The Costs of Agencies: Waters V. Churchill and the First Amendment in the Administrative State
Roosevelt, Kermit, The Yale Law Journal
In 1987, Cheryl Churchill lost her job for criticizing her employer. Churchill was a public employee holding a probationary nursing position in the obstetrics department of McDonough Hospital in Macomb, Illinois. Alleging that the termination violated her First Amendment rights, she sued the hospital and her supervisor, Cynthia Waters, in federal court. In 1994, her case reached the Supreme Court.(1) The Court held that First Amendment analysis should be applied not to Churchill's actual speech but to what the hospital administrators might reasonably have thought she said.(2) Because that speech "may have substantially dampened" a fellow employee's interest in working for the obstetrics department,(3) the Court explained, it was sufficiently disruptive to fall outside the bounds of First Amendment protection. Regardless of what Churchill had actually said, if the administrators were sincere and reasonable in their belief, they were entitled to summary judgment.(4)
Waters represents the Supreme Court's latest word on the First Amendment rights of government employees. The Court's treatment of this area of First Amendment law has received a fair amount of scholarly attention, and Waters itself has been criticized for the way in which it distributes power in the employer-employee relationship.(5) Certainly it is true that after Waters, government employers enjoy greater freedom in terminating employees based on speech. Academic critiques, however, have by and large accepted the Court's concept of efficiency and its characterization of the competing interests in Waters.(6) Such critiques are thus left to dispute the judgment of the hospital administrators, and they rely mostly on the contention that employee speech can contribute to workplace efficiency. As an empirical claim about effective management techniques, this argument can be addressed properly only to managers; to judges it is simply an invitation to usurp managerial discretion.(7)
This Note argues that the prevailing focus on Waters's effects in the workplace is misguidedly narrow and leaves the crucial issues unexamined. It contends that at stake in Waters is not merely the relationship of the individual employee to the government, nor the government's ability to manage the workplace. Implicated in the Court's analysis, and affected by its ruling, are fundamental concerns about the relationship between the citizen and the government in general, about the scope of the democratic political process, and ultimately about the possibility for public oversight and control of the growing administrative state.
Proper development of these larger issues requires considerable excavation. Part I of the Note discusses the facts of the Waters case and the resulting state of the law. It examines the Court's reasoning to uncover the conception of government that motivates the decision and concludes that the Court employs a model in which governmental managers have broad discretion to limit individual liberty in pursuit of governmental efficiency. Part II employs the agency theory developed in corporate law to suggest that the Court's attempt to promote efficiency by deferring to managerial judgment is theoretically misguided. Part III broadens the analysis by questioning the Court's portrayal of Waters as a conflict simply between individual liberty and governmental efficiency. It suggests that the Court's libertarian understanding of the First Amendment gives insufficient weight to the value of self-governance. Part IV argues that self-governance is present in the Waters analysis, but hidden within the underanalyzed notion of governmental efficiency. This Part then articulates a more complex understanding of efficiency, which reveals that governmental efficiency comprehends not only the narrow instrumental interest recognized by the Court but also a broader societal interest in self-governance, both of which are served by employee speech. Part V then proposes an alternative to the current treatment of public employee speech that recognizes the deeper values at issue and accords them their proper weight. …