In the early 1970s, when many public schools in the South finally integrated, some teachers may have had the audacity to complain to their principals about the problems of racial discrimination. But only one teacher’s case reached the U.S. Supreme Court and established a protective precedent in First Amendment jurisprudence. That teacher was Mississippian Bessie Burnley Givhan.
Givhan, an African-American junior high English teacher, complained to her principal in 1971 that her school — which had a large majority of African-American students — was not receiving the same quantity of supplies as schools with a majority of white students. She complained more generally about racial discrimination in the school district. The result was that Givhan’s teaching contract was not renewed and she did not teach for 12 years.
But Givhan fought back. The result was a victory for public employees nationwide.
In the beginning of the 1969-70 school year, Givhan taught at the all-black Norma O’Bannon School in Greenville, Miss. In February 1970 the school district was integrated and students of both races were, in Givhan’s words, “dumped into one school” — Riverside High School in Avon, about 30 miles south of Greenville.
“It was a process of mass integration,” recalled Givhan, now 74. “It was sort of akin to what is happening with the Hispanic community now. You had two different communities, two different peoples being brought together. Some in the white community wanted to totally control the slaves who were coming in to the schools. We were the slaves that were coming in.”
In 1971, the schools were divided again and Givhan and her husband, William, also a teacher in the school district, were sent to Glen Allan High School.
“Glen Allan was a step child,” Givhan says. “You could not compare the resources we had at Glen Allan to what the (area’s) other two schools, who had more white students, had.”
‘We don’t have to tell you why’
Givhan tried to tell such things to her principal, a white man named James Leach who had been a social studies teacher at Riverside. “I requested a pointer for my blackboard and an eraser, things of this sort that I needed as a teacher,” she said. “For this I was labeled ‘hostile’ and ‘unreasonable.’ I don’t think he understood a black voice speaking out. They were not used to a black woman questioning them.”
In May 1971, the school district informed Givhan that her services were no longer needed, though they did retain her husband. “It was a shock,” Givhan says of her dismissal. “I wanted to know why and they said, ‘We don’t have to tell you why,’ and I replied, ‘Yes, you do.’”
Not taking the dismissal lying down, Givhan went to court, filing a First Amendment retaliation claim — alleging she had been fired for exercising her free-speech rights.
“I didn’t grow up on a plantation,” she said in a recent interview from her home in Pontotoc, Miss. “I grew up on my father’s farm. I figured I had a voice just like they had.” Asked why she sued, she said: “Because I was wronged. My family suffered because of this; we went from two incomes to one.” Givhan never imagined that her case would take as long as it did, but says, “I was willing to stick it out to the end.”
Because of her lawsuit, no school in the area would hire her. She managed to find part-time work with the Delta Resources Committee, an offspring of Delta Ministries, as a community counselor. She later worked for the United Methodist Church and became president of the local NAACP (National Association for the Advancement of Colored People) branch.
In federal district court, a trial judge held a two-day bench trial (a trial without a jury) and found in Givhan’s favor. He determined that the school district’s reasons for her firing were pretexts and that the real reason was that she had complained about policies and practices. The district court judge said school officials fired Givhan in retaliation for her speech in violation of her First Amendment rights.
The school district appealed successfully to the 5th U.S. Circuit Court of Appeals. In its 1977 ruling, the 5th Circuit did not find the trial judge’s findings of fact erroneous but held that Givhan’s First Amendment claims must fail because she had not made her complaints public. The appeals court wrote that “private expression by a public employee is not constitutionally protected.”
To the Supreme Court
After losing in the 5th Circuit, Givhan and her attorneys appealed to the U.S. Supreme Court, the court of last resort. She even flew to Washington, D.C., to hear oral arguments in her case. She did not know what to expect but believed strongly that she should win.
“It has been a long time, but I recall that when the justices with their black robes entered the courtroom, that it was akin to a horse race, as all the justices came out together,” she said. “I was particularly impressed with Thurgood Marshall.”
On Jan. 9, 1979, the U.S. Supreme Court issued its opinion in Givhan v. Western Line Consolidated School District. The Court unanimously ruled that the 5th Circuit had erred in its analysis. Associate Justice William Rehnquist — considered the Court’s most conservative jurist — wrote: “We are unable to agree that private expression of one’s views is beyond constitutional protection, and therefore reverse the Court of Appeals’ judgment and remand the case so that it may consider the contentions of the parties freed from this erroneous view of the First Amendment.”
