U.S. Supreme Court Pickering v. Board of Education, 391
U.S. 563 (1968) Pickering v. Board of Education of
Township High School District 205, Will
County No. 510 Argued March 27, 1968 Decided June 3, 1968 391
U.S. 563 APPEAL FROM THE SUPREME COURT OF
ILLINOIS Syllabus Appellee, Board of Education, dismissed appellant, a teacher,
for writing and publishing in a newspaper a letter criticizing the
Board's allocation of school funds between educational and athletic
programs and the Board's and superintendent's methods of informing,
or preventing the informing of, the school district's taxpayers of
the real reasons why additional tax revenues were being sought for
the schools. At a hearing, the Board charged that numerous
statements in the letter were false, and that the publication of
the statements unjustifiably impugned the Board and school
administration. The Board found all the statements false as
charged, and concluded that publication of the letter was
"detrimental to the efficient operation and administration of the
schools of the district" and that "the interests of the school
require[d] [appellant's dismissal]" under the applicable statute.
There was no evidence at the hearing as to the effect of
appellant's statements on the community or school administration.
The Illinois courts, reviewing the proceedings solely to determine
whether the Board's findings were supported by substantial evidence
and whether the Board could reasonably conclude that the
publication was "detrimental to the best interests of the schools,"
upheld the dismissal, rejecting appellant's claim that the letter
was protected by the First and Fourteenth Amendments, on the ground
that, as a teacher, he had to refrain from making statements about
the schools' operation "which, in the absence of such position, he
would have an undoubted right to engage in." Held: 1.

															"[T]he theory that public employment which may be denied
altogether may be subjected to any conditions, regardless of how
unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, 385 U.
S. 589 , 385 U. S.
605 -606 (1967). The teacher's interest as a citizen in
making public comment must be balanced against the State's interest
in promoting the efficiency of its employees' public services. P. 391 U. S.
568 .

															2. Those statements of appellant's which were substantially
correct regarded matters of public concern and presented no
questions Page 391 U. S. 564 of faculty discipline or harmony; hence those statements
afforded no proper basis for the Board's action in dismissing
appellant. Pp. 391 U. S.
569 -570.

															3. Appellant's statements which were false likewise concerned
issues then currently the subject of public attention and were
neither shown nor could be presumed to have interfered with
appellant's performance of his teaching duties or the schools'
general operation. They were thus entitled to the same protection
as if they had been made by a member of the general public, and,
absent proof that those false statements were knowingly or
recklessly made, did not justify the Board in dismissing appellant
from public employment. New York Times Co. v. Sullivan, 376 U. S. 254 (1964). Pp. 391 U. S.
570 -575. 36 Ill. 2d
568 , 225 N.E.2d 1 ,
reversed and remanded.

															MR. JUSTICE MARSHALL delivered the opinion of the Court.

															Appellant Marvin L. Pickering, a teacher in Township High School
District 205, Will County, Illinois, was dismissed from his
position by the appellee Board of Education for sending a letter to
a local newspaper in connection with a recently proposed tax
increase that was critical of the way in which the Board and the
district superintendent of schools had handled past proposals to
raise new revenue for the schools. Appellant's dismissal resulted
from a determination by the Board, after a full hearing, that the
publication of the letter was "detrimental to the efficient
operation and administration of the schools of the district" and
hence, under the relevant Page 391 U. S. 565 Illinois statute, Ill.Rev.Stat. c. 122, § 10-22.4 (1963), that
"interests of the school require[d] [his dismissal]."

															Appellant's claim that his writing of the letter was protected
by the First and Fourteenth Amendments was rejected. Appellant then
sought review of the Board's action in the Circuit Court of Will
County, which affirmed his dismissal on the ground that the
determination that appellant's letter was detrimental to the
interests of the school system was supported by substantial
evidence and that the interests of the schools overrode appellant's
First Amendment rights. On appeal, the Supreme Court of Illinois,
two Justices dissenting, affirmed the judgment of the Circuit
Court. 36 Ill. 2d
568 , 225 N.E.2d 1 (1967). We noted probable jurisdiction of appellant's claim that
the Illinois statute permitting his dismissal on the facts of this
case was unconstitutional as applied under the First and Fourteenth
Amendments. [ Footnote 1 ] 389
U.S. 925 (1967). For the reasons detailed below, we agree that
appellant's rights to freedom of speech were violated, and we
reverse. I In February of 1961, the appellee Board of Education asked the
voters of the school district to approve a bond issue to raise
$4,875,000 to erect two new schools. The proposal was defeated.
Then, in December of 1961, the Board submitted another bond
proposal to the voters which called for the raising of $5,500,000
to build two new schools. This second proposal passed, and the
schools were built with the money raised by the bond Page 391 U. S. 566 sales. In May of 1964, a proposed increase in the tax rate to be
used for educational purposes was submitted to the voters by the
Board and was defeated. Finally, on September 19, 1964, a second
proposal to increase the tax rate was submitted by the Board, and
was likewise defeated. It was in connection with this last proposal
of the School Board that appellant wrote the letter to the editor
(which we reproduce in an 391
U.S. 563 app|>Appendix to this opinion) that resulted in his
dismissal.

															Prior to the vote on the second tax increase proposal, a variety
of articles attributed to the District 205 Teachers' Organization
appeared in the local paper. These articles urged passage of the
tax increase and stated that failure to pass the increase would
result in a decline in the quality of education afforded children
in the district's schools. A letter from the superintendent of
schools making the same point was published in the paper two days
before the election and submitted to the voters in mimeographed
form the following day. It was in response to the foregoing
material, together with the failure of the tax increase to pass,
that appellant submitted the letter in question to the editor of
the local paper.

