Thursday, June 29, 2006

Bailey vs. Missouri DESE, Wrong

Granted, I'm not a law student or even trained in law in any way. But a simple reading of the decision I think demonstrates that if nothing, this case (full text here) has a lot of potential for appeal.
A little background. Bailey was a psychologist for the Missouri Department of Elementary and Secondary Education (DESE) who is he suing (Bailey v. Missouri DESE). DESE implemented a trial program with a number of problems, most notably for Bailey, a quota system that aimed to designate a certain percentage of students as disabled every year (inane, I know). Anyway, Bailey felt that a quota on something like this was dumb and so he mentioned it, repeatedly, to those involved in the program, trying to fix it. Now, he stepped on a lot of toes etc in the process and ultimately wound up fired. He’s suing on the basis that his complaints were constitutionally protected free speech.

This standard is footnoted in the case:

"To succeed on a First Amendment retaliation claim, a public employee
plaintiff must show: (1) he engaged in protected speech, that is, speech on a matter
of public concern; (2) his interest as a citizen in commenting on the issue outweighs
the public employer’s interest in promoting efficient public service; and (3) his
speech was a motivating factor in the action taken against him."

"The first issue is a question of law, and was the subject of the district court’s judgment...The second issue is the Pickering balancing test. It is a question of law and was also the subject of the district court’s ruling, although its underlying factual questions should be and were submitted to the jury...The third issue is one of fact and was determined by the jury’s verdicts."


So, on #3, the jury sided with Bailey, agreeing that the incidents of speech in question were the motivating factor in the case.

#1, I think, is obviously on his side too. Inefficient, inane programs that harm the education system are a matter of serious public concern, and he was right to try and press for change.

#2 is a bit more difficult. Someone not willing to buy into the system inherently causes problems and by that definition I think fails the test. But there’s another way, which I prefer, to look at it. To refresh,

"His interest as a citizen in commenting on the issue outweighs
the public employer’s interest in promoting efficient public service."

If the employer ISN'T promoting efficient public service, but quite the opposite, then I think that that standard fails too. I think this case raises some really important questions about the way American bureaucracy will evolve into the 21st century, and whether it will be able to keep pace with the organic developments taking place in much of the private sector. This guy was obviously in the way, but frankly, I think it’s pretty clear he was also in the right.

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