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In 2006, are public school employees,
especially classroom teachers, reluctant to speak out in public
on matters that involve the school system where they are
employed? Are school system employees fearful that their jobs
may be placed in jeopardy by speaking out in a public forum on
controversial issues, especially issues that have a direct
connection to their employer (e.g., the school system’s
budget, local school board elections, elections of local
political leaders, local school board curricular priorities)?
The bottom line question is: Do public school employees,
especially classroom teachers, forego their First Amendment
rights and protections solely because of their employment
status?
Recently, a writer made the following
observation: “Public employers are seeing First Amendment
retaliation claims with greater frequency. Employees routinely
claim that workplace comments that happen to touch on matters of
public interest are protected and that the public employer can
take no action against them for the speech.” Gesina (2005) The
purpose of this commentary is to briefly discuss the rights of
public school system employees to comment on matters directly
related to their employment. The free speech rights of public
school classroom teachers will serve as the primary focus of the
commentary’s issue analysis and the ensuing discussion of legal
and policy implications.
The First Amendment and Free
Expression
The First Amendment to the United States
Constitution states, in relevant part, “Congress shall make no
law …abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the
government for a redress of grievances.” (Ratification of first
ten amendments completed December 15, 1791) It is important to
note that nowhere in the above statement, or in the body of the
Constitution, is the word “expression” used. Vacca and Bosher
(2003)
In his comprehensive treatise on the law,
Fried makes the following observation: “The constitutional
doctrine of free expression comes as close to the libertarian
ideal as it is sensible to wish. The mind is free. It does not
belong to the state, the government, the community—whatever your
preferred location—but is solely the property of the individual
to use as she wishes.” Fried (2004)
Expression: What is it? The term
expression is broad in scope. To express, states Black’s
Law Dictionary, is to make something known (in words)
distinctly and explicitly so as not to be left to inference or
implication. Black’s (1999). The Random House
Dictionary tells us that expression involves the act of
communicating ideas, opinions, and feelings. Random
House (1966)
Individuals express themselves in a variety
of ways. They express themselves in what they write, in pictures
they create, through physical gestures, in the clothing and
jewelry they wear, and verbally (i.e., the “spoken
word”). “Given a particular situation, one or a combination of
theses forms might prove more effective than the others in
making an individual’s feelings, beliefs, or wishes known to
others.” Vacca and Bosher (2003)
Employee Expression in the Workplace:
The Disruption Standard. More than three decades ago, the
United States Supreme Court made it clear that students and
teachers do not shed their First Amendment rights to free speech
and expression at the schoolhouse gate. Tinker v Des
Moines (1969). Courts have consistently applied a
“disruption standard” to establish that public employee free
expression is subject to reasonable limitations, restraints, and
boundaries set by employers. City of San Diego v Roe
(2004)
Judicial Standard of Analysis. The
traditional judicial standard used in deciding acceptable bounds
and the extent of public school system employee free speech in
the workplace is applied on a case-by-case basis. The issue
analysis focuses on the following elements: (1) the content of
the employee’s speech, (2) the forum in which the speech occurs,
and (3) the relationship to and resulting effect on the
employee’s work environment.
Expression in the Workplace
Teacher speech and other expressive
activities, no matter how well intended, that disrupt the
workplace are not acceptable. As one legal scholar succinctly
summarized post-Tinker, “The cases on freedom of
expression in public schools voice a consistent underlying
theme, namely, that no teacher or student may press
constitutional rights to the point of disrupting the operation
of schools. Short of actual or serious threat of a
material disruption of a substantial educational interest,
teacher rights are protected; but beyond that point, they do not
exist.” Valente (1987)
Personal Interests v Public Interests.
The United States Supreme Court has drawn an important
distinction between speech that represents an employee’s
personal interests (not protected) and speech that involves
matters of public concern (protected). Connick v Myers
(1983) Legal experts agree that the “courts have
consistently ruled that teachers have a constitutional right to
speak out on matters of public concern.” Wood, et al. (2000) In
Connick, while the high court made it clear that “a
federal court is not the appropriate forum in which to review
the wisdom of a personnel decision…” Connick (1983), it
was convinced that Myers’ personally motivated actions “ would
disrupt the office, undermine authority, and destroy the close
working relationships within the office….” Alexander and
Alexander (1995)
Using a Connick-type analysis it can
be argued that a teacher who publicly expresses his/her
opposition to the local school board’s budget as it effects
his/her particular salary (a matter of personal interest) is
different from a teacher publicly speaking out in opposition to
the board’s budget as it impacts on the overall pay scale of all
teachers (a matter of public concern). The potential impact on
faculty morale and the efficient operation of the school system
likely would be a major concern of the employer.