															The letter constituted, basically, an attack on the School
Board's handling of the 1961 bond issue proposals and its
subsequent allocation of financial resources between the schools'
educational and athletic programs. It also charged the
superintendent of schools with attempting to prevent teachers in
the district from opposing or criticizing the proposed bond
issue.

															The Board dismissed Pickering for writing and publishing the
letter. Pursuant to Illinois law, the Board was then required to
hold a hearing on the dismissal. At the hearing, the Board charged
that numerous statements in the letter were false, and that the
publication Page 391 U. S. 567 of the statements unjustifiably impugned the "motives, honesty,
integrity, truthfulness, responsibility and competence" of both the
Board and the school administration. The Board also charged that
the false statements damaged the professional reputations of its
members and of the school administrators, would be disruptive of
faculty discipline, and would tend to foment "controversy, conflict
and dissension" among teachers, administrators, the Board of
Education, and the residents of the district. Testimony was
introduced from a variety of witnesses on the truth or falsity of
the particular statements in the letter with which the Board took
issue. The Board found the statements to be false as charged. No
evidence was introduced at any point in the proceedings as to the
effect of the publication of the letter on the community as a whole
or on the administration of the school system in particular, and no
specific findings along these lines were made.

															The Illinois courts reviewed the proceedings solely to determine
whether the Board's findings were supported by substantial evidence
and whether, on the facts as found, the Board could reasonably
conclude that appellant's publication of the letter was
"detrimental to the best interests of the schools." Pickering's
claim that his letter was protected by the First Amendment was
rejected on the ground that his acceptance of a teaching position
in the public schools obliged him to refrain from making statements
about the operation of the schools "which in the absence of such
position he would have an undoubted right to engage in." It is not
altogether clear whether the Illinois Supreme Court held that the
First Amendment had no applicability to appellant's dismissal for
writing the letter in question or whether it determined that the
particular statements made in the letter were not entitled to First
Amendment protection. Page 391 U. S. 568 In any event, it clearly rejected Pickering's claim that, on the
facts of this case, he could not constitutionally be dismissed from
his teaching position. II To the extent that the Illinois Supreme Court's opinion may be
read to suggest that teachers may constitutionally be compelled to
relinquish the First Amendment rights they would otherwise enjoy as
citizens to comment on matters of public interest in connection
with the operation of the public schools in which they work, it
proceeds on a premise that has been unequivocally rejected in
numerous prior decisions of this Court. E.g., Wieman v.
Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U.
S. 479 (1960); Keyishian v. Board of Regents, 385 U. S. 589 (1967).

															"[T]he theory that public employment which may be denied
altogether may be subjected to any conditions, regardless of how
unreasonable, has been uniformly rejected." Keyishian v. Board of Regents, supra, at 385 U. S.
605 -606. At the same time, it cannot be gainsaid that
the State has interests as an employer in regulating the speech of
its employees that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in
general. The problem in any case is to arrive at a balance between
the interests of the teacher, as a citizen, in commenting upon
matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees. III The Board contends that

															"the teacher by virtue of his public employment has a duty of
loyalty to support his superiors in attaining the generally
accepted goals of education and that, if he must speak out
publicly, he should do so factually and accurately, commensurate
with Page 391 U. S. 569 his education and experience."

															Appellant, on the other hand, argues that the test applicable to
defamatory statements directed against public officials by persons
having no occupational relationship with them, namely, that
statements to be legally actionable must be made "with knowledge
that [they were] . . . false or with reckless disregard of whether
[they were] . . . false or not," New York Times Co. v.
Sullivan, 376 U. S. 254 , 376 U. S. 280 (1964), should also be applied to public statements made by
teachers. Because of the enormous variety of fact situations in
which critical statements by teachers and other public employees
may be thought by their superiors, against whom the statements are
directed, to furnish grounds for dismissal, we do not deem it
either appropriate or feasible to attempt to lay down a general
standard against which all such statements may be judged. However,
in the course of evaluating the conflicting claims of First
Amendment protection and the need for orderly school administration
in the context of this case, we shall indicate some of the general
lines along which an analysis of the controlling interests should
run.

															An examination of the statements in appellant's letter objected
to by the Board [ Footnote 2 ]
reveals that they, like the letter as a whole, consist essentially
of criticism of the Board's allocation of school funds between
educational and athletic programs, and of both the Board's and the
superintendent's methods of informing, or preventing the informing
of, the district's taxpayers of the real reasons why additional tax
revenues were being sought for the schools. The statements are in
no way directed towards any person with whom appellant would
normally be in Page 391 U. S. 570 contact in the course of his daily work as a teacher. Thus, no
question of maintaining either discipline by immediate superiors or
harmony among coworkers is presented here. Appellant's employment
relationships with the Board and, to a somewhat lesser extent, with
the superintendent are not the kind of close working relationships
for which it can persuasively be claimed that personal loyalty and
confidence are necessary to their proper functioning. Accordingly,
to the extent that the Board's position here can be taken to
suggest that even comments on matters of public concern that are
substantially correct, such as statements (1)-(4) of appellant's
letter, see 391
U.S. 563 app|>Appendix, infra may furnish grounds
for dismissal if they are sufficiently critical in tone, we
unequivocally reject it. [ Footnote
3 ]

															We next consider the statements in appellant's letter which we
agree to be false. The Board's original charges included
allegations that the publication of the letter damaged the
professional reputations of the Board and the superintendent and
would foment controversy and conflict among the Board, teachers,
administrators, and the residents of the district. However, no
evidence to support these allegations was introduced at the
hearing. So far as the record reveals, Pickering's letter was
greeted by everyone but its main target, the Board, with massive
apathy and total disbelief. The Board must, therefore, Page 391 U. S. 571 have decided, perhaps by analogy with the law of libel, that the
statements were per se harmful to the operation of the
schools.

