Freedom of Speech Outside of the Classroom: Protected and Unprotected Speech: How Do the Courts View Teacher Speech on Internet Platforms? Do Teachers Have Special Responsibilites or Special Rights Re: Freedom of Speech?

In our Brave New World of social networking, IM, Skype and the blogosphere ,the ability of teachers to “speak” to their students, parents and colleagues knows no bounds. The number and frequency of teacher blogs seems to grow daily.
 
Does the First Amendment protect teachers from principal retribution for comments made on the range of Internet platforms?  Does the First Amendment protect teachers from comments made directly to principals? to students?  from comments made at public meetings?
 
The courts divide teacher speech in two categories, “protected” and “unprotected” speech.
 
There is considerable case law re teacher freedom of speech outside the classroom. In landmark decision Pickering v Board of Education (1968) the US Supreme Court wrote,
 
Free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions … operation of schools …. absent proof of false statements knowingly or recklessly made by him, 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 …. 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.
 
The Pickering decision informed state courts,
 
In a NYS Court of Appeals decision (Puentes v Board of Education of Bethpage (1969) the Court held “indiscreet bombast in an argumentative letter … without damage to the operation of the school system and without proof of reckless or intentional error, was not sufficient to sanction disciplinary action …”
 
Courts, however,  slowing began chipping away at Pickering,
 
Givhan v Western Lane Consolidated School District (1979),
 
Rehnquist, writing for the Court avers that the interests of a teacher as a citizen in commenting on matters of public concern “must be balanced against the interests of the state, as an employer, in promoting the efficiency” of public schools. A teacher’s speech may not be protected when it specifically impedes “the proper performance of his classroom duties or generally interferes with the regular operation of schools.”
 
In the most recent decision involving the First Amendment protections for government employees Garcetti v. Ceballos, the Supreme Court clarifies and limits the issue of protected speech. The plaintiff in the case was a district attorney who claimed that he had been passed up for a promotion for criticizing the actions of his office The Court ruled, in a 5-4 decision, that because his statements were made pursuant to his position as a public employee, rather than as a private citizen, his speech had no First Amendment protection.
 
Commenting on the decision, a legal memo distinguishes between a government employee as citizen and as an employee,
 
 … a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations. On the other hand, a citizen who works for the government is nonetheless still a citizen. The First Amendment limits a public employer’s ability to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens …. So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.
 
Justice Kennedy, writing for the majority concludes his opinion,
 
    We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.
 
The impact of the Kennedy decision has had a chilling impact.
 
Debbie Almontasser, the principal of Khalil Gibran International Academy, a public school in New York City was forced to resign her position as a result of comments she made during an interview by a local newspaper in an interviewed sanctioned by the employer. The court, citing Ceballos, rejected her appeal. 
 
In a January, 2010, in a Federal Appellate decision (Weintraub v The Board of Education of the City of New York) the court examined a claim by a New York City teacher. The teacher was discharged as a probationary teacher for a range of alleged infractions. The teacher claimed that his dismissal was the result of the filing of a grievance complaining about the failure to suspend a student who threw books.
 
The panel majority held that plaintiff, “by filing a grievance with his union to complain about his supervisor’s failure to discipline a child in his classroom, was speaking pursuant to his official duties and thus not as a citizen. Accordingly, [plaintiff’s] speech was not protected by the First Amendment.”
 
The teacher was not fired for the filing of a grievance, however, his claim that the filing of a grievance is “protected” speech was rejected by the court.
 
In a Federal District of Connecticut case (Jeffrey Spanierman v Hughes, et. al.,), the court fine tunes Garcetti, supporting a teacher’s claim that comments placed on Myspace.com is protected speech, although not overturning the failure to renew the teacher’s employment contract, and criticizing the nature of the Internet posting comments.
 
The Court asks “whether the Plaintiff expressed his views as a citizen, or as a public employee pursuant to his official duties …” and uses Garcetti as guidance.
 
when public employees make statements pursuant to their official duties, the employees are not speaking as citizen for First Amendment purposes, the Constitution does not insulate their communications from employer discipline … Employees who make public statements outside of the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government … When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees …
 
The court reviewed the nature of the Myspace comments by the teacher and finds “…examples of the online exchanges the Plaintiff had with students, and the court can see how a school’s administration would disapprove of, and find disruptive, a teacher’s discussion with a student … (after a careful analysis of the Myspace student-teacher exchanges) Such conduct could very well disrupt the learning atmosphere of a school, which sufficiently outweighs the value of Plaintiff’s Myspace speech.”
 
