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Tuesday, October 31, 2006

Learning the Hard Way

Well, that didn’t take long. Remember Garcetti v. Ceballos from this spring? The case where, by a narrow 5-4 margin, the Supreme Court told public employees the Constitution doesn't protect them when they speak up to report workplace waste, fraud or corruption? At the time, we mentioned a "dizzying array" of hypothetical scenarios where Garcetti leaves government whistleblowers exposed.

Not so hypothetical any more.

Lillie Battle started working in the financial aid office at Fort Valley State University in Georgia in 1987. Beginning in 1995, she became aware of irregular activity in the administration of the federal work study program. She concluded that her supervisor was “falsifying information, awarding financial aid to ineligible recipients, making excessive awards, and forging documents.”

Battle tried to do the right thing. On a number of occasions, she confronted her supervisor directly. She also met with the university president to alert him to her concerns. All to no avail. But Battle persisted. She met with her supervisor’s boss and again with the university president. Still no action.

In May 1998, despite having worked for the university for eleven years, and despite having always received “exceeds requirements” performance ratings, Battle was told her contract would not be renewed. She appealed the decision, complaining it was retaliation for her reports of impropriety, but a grievance committee ruled against her.

A month after receiving the initial termination notice, Battle took her complaints -- and over sixty pages of documents showing potential fraud -- to a higher authority: the Department of Education. Almost immediately thereafter, the state audited Fort Valley State University and found “serious noncompliance with federal regulations and risk factors for fraud.” Subsequent audits reached the same results. Battle’s former supervisor transferred out of the financial aid office and later resigned, and the university had to pay $2,167,941 to settle the case.

Battle sued the university. Among other things, she alleged that its refusal to renew her contract was unconstitutional retaliation for the complaints she made.

Might have been a good case -- until Garcetti.

Because of the Supreme Court's decision, the Eleventh Circuit was obligated to dismiss Battle's constitutional claim. Consistent with Garcetti, a three-judge panel of the court unanimously held that because Battle’s statements were made as part of her job, they were not protected speech under the First Amendment. And because of the panel’s arguably pinched ruling on a non-constitutional claim that Battle raised, she is now left with no legal recourse for the harm she apparently suffered for exposing what the state of Georgia confirmed to be truthful information about rampant irregularities.

While the Garcetti decision was 5-4, Battle has Justice Alito, in particular, to thank for her predicament. It was his replacement of Justice O'Connor on the Court in the middle of last term that almost certainly flipped the result in Garcetti. But for his confirmation, Battle and the rest of the nation’s 21 million public employees might still enjoy constitutional backing to ensure the safety, competence and integrity of our government workplaces.

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