															However, the only way in which the Board could conclude, absent
any evidence of the actual effect of the letter, that the
statements contained therein were per se detrimental to
the interest of the schools was to equate the Board members' own
interests with that of the schools. Certainly an accusation that
too much money is being spent on athletics by the administrators of
the school system (which is precisely the import of that portion of
appellant's letter containing the statements that we have found to
be false, see 391
U.S. 563 app|>Appendix, infra ) cannot reasonably be
regarded as per se detrimental to the district's schools.
Such an accusation reflects rather a difference of opinion between
Pickering and the Board as to the preferable manner of operating
the school system, a difference of opinion that clearly concerns an
issue of general public interest.

															In addition, the fact that particular illustrations of the
Board's claimed undesirable emphasis on athletic programs are false
would not normally have any necessary impact on the actual
operation of the schools, beyond its tendency to anger the Board.
For example, Pickering's letter was written after the defeat at the
polls of the second proposed tax increase. It could, therefore,
have had no effect on the ability of the school district to raise
necessary revenue, since there was no showing that there was any
proposal to increase taxes pending when the letter was written.

															More importantly, the question whether a school system requires
additional funds is a matter of legitimate public concern on which
the judgment of the school administration, including the School
Board, cannot, in a society that leaves such questions to popular
vote, be taken as conclusive. On such a question free and open Page 391 U. S. 572 debate is vital to informed decisionmaking by the electorate.
Teachers are, as a class, the members of a community most likely to
have informed and definite opinions as to how funds allotted to the
operation of the schools should be spent. Accordingly, it is
essential that they be able to speak out freely on such questions
without fear of retaliatory dismissal.

															In addition, the amounts expended on athletics which Pickering
reported erroneously were matters of public record on which his
position as a teacher in the district did not qualify him to speak
with any greater authority than any other taxpayer. The Board could
easily have rebutted appellant's errors by publishing the accurate
figures itself, either via a letter to the same newspaper or
otherwise. We are thus not presented with a situation in which a
teacher has carelessly made false statements about matters so
closely related to the day-to-day operations of the schools that
any harmful impact on the public would be difficult to counter
because of the teacher's presumed greater access to the real facts.
Accordingly, we have no occasion to consider at this time whether,
under such circumstances, a school board could reasonably require
that a teacher make substantial efforts to verify the accuracy of
his charges before publishing them. [ Footnote 4 ]

															What we do have before us is a case in which a teacher has made
erroneous public statements upon issues then currently the subject
of public attention, which are critical of his ultimate employer
but which are neither shown nor can be presumed to have in any way
either impeded the teacher's proper performance of his daily duties
in Page 391 U. S. 573 the classroom [ Footnote 5 ]
or to have interfered with the regular operation of the schools
generally. In these circumstances, we conclude that the interest of
the school administration in limiting teachers' opportunities to
contribute to public debate is not significantly greater than its
interest in limiting a similar contribution by any member of the
general public. IV The public interest in having free and unhindered debate on
matters of public importance -- the core value of the Free Speech
Clause of the First Amendment -- is so great that it has been held
that a State cannot authorize the recovery of damages by a public
official for defamatory statements directed at him except when such
statements are shown to have been made either with knowledge of
their falsity or with reckless disregard for their truth or
falsity. New York Times Co. v. Sullivan, 376 U.
S. 254 (1964); St. Amant v. Thompson, 390 U. S. 727 (1968). Compare Linn v. United Plant Guard Workers, 383 U. S. 53 (1966). The same test has been applied to suits for invasion of
privacy based on false statements where a "matter of public
interest" is involved. Time, Inc. v. Hill, 385 U.
S. 374 (1967). It is therefore perfectly clear that,
were appellant a member of the general public, the State's power to
afford the appellee Board of Education or its members any legal
right to sue him for writing the letter at issue here would be
limited by the requirement that the letter be judged by the
standard laid down in New York Times. Page 391 U. S. 574 This Court has also indicated, in more general terms, that
statements by public officials on matters of public concern must be
accorded First Amendment protection despite the fact that the
statements are directed at their nominal superiors. Garrison v.
Louisiana, 379 U. S. 64 (1964); Wood v. Georgia, 370 U. S. 375 (1962). In Garrison, the New York Times test was
specifically applied to a case involving a criminal defamation
conviction stemming from statements made by a district attorney
about the judges before whom he regularly appeared.

															While criminal sanctions and damage awards have a somewhat
different impact on the exercise of the right to freedom of speech
from dismissal from employment, it is apparent that the threat of
dismissal from public employment is nonetheless a potent means of
inhibiting speech. We have already noted our disinclination to make
an across-the-board equation of dismissal from public employment
for remarks critical of superiors with awarding damages in a libel
suit by a public official for similar criticism. However, in a case
such as the present one, in which the fact of employment is only
tangentially and insubstantially involved in the subject matter of
the public communication made by a teacher, we conclude that it is
necessary to regard the teacher as the member of the general public
he seeks to be.

															In sum, we hold that, in a case such as this, absent proof of
false statements knowingly or recklessly made by him, [ Footnote 6 ] a teacher's exercise of his
right to speak on issues of public importance may not furnish the
basis for his dismissal from public employment. Since no Page 391 U. S. 575 such showing has been made in this case regarding appellant's
letter, see 391
U.S. 563 app|>Appendix, infra, his dismissal for
writing it cannot be upheld and the judgment of the Illinois
Supreme Court must, accordingly, be reversed and the case remanded
for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurs
in the judgment of the Court for the reasons set out in his
concurring opinions in Time, Inc. v. Hill, 35 U.
S. 374 , 35 U. S. 401 , Rosenblatt v. Baer, 383 U. S. 75 , 383 U. S. 88 ,
and Garrison v. Louisiana, 379 U. S.
64 , 379 U. S. 80 ,
and in the separate opinions of MR. JUSTICE BLACK in Curtis
Publishing Co. v. Butts, 388 U. S. 130 , 388 U. S. 170 ,
and New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S.
293 .

