The Pickering Balancing Test Governs Hybrid Free Speech and Association Claim Under the First Amendment

Clark? College? adjunct? economics? instructor Barbara ?Hudson ?sued? a ?faculty? member, ?Dr. Craven,? and? administrators? who? allegedly retaliated against her for attending WTO protests with her students. ?Out of concern for the students, faculty members objected to Hudson?s initial plan for a school-sponsored trip to the protests. ?Although Hudson attempted to circumvent the clear directive that she could not sponsor a field trip on behalf of the College, it was, in effect, a de facto class field trip.?? ?After the trip, Craven recommended non-renewal of Hudson?s contract. Noting that although the instructor?s right to associate? with? her? students? is? the? predominant issue, the Ninth Circuit added that ?The very purpose of the rally was to speak out against the WTO, an exercise that implicates core speech rights.??? In a case of first impression, the Court nevertheless applied the balancing test set forth in Pickering ?v. ?Board ?of ?Education, ?391 ?U.S. ?563 (1968), noting that ?The speech and associational rights at issue here are so intertwined that we see no reason to distinguish this hybrid circumstance from a case involving only speech rights.? Although the Court had no difficulty concluding that her speech and associational activities were a matter of public concern, it held that ?her associational interests in this context are strongly outweighed by the legitimate administrative interests of Clark College.??? The Ninth Circuit held the college met its burden by demonstrating that its legitimate interests outweighed Hudson?s interest in attending the anti-WTO rally with her students.? ?The curtailment of her speech was minimal because she was free to attend the rally herself and she could discuss her views with anyone, including in the classroom with her students.? ?The government?s interests in the ?safety of students and pedagogical oversight? outweighed Hudson?s rights to attend with her students ?protests of such novelty and scale in the face of warnings about rioting.??? Moreover, the Court explained, Clark College has a strong and?? recognized?? interest?? in?? maintaining?? its political neutrality as an educational institution which was compromised by Hudson?s inclusion of the rally on her class?s final exam, which gave the students who accompanied her to the rally an advantage.? ?Hudson v. Craven, No. 03-35408 (04/06/05; Hawkins, Thomas, McKeown).