Should the NYS Commissioner Remove Carl Paladino from the Buffalo School Board? Are Abhorrent, Racist Comments Protected by the First Amendment?

Carl Paladino, answering a questionnaire from an online Buffalo publication made outrageous comments  about President and Michelle Obama – read the entirety of the comments here: http://www.timesunion.com/news/article/Former-gubernatorial-candidate-wants-Michelle-10815635.php

David Bloomfield, a professor of Education at Brooklyn College, and a highly respected attorney, in an op ed in the Albany Times Union quotes some of the comments, and, while finding the comments abhorrent, finds Paladino’s comments protected by the First Amendment. and suggests the  “…commissioner should preserve her right to take such action [remove Paladino from the Buffalo School Board] in these circumstances, but withhold the ultimate sanction.”

Bloomfield avers the commissioner must answer two questions,

 Do Paladino’s comments meet the test of a removable offense and, if so, should she take that action against a democratically elected official? Case law recognizes that removal is ‘a drastic remedy that should be taken only in extreme circumstances”.”

I believe the fist question to be answered by the commissioner is whether Paladino’s comments are “protected speech.”

If Paladino was speaking in his role as a member of the Buffalo School Board I do not believe his comments are protected and the commissioner is within the spirit and intent of the commissioner’s regulation governing the conduct of School Board members.

The blog I wrote six years ago that I believe is still relevant.

 

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 Responsibilities or Special Rights Re: Freedom of Speech?

Posted on March 18, 2010 | 13 Comments | Edit

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 usesGarcetti 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!