															[ Footnote 1 ]

															Appellant also challenged the statutory standard on which the
Board based his dismissal as vague and overbroad. See Keyishian
v. Board of Regents, 385 U. S. 589 (1967); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U.
S. 479 (1960). Because of our disposition of this case,
we do not reach appellant's challenge to the statute on its
face.

															[ Footnote 2 ]

															We have set out in the 391
U.S. 563 app|>Appendix our detailed analysis of the specific
statements in appellant's letter which the Board found to be false,
together with our reasons for concluding that several of the
statements were, contrary to the findings of the Board,
substantially correct.

															[ Footnote 3 ]

															It is possible to conceive of some positions in public
employment in which the need for confidentiality is so great that
even completely correct public statements might furnish a
permissible ground for dismissal. Likewise, positions in public
employment in which the relationship between superior and
subordinate is of such a personal and intimate nature that certain
forms of public criticism of the superior by the subordinate would
seriously undermine the effectiveness of the working relationship
between them can also be imagined. We intimate no views as to how
we would resolve any specific instances of such situations, but
merely note that significantly different considerations would be
involved in such cases.

															[ Footnote 4 ]

															There is likewise no occasion furnished by this case for
consideration of the extent to which teachers can be required by
narrowly drawn grievance procedures to submit complaints about the
operation of the schools to their superiors for action thereon
prior to bringing the complaints before the public.

															[ Footnote 5 ]

															We also note that this case does not present a situation in
which a teacher's public statements are so without foundation as to
call into question his fitness to perform his duties in the
classroom. In such a case, of course, the statements would merely
be evidence of the teacher's general competence, or lack thereof,
and not an independent basis for dismissal.

															[ Footnote 6 ]

															Because we conclude that appellant's statements were not
knowingly or recklessly false, we have no occasion to pass upon the
additional question whether a statement that was knowingly or
recklessly false would, if it were neither shown nor could
reasonably be presumed to have had any harmful effects, still be
protected by the First Amendment. See also n 5, supra. | 391
U.S. 563 app| APPENDIX TO OPINION OF THE COURT A. Appellant's letter LETTERS TO THE EDITOR **** Graphic Newspapers, Inc. Thursday, September 24, 1964, Page 4 Dear Editor:

															I enjoyed reading the back issues of your paper which you loaned
to me. Perhaps others would enjoy reading them in order to see just
how far the two new high schools have deviated from the original
promises by the Board of Education. First, let me state that I am
referring to the February thru November, 1961 issues of your paper,
so that it can be checked.

															One statement in your paper declared that swimming pools,
athletic fields, and auditoriums had been left out of the program.
They may have been left out but they got put back in very quickly,
because Lockport West has both an auditorium and athletic field. In
fact, Lockport West has a better athletic field than Lockport
Central. It has a track that isn't quite regulation distance
even Page 391 U. S. 576 though the board spent a few thousand dollars on it. Whose fault
is that? Oh, I forgot, it wasn't supposed to be there in the first
place. It must have fallen out of the sky. Such responsibility has
been touched on in other letters but it seems one just can't help
noticing it. I am not saying the school shouldn't have these
facilities, because I think they should, but promises are promises,
or are they?

															Since there seems to be a problem getting all the facts to the
voter on the twice defeated bond issue, many letters have been
written to this paper and probably more will follow, I feel I must
say something about the letters and their writers. Many of these
letters did not give the whole story. Letters by your Board and
Administration have stated that teachers' salaries total $1,297,746
for one year. Now that must have been the total payroll, otherwise
the teachers would be getting $10,000 a year. I teach at the high
school and I know this just isn't the case. However, this shows
their "stop at nothing" attitude. To illustrate further, do you
know that the superintendent told the teachers, and I quote, "Any
teacher that opposes the referendum should be prepared for the
consequences." I think this gets at the reason we have problems
passing bond issues. Threats take something away; these are insults
to voters in a free society. We should try to sell a program on its
merits, if it has any.

															Remember those letters entitled "District 205 Teachers Speak," I
think the voters should know that those letters have been written
and agreed to by only five or six teachers, not 98% of the teachers
in the high school. In fact, many teachers didn't even know who was
writing them. Did you know that those letters had to have the
approval of the superintendent before they could be put in the
paper? That's the kind of totalitarianism teachers Page 391 U. S. 577 live in at the high school, and your children go to school
in.

															In last week's paper, the letter written by a few uninformed
teachers threatened to close the school cafeteria and fire its
personnel. This is ridiculous, and insults the intelligence of the
voter because properly managed school cafeterias do not cost the
school district any money. If the cafeteria is losing money, then
the board should not be packing free lunches for athletes on days
of athletic contests. Whatever the case, the taxpayer's child
should only have to pay about 30� for his lunch instead of 35� to
pay for free lunches for the athletes.

															In a reply to this letter, your Board of Administration will
probably state that these lunches are paid for from receipts from
the games. But $20,000 in receipts doesn't pay for the $200,000 a
year they have been spending on varsity sports while neglecting the
wants of teachers.

															You see we don't need an increase in the transportation tax
unless the voters want to keep paying $50,000 or more a year to
transport athletes home after practice and to away games, etc. Rest
of the $200,000 is made up in coaches' salaries, athletic
directors' salaries, baseball pitching machines, sodded football
fields, and thousands of dollars for other sports equipment.

															These things are all right, provided we have enough money for
them. To sod football fields on borrowed money and then not be able
to pay teachers' salaries is getting the cart before the horse.