Pickering (1968) and Mt. Healthy (1977).
In 1968, the United States Supreme Court decided a case
involving a public school teacher who, in a letter to a
newspaper, criticized his employer (local board of education).
In his letter he cited failed bond issues, board elections, and
board budgetary priorities. He also criticized the
superintendent of schools for allegedly influencing teachers not
to vote in the bond election. The school board claimed that
because his letter contained false statements, impugned the
motives of the school administration, and damaged the school
system, his dismissal from employment was justified. In ruling
for the teacher, the court concluded that: (1) subjects
contained in the teacher’s letter were matters of public
concern, (2) errors contained in the letter were minor; and (3)
no malice could be attached to the teacher’s motives.
Pickering v Board of Education (1968)
The United States Supreme Court established
a judicial standard that has served to balance the personnel
prerogatives of school officials with the rights and protections
of school system employees to publicly speak out, when it
decided a case out of the Southern District of Ohio. In Mt.
Healthy City School District Board v Doyle (1977), a
non-tenured teacher (he worked in the school system under one
year contracts for three years) sued school officials claiming
that his First and Fourteenth Amendment rights were violated
when the board of education decided to non-renew his employment
contract. Even though several incidents led up to the board’s
non-renewal decision, the teacher’s telephone call to a local
radio station in which he openly and critically discussed the
contents of a memorandum sent to all teachers by the school
principal prompted the board to act. It was this exercise of
speech (on matters of public concern) that the teacher cited as
the unconstitutional reason for the board’s non-renewal
decision.
In vacating the decision and remanding the
matter back to the Sixth Circuit, the Supreme Court created a
three-pronged standard of causation to apply in this type of
case. The questions are: (1) Is there present in this situation
some element or exercise of constitutionally or legally
protected conduct? (2) Did the element or exercise play a
“substantial or motivating part” in the board’s decision? (3)
Absent that element or exercise, would the same decision have
been made regarding this employee? This standard, said Justice
Rehnquist, strikes a “balance between the interests of the
teacher, as a citizen…, and the interests of the State, as an
employer….” Mt Healthy v Doyle (1977)
Related Case Law
In this nation’s body of constitutional
law, liberty is a bedrock concept upon which other, basic
individual freedoms rest. The Fourteenth Amendment to the United
States Constitution states, “nor shall any State deprive any
person of life, liberty, or property, without due process….”
(Declared ratified July 28, 1868)
Cambron-McCabe and her colleagues remind
us “…liberty interests encompass fundamental constitutional
guarantees such as freedom of expression and privacy rights. If
governmental action in the nonrenewal of employment threatens
the exercise of these fundamental liberties, procedural due
process must be afforded.” However, state these experts, “…[m]ost
nonrenewals do not overtly implicate fundamental rights, and
thus, the burden is on the aggrieved employee to prove that the
proffered reason is pretextual to mask the impermissible
grounds.” Cambron-McCabe, et al. (2004) On the other
hand, the more obvious the presence of an unlawful intent on the
part of school officials, or the more arbitrary the board’s
decision seems, the more likely that school officials may be
required to produce substantive evidence necessary to support
their employment decision. Vacca and Bosher (2003)
Case Law Examples. A review of past
court decisions reveals cases in which plaintiff employees
claimed, among other things, that they were retaliated against
by their employer for complaining about matters related to their
workplace. In other words these employees claimed that they
still would be employed but for their exercise of
protected (liberty) conduct. Some examples of court
decisions follow.
In Renfro v Kirkpatrick (1982), a
non-tenured teacher claimed in federal court that she was not
offered a full-time teaching position because she had filed a
grievance against school officials. In her grievance she
complained about her employment situation in the school system.
In this case the plaintiff employee could not show that her
First Amendment exercise was a “motivating factor in the Board’s
decision not to rehire her.”
A 1996 federal district court decision
upheld the right of public school teachers to participate in a
school board election. In the court’s view employees openly
making their views known on candidates for a school board
election involves speaking out on matters of “public concern.”
Castle v Colonial School District (1996)
The United States Court of Appeals for the
Eighth Circuit has held that an employee cannot be fired solely
because she has spoken out on a matter of public concern. In
this case school officials were able to demonstrate that the
employee’s (school principal’s) other work-related behaviors
warranted their actions. Howard v Columbia Public School
District (2004)
In 2005, the United States Court of Appeals
for the Tenth Circuit decided a case in which a computer
specialist unsuccessfully claimed, in addition to an allegation
of age discrimination, that she was not promoted to a new
administrative position because of statements that she had made
criticizing decision-making. She also had circulated a
memorandum to office staff urging them to report their concerns
to the school system’s finance officer. In this case the
appellate court held, among other things, that the subject of
the employee’s vocal and written communications was a personal
matter not a matter of public concern, and that school officials
had hired a more qualified candidate to fill the new position.
