The Georgia Supreme Court declined to review the free-speech case of Kelly Tucker, a public school teacher in Tift County who was suspended for five days for a Facebook post that was critical of the Black Lives Matter movement.
Following her suspension, Tucker filed a lawsuit in federal court, alleging a violation of her First Amendment, free-speech rights. She did not administratively appeal the suspension and required diversity training.
In October 2017, the Georgia Court of Appeals ruled that school officials were entitled to qualified immunity – a defense that protects government employers and defendants unless they violated clearly established constitutional law.
Tucker sought review from the Georgia Supreme Court. However, the Georgia High Court declined to review the case.
Justice Nels Peterson wrote a separate concurring opinion in Tucker v. Atwater. He agreed that the defendants were entitled to qualified immunity, because there was no U.S. Supreme Court opinion or opinion from the 11th U.S. Circuit Court of Appeals prohibiting school officials from disciplining a teacher for such expressive activity.
However, Peterson expressed “grave concerns” as to whether the school officials had overreached into the private life of their employee. He acknowledged that most public employee First Amendment claims involve an application of the so-called Pickering balancing test named after the U.S. Supreme Court’s decision in Pickering v. Board of Education (1968). Under this test, an employee’s right to speak on a matter of public concern or importance is balanced against a public employer’s right to an efficient, disruptive-free workplace.
Peterson wrote that there is a “significant question as to how Pickering applies to speech by public employees that neither implicates government nor occurs during the work day.”
Peterson worries with good reason that public employers should not be able to punish public employees for private comments made at home. “Government employers clearly have authority to control their employees in the course of their employment,” he concluded. “But it is something else entirely to hold that government employers can punish their employees based on viewpoints expressed in private speech, as the school officials did here.”
Peterson raises valid concerns in his concurring opinion. They should be taken seriously.