															If these things aren't enough for you, look at East High. No
doors on many of the classrooms, a plant room without any sunlight,
no water in a first aid treatment room, are just a few of many
things. The taxpayers were really taken to the cleaners. A part of
the sidewalk in front of the building has already collapsed. Maybe
Mr. Hess would be interested to know that we need blinds on the
windows in that building also. Page 391 U. S. 578 Once again, the board must have forgotten they were going to
spend $3,200,000 on the West building and $2,300,000 on the East
building.

															As I see it, the bond issue is a fight between the Board of
Education that is trying to push tax supported athletics down our
throats with education, and a public that has mixed emotions about
both of these items because they feel they are already paying
enough taxes, and simply don't know whom to trust with any more tax
money.

															I must sign this letter as a citizen, taxpayer and voter, not as
a teacher, since that freedom has been taken from the teachers by
the administration. Do you really know what goes on behind those
stone walls at the high school?

															Respectfully,

															Marvin L. Pickering. B. Analysis. The foregoing letter contains eight principal statements which
the Board found to be false. [ Footnote
2/1 ] Our independent review of the record [ Footnote 2/2 ] convinces us that Justice Page 391 U. S. 579 Schaefer was correct in his dissenting opinion in this case when
he concluded that many of appellant's statements which were found
by the Board to be false were, in fact, substantially correct. We
shall deal with each of the statements found to be false in turn.
(1) Appellant asserted in his letter that the two new high schools
when constructed deviated substantially from the original promises
made by the Board during the campaign on the bond issue about the
facilities they would contain. The Board based its conclusion that
this statement was false on its determination that the promises
referred to were those made in the campaign to pass the second bond
issue in December of 1961. In the campaign on the first bond issue
the Board stated that the plans for the two schools did not include
such items as swimming pools, auditoriums, and athletic fields. The
publicity put out by the Board on the second bond issue mentioned
nothing about the addition of an auditorium to the plans and also
mentioned nothing specific about Page 391 U. S. 580 athletic fields, although a general reference to "state required
physical education" facilities was included that was similar to a
reference made in the material issued by the Board during the first
campaign.

															In sum, the Board first stated that certain facilities were not
to be included in the new high schools as an economy measure,
changed its mind after the defeat of the first bond issue and
decided to include some of the facilities previously omitted, and
never specifically or even generally indicated to the taxpayers the
change. Appellant's claim that the original plans, as disclosed to
the public, deviated from the buildings actually constructed is
thus substantially correct and his characterization of the Board's
prior statement as a "promise" is fair as a matter of opinion. The
Board's conclusion to the contrary based on its determination that
appellant's statement referred only to the literature distributed
during the second bond issue campaign is unreasonable in that it
ignores the word "original" that modifies "promises" in appellant's
letter.

															(2) Appellant stated that the Board incorrectly informed the
public that "teachers' salaries" total $1,297,746 per year. The
Board found that statement false. However, the superintendent of
schools admitted that the only way the Board's figure could be
regarded as accurate was to change the word "teachers" to
"instructional" whereby the salaries of deans, principals,
librarians, counselors, and four secretaries at each of the
district's three high schools would be included in the total.
Appellant's characterization of the Board's figure as incorrect is
thus clearly accurate.

															(3) Pickering claimed that the superintendent had said that any
teacher who did not support the 1961 bond issue referendum should
be prepared for the consequences. The Board found this claim false.
However, the statement was corroborated by the testimony of two
other teachers, although the superintendent denied making the Page 391 U. S. 581 remark attributed to him. The Illinois Supreme Court appears to
have agreed that something along the lines stated by appellant was
said, since it relied, in upholding the Board's finding that
appellant's version of the remark was false, on testimony by one of
the two teachers that he interpreted the remark to be a prediction
about the adverse consequences for the schools should the
referendum not pass, rather than a threat against noncooperation by
teachers. However, the other teacher testified that he didn't know
how to interpret the remark. Accordingly, while appellant may have
misinterpreted the meaning of the remark, he did not misreport
it.

															(4) Appellant's letter stated that letters from teachers to
newspapers had to have the approval of the superintendent before
they could be submitted for publication. The Board relied in
finding this statement false on the testimony by the superintendent
that no approval was required by him. However, the Handbook for
Teachers of the district specifically stated at that time that
material submitted to local papers should be checked with the
building principal and submitted in triplicate to the publicity
coordinator. In particular, the teachers' letters to which
appellant was specifically referring in his own letter had, in
fact, been submitted to the superintendent prior to their
publication. Thus, this statement is substantially correct.

															The other four statements challenged by the Board, are factually
incorrect in varying degrees. (5) Appellant's letter implied that
providing athletes in the schools with free lunches meant that
other students must pay 35� instead of 30� for their lunches. This
statement is erroneous in that, while discontinuing free lunches
for athletes would have permitted some small decrease in the 35�
charge for lunch to other students, the decrease would not have
brought the price down to 30�. (6) Appellant claimed that the Board
had been spending $200,000 a year on athletics while neglecting the
wants Page 391 U. S. 582 of teachers. This claim is incorrect in that the $200,000 per
year figure included over $130,000 of nonrecurring capital
expenditures. (7) Appellant also claimed that the Board had been
spending $50,000 a year on transportation for athletes. This claim
is completely false, in that the expenditures on travel for
athletes per year were about $10,000. (8) Finally, appellant stated
that football fields had been sodded on borrowed money, while the
Board had been unable to pay teachers' salaries. This statement is
substantially correct as to the football fields being sodded with
borrowed money, because the money spent was the proceeds of part of
the bond issue, which can fairly be characterized as borrowed. It
is incorrect insofar as it suggests that the district's teachers
had actually not been paid upon occasion, but correct if taken to
mean that the Board had at times some difficulty in obtaining the
funds with which to pay teachers. The manner in which the last four
statements are false is perfectly consistent with good faith error,
and there is no evidence in the record to show that anything other
than carelessness or insufficient information was responsible for
their being made.

