that Posey spoke in his capacity as an employee of the School District.16 He did not communicate through the newspaper or his legislators, as a private citizen might, and his statements stemmed from the types of activities that he was paid to perform. …