When it comes to the free-speech rights of teachers, the joke’s still on us

The good news is that Republican lawmakers in Arizona are now retreating from their recent proposal to require teachers to limit their speech to words that comply with FCC regulations on what can be said on TV or radio — a half-baked idea rightly characterized by one critic as the “most hilariously unconstitutional piece of legislation that I’ve seen in quite some time.”

The bad news is that, Arizona’s foolishness aside, when it comes to the free-speech rights of teachers, or any other public employee, the joke is on us.

The dark days began back in 2006, when a closely divided U.S. Supreme Court handed down a 5-4 ruling in the case Garcetti v. Ceballos. Up to that point, courts had always looked for two things when evaluating a public employee’s free-speech claims: first, whether the person was speaking out on a matter of public concern, and not just some personal grievance; and second, what the proper balance was between the individual’s right to free expression and the employer’s interest in ensuring an efficient, disruption-free workplace.
The legal precedent for this test stemmed from a 1968 Supreme Court case in which a public school teacher had been fired for writing a letter to his local paper in which he criticized budgetary decisions by the local school board. A lower court upheld the school’s decision to fire the teacher, but the highest court in the land reversed. Writing for the Court, Justice Thurgood Marshall was clear: “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.”
Then came Garcetti in 2006, a case that began when an assistant district attorney from Los Angeles, Richard Ceballos, wrote a memorandum criticizing the failure of his office to dismiss a case that was marred by false testimony. Ceballos no doubt felt comfortable that his actions would be protected under the existing standard for public employee speech, and, sure enough, the Ninth Circuit Court of Appeals upheld his right to blow the whistle on his superiors. But five Justices of the U.S. Supreme Court disagreed, resulting in not just a dramatic turn of events for Richard Ceballos, but a new categorical exclusion for official, job-related employee speech.
As First Amendment Center scholar David Hudson explains, “The Garcetti decision caused a sea change in public-employee First Amendment jurisprudence, as many employees who speak out on important issues or blow the whistle on corruption no longer have a constitutional claim.”
Sure enough, since 2006 it has become increasingly difficult for public employees to speak out on matters of public concern that relate to their official duties. As Hudson explains, “After Garcetti, the importance of the information is not relevant. Many employees have spoken out on matters of public concern – even rank corruption in the workplace – but if the speech can be classified as official, job-duty speech they have no First Amendment protection.” Hudson says this new climate has led to a new term lawyers use to describe their clients who still seek First Amendment protection. Instead of getting justice, they get “Garcettized.”
So let’s enjoy a short laugh at the foolishness and the poorly-constructed effort of Arizona’s lawmakers to muzzle their state’s public school teachers. And then let’s remember that a more carefully constructed bill may not be as outlandish, and unlikely, as we think.
(This article also appeared in the Huffington Post.)

Free Speech for Teachers? Think Again . . .

In case you missed it, there was a major case last week involving the First Amendment rights of teachers to make curricular content decisions. And the Sixth Circuit Court of Appeals’ ruling puts another nail in the coffin of the free-speech rights of public employees.

In the most recent case, an Ohio teacher’s contract was not renewed after controversy erupted over a few book assignments she made with her High School English class. As recently as a decade ago, the teacher may have had a legitimate chance in court (although not neccesarily). That’s because, prior to 2006, the U.S. Supreme Court evaluated public employee free-speech claims by using a test with two basic prongs. First, the court would determine whether the speech in question touches on a matter of public concern. If it did not, the teacher would receive no First Amendment protection whatsoever. If the speech did touch on a matter of public concern, the court would proceed to the balancing prong of the test, in which it would balance the teacher’s interest in commenting upon a matter of public concern against the school officials’ interest in promoting an efficient workplace of public service.

Prior to 2006, courts sometimes sided with school officials even though the public school teachers’ speech touched upon a matter of public concern. In one 2001 case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students. Subsequent appeals in the case acknowledged that the teachers’ complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers’ speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal’s] interest in efficiently administering the middle school.”

Conversely, in 1993 the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education. In this decision, a teacher’s aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”

This is all a precursor to 2006, however, when the U.S. Supreme Court effectively eliminated the free-speech rights of public employees in its 5-4 decision in Garcetti v. Ceballos. As my friend and former First Amendment Center colleague David Hudson explains, since Garcetti “public employers are able to defend themselves against allegations of retaliation by claiming that employees’ criticisms of government operations were made as part of their official duties.”

Indeed, a pattern has emerged in this post-Garcetti world, in which it has become almost impossible to mount a successful First Amendment lawsuit based on speech that relates to the workplace. In other words, a teacher who wishes to claim First Amendment protection for decisions about curricular content must do so knowing that the same protections s/he would be afforded as a private citizen will not apply to anything so directly related to his or her official duties.

Ironically, the 1969 case that is hailed as the high-water mark for student free-speech, Tinker v. Des Moines, features these lines: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”

No longer.

(Postscript: If you’re a junkie for First Amendment law, check out my three books on the subject, including answers to all of the most frequently asked questions as they pertain to First Amendment issues in schools.)