															[ Footnote 2/1 ]

															We shall not bother to enumerate some of the statements which
the Board found to be false because their triviality is so readily
apparent that the Board could not rationally have considered them
as detrimental to the interests of the schools regardless of their
truth or falsity.

															[ Footnote 2/2 ]

															This Court has regularly held that, where constitutional rights
are in issue an independent examination of the record will be made
in order that the controlling legal principles may be applied to
the actual facts of the case. E.g., Norris v. Alabama, 294 U. S. 587 (1935); Pennekamp v. Florida, 328 U.
S. 331 (1946); New York Times Co. v. Sullivan, 376 U. S. 254 , 376 U. S. 285 (1964). However, even in cases where the upholding or rejection of
a constitutional claim turns on the resolution of factual
questions, we also consistently give great, if not controlling,
weight to the findings of the state courts. In the present case,
the trier of fact was the same body that was also both the victim
of appellant's statements and the prosecutor that brought the
charges aimed at securing his dismissal. The state courts made no
independent review of the record, but simply contented themselves
with ascertaining, in accordance with statute, whether there was
substantial evidence to support the Board's findings.

															Appellant requests us to reverse the state courts' decisions
upholding his dismissal on the independent ground that the
procedure followed above deprived him of due process in that he was
not afforded an impartial tribunal. However, appellant makes this
contention for the first time in this Court, not having raised it
at any point in the state proceedings. Because of this, we decline
to treat appellant's claim as an independent ground for our
decision in this case. On the other hand, we do not propose to
blind ourselves to the obvious defects in the factfinding process
occasioned by the Board's multiple functioning vis-a-vis appellant. Compare Tumey v. Ohio, 273 U.
S. 510 (1927); In re Murchison, 349 U.
S. 133 (1955). Accordingly, since the state courts have
at no time given de novo consideration to the statements
in the letter, we feel free to examine the evidence in this case
completely independently and to afford little weight to the factual
determinations made by the Board.

															MR. JUSTICE WHITE, concurring in part and dissenting in
part.

															The Court holds that truthful statements by a school teacher
critical of the school board are within the ambit of the First
Amendment. So also are false statements innocently or negligently
made. The State may not fire the teacher for making either unless,
as I gather it, there are special circumstances, not present in
this case, demonstrating an overriding state interest, such as the
need for confidentiality or the special obligations which a teacher
in a particular position may owe to his superiors. [ Footnote 3/1 ] Page 391 U. S. 583 The core of today's decision is the holding that Pickering's
discharge must be tested by the standard of New York Times Co.
v. Sullivan, 376 U. S. 254 (1964). To this extent I am in agreement.

															The Court goes on, however, to reopen a question I had thought
settled by New York Times and the cases that followed it,
particularly Garrison v. Louisiana, 379 U. S.
64 (1964). The Court devotes several pages to
reexamining the facts in order to reject the determination below
that Pickering's statements harmed the school system, ante at 391 U. S.
570 -573, when the question of harm is clearly irrelevant
given the Court's determination that Pickering's statements were
neither knowingly nor recklessly false and its ruling that, in such
circumstances a teacher may not be fired even if the statements are
injurious. The Court then gratuitously suggests that, when
statements are found to be knowingly or recklessly false, it is an
open question whether the First Amendment still protects them
unless they are shown or can be presumed to have caused harm. Ante at 391 U. S. 574 ,
n. 6. Deliberate or reckless falsehoods serve no First Amendment
ends and deserve no protection under that Amendment. The Court
unequivocally recognized this in Garrison, where after
reargument the Court said that "the knowingly false statement and
the false statement made with reckless disregard of the truth, do
not enjoy constitutional protection." 379 U.S. at 379 U. S. 75 .
The Court today neither Page 391 U. S. 584 explains nor justifies its withdrawal from the firm stand taken
in Garrison. As I see it, a teacher may be fired without violation
of the First Amendment for knowingly or recklessly making false
statements regardless of their harmful impact on the schools. As
the Court holds, however, in the absence of special circumstances
he may not be fired if his statements were true or only negligently
false, even if there is some harm to the school system. I therefore
see no basis or necessity for the Court's foray into factfinding
with respect to whether the record supports a finding as to injury.
[ Footnote 3/2 ] If Pickering's false
statements were either knowingly or recklessly made, injury to the
school system becomes irrelevant, and the First Amendment would not
prevent his discharge. For the State to be constitutionally
precluded from terminating his employment, reliance on some other
constitutional provision would be required.

															Nor can I join the Court in its findings with regard to whether
Pickering knowingly or recklessly published false statements.
Neither the State in presenting its evidence nor the state
tribunals in arriving at their findings and conclusions of law
addressed themselves to the elements of the new standard which the
Court holds the First Amendment to require in the circumstances of
this case. Indeed, the state courts expressly rejected the
applicability of both New York Times and Garrison. I find it wholly unsatisfactory for this Court
to make the initial determination of knowing or reckless falsehood
from the cold record now before us. It would be far more
appropriate to remand this case to the state courts for further
proceedings in light of the constitutional standard which the Court
deems applicable to this case, once the relevant facts have been
ascertained in appropriate proceedings.

															[ Footnote 3/1 ] See ante at 391 U. S.
569 -570, 391 U. S. 572 and nn. 3, 4. The Court does not elaborate upon its suggestion that
there may be situations in which, with reference to certain areas
of public comment, a teacher may have special obligations to his
superiors. It simply holds that, in this case, with respect to the
particular public comment made by Pickering, he is more like a
member of the general public and, apparently, too remote from the
school board to require placing him into any special category.
Further, as I read the Court's opinion, it does not foreclose the
possibility that, under the First Amendment a school system may
have an enforceable rule, applicable to teachers, that public
statements about school business must first be submitted to the
authorities to check for accuracy.