Mella v Mapleton Public Schools (10th Cir.
2005)
Last term, the United States Supreme Court
decided Jackson v Birmingham Board of Education
(2005). In this case a teacher who also coached the girl’s
basketball team complained to school officials that funding,
equipment, and access to school facilities for female teams were
not equal to male athletic teams. Subsequently he began to
receive negative work evaluations. Relying on Title IX
(Education Amendments of 1972), he sued in a federal district
court claiming that ultimately he lost his job in retaliation
for his complaints about male and female athletics. He was
unsuccessful at both the trial and appellate courts. However,
the United States Supreme Court held, by a vote of 5 to 4, the
coach had a private right of action under Title IX, and
that retaliation against an employee who complains about acts of
discrimination on the basis of sex is covered under Title IX.
Policy Implications
As the case law cited above shows, teachers
and other public school employees do not surrender their First
Amendment speech and expression rights and protections when they
sign their employment contract. However, it is equally clear, as
a matter of law, that employee First Amendment rights in the
workplace are not so broad as they are out in the community, and
that local public school boards can and do set limits on
employee speech and expression. The key to avoiding costly
litigation lies in crafting a balance between employee rights
and employer prerogatives. This critical balance can be achieved
by drafting clearly stated and fairly implemented personnel
policies.
What follow are some suggestions to
consider as existing policies are revisited and new ones are
drafted. Local school officials must clearly state that:
- The
board of education (the Board) retains exclusive and final
authority over all personnel matters.
- The
Board exercises wide discretion in deciding whether or not
to continue the employment of personnel in the school
system.
- The
Board makes all employment contract and retention decisions
based on: (1) the facts in each case, and (2) substantive
documentation.
- The
Board respects the constitutional and legal rights of all
employees, including but not limited to their rights as
citizens to speak out on matters of public concern.
- The
Board will take immediate and appropriate disciplinary
action in situations where employee acts of speech and
expression: (1) present imminent danger and/or threaten harm
to students or other employees, or (2) disrupt the learning
environment, or (3) impede access of students to educational
opportunities, or (4) have a harmful effect on employee
morale, or (5) damage the school system’s reputation and
credibility in the community (especially among parents).
Resources Cited
Alexander, Kern and Alexander, M. David,
THE LAW OF SCHOOLS, STUDENTS, AND TEACHERS, Second Edition (West
Group, 1995)
BLACK’S LAW DICTIONARY, Seventh Edition
(West Group, 1999)
Cambron-McCabe, Nelda H., McCarthy, Martha
M., and Thomas, Stephen B., PUBLIC SCHOOL LAW, Fifth Edition
(Ally and Bacon, 2004)
Castle v Colonial School District, 939
F.Supp. 458 (Pa. 1996)
City of San Diego v Roe, 125 S.Ct. 521
(2004)
Connick v Meyers, 461 U.S. 138 (1983)
Feied, Charles, SAYING WHAT LAW IS: THE
CONSTITUTION IN THE COURTS (Harvard Press, 2004)
Gesina, M., 14 Wisconsin Employment Law
Letter 1 (November 2005)
Howard v Columbia Public School District,
363 F.3d 797 (8th Cir. 2004), cert. denied,
2004 U.S. 7128 (2004)
Jackson v Birmingham Board of Education,
125 S.Ct. 1497 (2005)
Mella v Mapleton Public Schools, 2005
U.S.App.LEXIS 22605 (10th Cir. 2005)
Mt. Healthy City School District v Doyle,
429 U.S. 274 (1977)
Pickering v Board of Education, 391 U.S.
563 (1968)
Renfroe v Kirkpatrick, 722 F.2d 714 (11th
Cir. 1984)
Vacca, Richard S. and Bosher, William, c.
Jr., LAW AND EDUCATION: CONTEMPORARY ISSUES AND COURT DECISIONS,
Sixth Edition (LexisNexis, 2003)
Valente, William D., LAW IN THE SCHOOLS,
Second Edition (Merrill, 1987)
Wood, R.Craig, et al., Teacher Dismissal.
In Camp, William E., et al., THE PRINCIPAL’S LEGAL
HANDBOOK, Second Edition (ELA, 2000)
THE RANDOM HOUSE DICTIONARY (Random House,
1967)
Tinker v Des Moines, 393 U.S. 503 (1969)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
