When the Supreme Court first recognized the qualified immunity defense for public officials in a civil rights action brought under 42 U.S.C. § 1983(1) (§ 1983), it grounded its decision on a balancing of competing interests.2 The adoption of this qualified immunity standard, as opposed to the more rigid, rule-like doctrine of absolute immunity requires courts, as decisionmakers, to deliberate explicitly over the policy reasons and value choices underlying their substantive decisions.3 Advocates of such an openended, case-by-case approach argue that it "promotefs] values of fairness and substantive equality by giving decisionmakers the discretion to accommodate individualized circumstances."4 The courts' focus on individualized circumstances in a particular case, however, seldom leads to clearly established law-an element that the plaintiff must prove to rebut the qualified immunity defense. So the seemingly desirable use of a balancing test has often led to unjust results for those whose constitutional rights have been violated.
Public employee First Amendment rights cases illustrate this very problem. In Pickering v. Board of Education,5 the Supreme Court created a balancing test (Pickering balancing test) for the adjudication of free speech rights in the public employment context. The test reflects the dual-capacity issue that arises when the State and an individual enter into an employment relationship. In such cases, the government acts both as a sovereign and as an employer; the individual is concurrently a citizen and an employee.6 The law, therefore, recognizes the government's discretionary power to make employment decisions affecting the agency's business efficiency and operational concerns,7 including decisions restricting or retaliating against an individual employee's speech.8 The Supreme Court has explicitly recognized that the government exercises greater regulatory power over individual speech when it acts as employer:
The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate.9
Although public employees possess a narrower First Amendment right than they would otherwise enjoy as non-employee citizens, public employees may challenge the constitutionality of their employers' decisions through a § 1983 action for damages. In response, public employers, like other public officials, may assert a defense of qualified immunity.10
This Note will explore the ways in which federal courts have tried to reconcile the fact-specific Pickering balancing test of public employee free speech cases with the "clearly established law" requirement of the qualified immunity doctrine. Sections II and III will outline the historical development of public employee First Amendment rights and the development of the qualified immunity doctrine, respectively. Section IV will discuss the issues that arise when courts attempt to apply the qualified immunity standard after a determination of whether a constitutional right has or has not survived a fact-intensive balancing of interests. Section V will analyze the varied treatment of qualified immunity with respect to the Pickering balancing test in federal appellate courts. Finally, Section VI will propose a standard by which courts may better reach just conclusions on the issue of qualified immunity in public employee speech cases. The proposal will call for the elimination of the "clearly established right" inquiry of the qualified immunity doctrine as it applies to public employee free speech cases, because the Pickering test provides sufficient notice to public officials regarding the limits of their discretionary powers as employers. …