															[ Footnote 3/2 ]

															Even if consideration of harm were necessary in this case, I
could not join the Court in concluding on this record that harm to
the school administration was not proved and could not be
presumed.

Summary: The Supreme Court ruled that a teacher's interest as a citizen in making public comments is protected by the First Amendment and must be balanced against the state's interest in promoting efficient public services. The Court found that the teacher's statements, both true and false, concerned issues of public concern and did not interfere with his teaching duties or school operations. Therefore, the teacher's dismissal for publishing the letter was unconstitutional.


U.S. Supreme Court Skidmore v. Swift & Co., 323
U.S. 134 (1944) Skidmore v. Swift &
Co. No. 12 Argued October 13,
1944 Decided December 4,
1944 323
U.S. 134 CERTIORARI TO THE CIRCUIT COURT OF
APPEALS FOR THE FIFTH
CIRCUIT Syllabus 1. No principle of law precluded a determination that waiting
time was working time under the Fair Labor Standards Act. Armour & Co. v. Wantock, ante, p. 323 U. S. 126 . P. 323 U. S.
136 .

															2. Whether time spent on the employer's premises (or in hailing
distance) by fire guards subject to call was working time under the
Fair Labor Standards Act is a question of fact to be resolved by
appropriate findings of the trial court. P. 323 U. S.
136 .

															3. Although the rulings, interpretations, and opinions of the
Administrator under the Fair Labor Standards Act do not control
judicial decision, they do constitute a body of experience and
informed judgment to which courts and litigants may properly resort
for guidance. P. 323 U. S.
140 .

															136 F.2d 112 reversed.

															Certiorari, 322 U.S. 723, to review the affirmance of a
judgment, 53 F. Supp. 1020, denying recovery in a suit under the
Fair Labor Standards Act for overtime, liquidated damages, and
attorney's fees. Page 323 U. S. 135 MR. JUSTICE JACKSON delivered the opinion of the Court.

															Seven employees of the Swift and Company packing plant at Fort
Worth, Texas, brought an action under the Fair Labor Standards Act
to recover overtime, liquidated damages, and attorneys' fees
totalling approximately $77,000. The District Court rendered
judgment denying this claim wholly, and the Circuit Court of
Appeals for the Fifth Circuit affirmed. 136 F.2d 112.

															It is not denied that the daytime employment of these persons
was working time within the Act. Two were engaged in general fire
hall duties and maintenance of firefighting equipment of the Swift
plant. The others operated elevators or acted as relief men in fire
duties. They worked from 7:00 a.m. to 3:30 p.m., with a half-hour
lunch period, five days a week. They were paid weekly salaries.

															Under their oral agreement of employment, however, petitioners
undertook to stay in the fire hall on the Company premises, or
within hailing distance, three and a half to four nights a week.
This involved no task except to answer alarms, either because of
fire or because the sprinkler was set off for some other reason. No
fires occurred during the period in issue, the alarms were rare,
and the time required for their answer rarely exceeded an hour. For
each alarm answered, the employees were Page 323 U. S. 136 paid, in addition to their fixed compensation, an agreed amount,
fifty cents at first, and later sixty-four cents. The Company
provided a brick fire hall equipped with steam heat and
air-conditioned rooms. It provided sleeping quarters, a pool table,
a domino table, and a radio. The men used their time in sleep or
amusement as they saw fit, except that they were required to stay
in or close by the fire hall and be ready to respond to alarms. It
is stipulated that

															"they agreed to remain in the fire hall and stay in it or within
hailing distance, subject to call, in event of fire or other
casualty, but were not required to perform any specific tasks
during these periods of time, except in answering alarms."

															The trial court found the evidentiary facts as stipulated; it
made no findings of fact, as such, as to whether, under the
arrangement of the parties and the circumstances of this case,
which, in some respects, differ from those of the Armour case ( ante, p. 323 U. S. 126 ),
the fire hall duty or any part thereof constituted working time. It
said, however, as a "conclusion of law" that

															"the time plaintiffs spent in the fire hall subject to call to
answer fire alarms does not constitute hours worked for which
overtime compensation is due them under the Fair Labor Standards
Act, as interpreted by the Administrator and the Courts,"

															and in its opinion observed, "of course, we know pursuing such
pleasurable occupations or performing such personal chores does not
constitute work." The Circuit Court of Appeals affirmed.

															For reasons set forth in the Armour case, decided
herewith, we hold that no principle of law found either in the
statute or in Court decisions precludes waiting time from also
being working time. We have not attempted to, and we cannot, lay
down a legal formula to resolve cases so varied in their facts as
are the many situations in which employment involves waiting time.
Whether, in a concrete case, such time falls within or without the
Act is a question of fact to be resolved by appropriate findings of
the trial Page 323 U. S. 137 court. Walling v. Jacksonville Paper Co., 317 U.
S. 564 , 317 U. S. 572 .
This involves scrutiny and construction of the agreements between
the particular parties, appraisal of their practical construction
of the working agreement by conduct, consideration of the nature of
the service, and its relation to the waiting time, and all of the
surrounding circumstances. Facts may show that the employee was
engaged to wait, or they way show that he waited to be engaged. His
compensation may cover both waiting and task, or only performance
of the task itself. Living quarters may in some situations be
furnished as a facility of the task and in another as a part of its
compensation. The law does not impose an arrangement upon the
parties. It imposes upon the courts the task of finding what the
arrangement was.

															We do not minimize the difficulty of such an inquiry where the
arrangements of the parties have not contemplated the problem posed
by the statute. But it does not differ in nature or in the
standards to guide judgment from that which frequently confronts
courts where they must find retrospectively the effect of contracts
as to matters which the parties failed to anticipate or explicitly
to provide for.