Rehnquist, who became chief justice in 1986, explained that the Court’s public employee free-speech cases “do not support the conclusion that a public employee forfeits his protection against governmental abridgement of freedom of speech if he decides to express his views privately rather than publicly.”
“Neither the Amendment itself nor our decisions indicate that this freedom is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public,” Rehnquist wrote. “We decline to adopt such a view of the First Amendment.”
However, the Court’s decision did not mean an outright victory for Givhan, because of a 1977 Supreme Court decision, Mt. Healthy City Bd. of Educ. v. Doyle. In Mt. Healthy, the Court said that once a public employee shows that his constitutionally protected conduct played a “substantial” role in his termination, the employer can still defend its actions by proving that it would have reached the same decision even without the employee’s protected conduct.
This meant that on remand, the school district still had an opportunity to show that it would have dismissed Givhan whether she had complained about racial discrimination or not. On remand, the district court framed the issue as “would Givhan have been re-employed but for her exercise of First Amendment protected rights.” In 1979, the district court ruled in favor of Givhan and found the school district’s other justifications pretexual, after-the-fact rationalizations. The district court entered an order requiring the school district to pay Givhan back pay, attorneys fees and reinstate her to a teaching position.
The school district appealed again to the 5th Circuit, the forum where it had prevailed years earlier. However, this time, in 1982, the 5th Circuit affirmed the district court and ruled for Givhan. The appeals court concluded that the district’s court’s findings of fact were not clearly erroneous and agreed that Givhan was entitled to back pay, attorney’s fees and reinstatement.
Back to school
As a result of her long-awaited court victory, Givhan had a major choice — whether to return to school. She had a right to her job as a result of the reinstatement order by the court. But did she want to return?
“It was really a big decision,” she says. “It was like the show, ‘Deal or No Deal.’ It was a tough call. I had been working for 12 years in the community but I decided to return mainly on behalf of the other teachers who I knew were suffering. For them, I went on back to see if I could make positive change.”
“A lot of people in the community told me that ‘nobody else could have withstood the pressure and do what I did.’ I think part of this came from my mother, who was a very strong voice. She liked to speak about what is right and wasn’t afraid of anybody, black or white.”
Though Givhan never received an apology from the school district, she described her next five years of teaching, from about 1983 to 1988, as “beautiful years.” Then she and William retired from the school system, her husband having by then become a Methodist minister and pastored a church. In 1994, Givhan herself became a Methodist minister and retired from church work a few years ago.
Givhan says her 12-year legal battle with the school district “gave me more faith in the justice system.” She added, “I believe justice can be done. It can prevail if it gets into the right hands.”
She said it still “blows her mind in a positive way” that she was a prevailing litigant before the United States Supreme Court.
More than a prevailing litigant, Givhan will forever be remembered as a part of First Amendment history. The principles from the Givhan case remain important in 2006. For many years, Givhan was cited for the principle that speech about racial discrimination is a matter of public concern that at least invites First Amendment review.
Before the U.S. Supreme Court’s recent public employee free-speech decision in Garcetti v. Ceballos, First Amendment expert Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, said that “Givhan will be an important precedent” for the decision.
In Garcetti, the U.S. Supreme Court determined that public employees do not have First Amendment protection for “statements made pursuant to their official duties.” But the majority in Garcetti did not overrule Givhan; instead, they distinguished it, or compared and contrasted it, with Garcetti. Citing Givhan twice, Justice Anthony Kennedy wrote: “Employees in some instances may receive First Amendment protection for expressions made at work. … The First Amendment protects some expressions related to the speaker’s job.”
Justices John Paul Stevens and David Souter also cited Givhan in their dissenting opinions. “We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school’s racist employment practices to the principal,” Stevens wrote.
Souter cited Givhan at least four times in his dissent.
Although Garcetti v. Ceballos was a defeat for public employees, Givhan stands as a vital precedent ensuring that not all public employees lose constitutional protection when they speak out against injustices at work.
To the extent that public employees still possess First Amendment rights, they all owe a debt of gratitude to Bessie B. Givhan, who had the courage to speak out against racial discrimination more than 35 years ago.