From Pickering to Garcetti the Court has moved the line that differentiates protected from unprotected speech.
 
Some caveats:
 
* Teachers should from refrain from communicating with students on social networking sites.
* Teachers should use “common sense” in what they post about themselves on social networking sites.
* Comments made “in their role as a teacher,” is not protected speech.
* Employers have the burden to show that teacher speech impedes the ability of the “employer to operate efficiently and effectively,” a substantial burden on the employer.
As the highways of electronic communication grow, and citizens can communicate on a 24/7 basis I suspect First Amendment issues will emerge and the courts will face new challenges, and, remember: Big Brother is probably watching, and listening, to you!
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14 responses to “Freedom of Speech Outside of the Classroom: Protected and Unprotected Speech: How Do the Courts View Teacher Speech on Internet Platforms? Do Teachers Have Special Responsibilites or Special Rights Re: Freedom of Speech?

  1. I want to pass this along to my colleagues, but I’m unclear about-“as a teacher” comments are not protected speech. I just want to be clear on what that means.

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  2. Not that it directly reflects on the conclussions in this piece, I thought it interesting to note that the NY Times reported recently (link below) that the federal EEOC had found that the Board of Ed had discriminated against Debbie Almontaser.

    Shortly after the announcement from the EEOC was announced the current principal of the Khalil Gibran school announced that she was resigning, apparently to take up a position as a Literacy Coach at East-West HS.

    The City stated they’d rigorously defend against Almontaser’s civil law suit; the EEOC decision urged the parties to resolve their differences.

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  3. Debbie Almontasar lost her appeal in the Federal Court of Appeals, see here (http://graphics8.nytimes.com/packages/pdf/nyregion/almontaser_opinion.pdf), and won her case before the Equal Employment Opportunity Commission (EEOC) here (http://www.scribd.com/doc/28316030/EEOC-Determination).

    An analysis of the apparent contradiction from the National School boards Association is below:

    In 2008, the U.S. Court of Appeals for the Second Circuit affirmed a federal district court’s denial of Almontaser’s motion for a preliminary injunction ordering NYCDE not to select a permanent principal until it gave her application “full and fair” consideration. The Second Circuit (CT, NY, VT) ruled that comments Almontaser made in a newspaper interview did not constitute speech on a matter of public concern. While acknowledging that a public employee has a First Amendment right to speak as a citizen on a matter of public concern, the appeals court emphasized that the U.S. Supreme Court in Garcetti v. Ceballos, 547 U.S. 410 (2006), had clearly established that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Based on the record, the court concluded that the lower court had not abused its discretion because Ms. Almontaser’s statements “‘were manifestly made in her official capacity’ and therefore not constitutionally protected.” …. While it appears that Almontaser is attempting a second bite of the same apple, her previous lawsuit and the EEOC complaint are based on distinct legal theories. Her suit asserted that NYCDE retaliated against her for exercising her First Amendment free speech rights, while the EEOC complaint asserts discrimination based on race, religion and national origin in violation of her rights as an employee under Title VII.

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  4. “as a teacher” means that if it falls within your duties as a teacher, it’s not protected, such as the case where the teacher filed a complaint about how a principal handled a discipline issue and was fired. Her complaint was not protected because it was within the realm of “as a teacher.” So basically, if you have a complaint, take it to the press or the board as a citizen, not as a teacher

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  5. Pingback: Big Brother Strong Arms Another American - Page 6

  6. So “as a private citizen,” if a teacher posted his/her disdain for the military planes which fly over the civilian portion of town, would the Principal have any grounds to discipline the teacher? Wouldn’t the correct action be to remind the complaining parent of the teacher’s first amendment rights?

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  7. Useful information relating to this subject, thanks for sharing
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  9. Are there any cases YET where public school districts have gone after retired teachers, who speak out through a Blog or forum, in court in an attempt to punish and censor them by taking away their earned retirement benefits—if it hasn’t happened YET, I suspect it will one day soon?

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  10. Retirees are not employed by a school district, I believe all comments are “protected” aka “citizen speech,” blog away …

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  11. What about a teacher that posts something about her opinion on gender neutral bathrooms? Can she be fired for stating she disagrees with certain social issues that have nothing to do with her school?

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  12. I would strongly suggest speaking with your local teacher union representative – the laws and regulations vary widely from state to state.

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  13. Pingback: Should the NYS Commissioner Remove Carl Paladino from the Buffalo School Board? Are Abhorrent, Racist Comments Protected by the First Amendment? | Ed In The Apple

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