Freedom of Speech Outside of the Classroom: “Protected” versus “Unprotected” Speech: When is Teacher Speech “Job-Related” or “Citizen Speech?

At a social function I was introduced to a parent active in the Opt Out movement; she was complaining about the teachers in her school, “I know they think the state tests are garbage. Why don’t they speak out? Why won’t they stand up at a PTA or a school board meeting and urge parents to opt out? They’re protected; they have freedom of speech just like everyone else?”

The first amendment does not grant unlimited freedom of speech, the amendment prohibits Congress from “abridging the freedom of speech.”

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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.

In September of 1787, in the final days of the Constitutional Convention, a motion was made to include a bill of rights into the text of the constitution – it failed to receive support from any state. James Madison and Alexander Hamilton the co-conspirators who engineered the Constitutional Convention opposed including a bill of rights. In the Federalist Papers # 84 Hamilton explains why there is no need for a bill of rights.

The most considerable of the remaining objections is that the plan of the convention contains no bill of rights. Among other answers given to this, it has been upon different occasions remarked that the constitutions of several of the States are in a similar predicament. I add that New York is of the number. And yet the opposers of the new system, in this State, who profess an unlimited admiration for its constitution, are among the most intemperate partisans of a bill of rights. To justify their zeal in this matter, they allege two things: one is that, though the constitution of New York has no bill of rights prefixed to it, yet it contains, in the body of it, various provisions in favor of particular privileges and rights, which, in substance amount to the same thing; the other is, that the Constitution adopts, in their full extent, the common and statute law of Great Britain, by which many other rights, not expressed in it, are equally secured.

Madison and Hamilton believed that by specifically listing items in a bill of rights you were excluding others therefore limiting the rights of the people.

The Virginia Declaration of Rights, written more than a decade earlier included a long accounting of rights, the Declaration included freedom of the press,

That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments

As well as freedom of religion,

That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.

And did not address freedom of speech.

Three years after the Constitutional Convention the Congress agreed to include a Bill of Rights

The issue of the actual meaning of the first amendment freedom of speech went unaddressed by the Court until the First World War and “Sedition” legislation.

In 1917 the Court unanimously ruled that a law which prohibited the distribution of flyers criticizing the draft was not unconstitutional.

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Fifty years later the Court changed the standard from “clear and present danger” to “imminent lawless action.”

… the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The First Amendment begins with the phrase “Congress shall make no law …;” how does the First Amendment protect individual citizens? And, for our purpose;

Does the First Amendment protect teachers from disciplinary action for comments made in the classroom?  for comments made at in-school meetings? for comments made at school board meetings? at public forums? for articles or blogs criticizing the employer?

The courts divide teacher speech in two categories, “protected” and “unprotected” speech.

There was 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, slowly began chipping away at Pickering,

In Givhan v Western Lane Consolidated School District (1979), Justice 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.”

The United States Supreme Court further limited speech, and ruled that when public employees speak while performing their official duties, (i.e., “job duty speech”); this speech is not protected by the First Amendment and can be the basis for discipline or discharge.

In 2006 in 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 interview 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.

To the best of my knowledge no teacher has been disciplined for comments made re whether parents should opt out; however, I would strongly advise teachers speak with the union before putting their job in jeopardy.