															Congress did not utilize the services of an administrative
agency to find facts and to determine in the first instance whether
particular cases fall within or without the Act. Instead, it put
this responsibility on the courts. Kirschbaum v. Walling, 316 U. S. 517 , 316 U. S. 523 .
But it did create the office of Administrator, impose upon him a
variety of duties, endow him with powers to inform himself of
conditions in industries and employments subject to the Act, and
put on him the duties of bringing injunction actions to restrain
violations. Pursuit of his duties has accumulated a considerable
experience in the problems of ascertaining working time in
employments involving periods of inactivity and a knowledge of the
customs Page 323 U. S. 138 prevailing in reference to their solution. From these he is
obliged to reach conclusions as to conduct without the law, so that
he should seek injunctions to stop it, and that within the law, so
that he has no call to interfere. He has set forth his views of the
application of the Act under different circumstances in an
interpretative bulletin and in informal rulings. They provide a
practical guide to employers and employees as to how the office
representing the public interest in its enforcement will seek to
apply it. Wage and Hour Division, Interpretative Bulletin No.
13.

															The Administrator thinks the problems presented by inactive duty
require a flexible solution, rather than the all-in or all-out
rules respectively urged by the parties in this case, and his
Bulletin endeavors to suggest standards and examples to guide in
particular situations. In some occupations, it says, periods of
inactivity are not properly counted as working time even though the
employee is subject to call. Examples are an operator of a small
telephone exchange where the switchboard is in her home and she
ordinarily gets several hours of uninterrupted sleep each night; or
a pumper of a stripper well or watchman of a lumber camp during the
off season, who may be on duty twenty-four hours a day but
ordinarily "has a normal night's sleep, has ample time in which to
eat his meals, and has a certain amount of time for relaxation and
entirely private pursuits." Exclusion of all such hours the
Administrator thinks may be justified. In general, the answer
depends

															"upon the degree to which the employee is free to engage in
personal activities during periods of idleness when he is subject
to call and the number of consecutive hours that the employee is
subject to call without being required to perform active work."

															"Hours worked are not limited to the time spent in active labor,
but include time given by the employee to the employer. . . ." Page 323 U. S. 139 The facts of this case do not fall within any of the specific
examples given, but the conclusion of the Administrator, as
expressed in the brief amicus curiae, is that the general
tests which he has suggested point to the exclusion of sleeping and
eating time of these employees from the work-week and the inclusion
of all other on-call time: although the employees were required to
remain on the premises during the entire time, the evidence shows
that they were very rarely interrupted in their normal sleeping and
eating time, and these are pursuits of a purely private nature
which would presumably occupy the employees' time whether they were
on duty or not, and which apparently could be pursued adequately
and comfortably in the required circumstances; the rest of the time
is different, because there is nothing in the record to suggest
that, even though pleasurably spent, it was spent in the ways the
men would have chosen had they been free to do so.

															There is no statutory provision as to what, if any, deference
courts should pay to the Administrator's conclusions. And while we
have given them notice, we have had no occasion to try to prescribe
their influence. The rulings of this Administrator are not reached
as a result of hearing adversary proceedings in which he finds
facts from evidence and reaches conclusions of law from findings of
fact. They are not, of course, conclusive, even in the cases with
which they directly deal, much less in those to which they apply
only by analogy. They do not constitute an interpretation of the
Act or a standard for judging factual situations which binds a
district court's processes, as an authoritative pronouncement of a
higher court might do. But the Administrator's policies are made in
pursuance of official duty, based upon more specialized experience
and broader investigations and information than is likely to come
to a judge in a particular case. They do determine the policy which
will guide applications for enforcement Page 323 U. S. 140 by injunction on behalf of the Government. Good administration
of the Act and good judicial administration alike require that the
standards of public enforcement and those for determining private
rights shall be at variance only where justified by very good
reasons. The fact that the Administrator's policies and standards
are not reached by trial in adversary form does not mean that they
are not entitled to respect. This Court has long given
considerable, and in some cases decisive, weight to Treasury
Decisions and to interpretative regulations of the Treasury and of
other bodies that were not of adversary origin.

															We consider that the rulings, interpretations, and opinions of
the Administrator under this Act, while not controlling upon the
courts by reason of their authority, do constitute a body of
experience and informed judgment to which courts and litigants may
properly resort for guidance. The weight of such a judgment in a
particular case will depend upon the thoroughness evident in its
consideration, the validity of its reasoning, its consistency with
earlier and later pronouncements, and all those factors which give
it power to persuade, if lacking power to control.

															The courts in the Armour case weighed the evidence in
the particular case in the light of the Administrator's rulings and
reached a result consistent therewith. The evidence in this case,
in some respects, such as the understanding as to separate
compensation for answering alarms, is different. Each case must
stand on its own facts. But, in this case, although the District
Court referred to the Administrator's Bulletin, its evaluation and
inquiry were apparently restricted by its notion that waiting time
may not be work, an understanding of the law which we hold to be
erroneous. Accordingly, the judgment is reversed and the cause
remanded for further proceedings consistent herewith. Reversed.

Summary:
Here is a summary of the Supreme Court case Skidmore v. Swift & Co. (1944):

Issue: Whether time spent on-call by fire guards, subject to occasional alarms, constitutes "working time" under the Fair Labor Standards Act.

Holding: The Supreme Court held that there is no legal principle preventing waiting time from being considered working time. The Court determined that this was a question of fact to be decided by the trial court. While not binding, the Court also stated that the interpretations and opinions of the Administrator under the Fair Labor Standards Act should be considered as a source of guidance by courts and litigants.

Result: The judgment of the lower court was reversed, and the case was remanded for further proceedings consistent with the Supreme Court's opinion.