Freedom of Expression

classrooms, a federal court ruled that this did not violate teachers’ rights because a classroom is a public-use area subject to constant scrutiny. However, a state court subsequently found the district in violation of that state’s eavesdropping laws.

9-2g freedom of expression

Courts have tended to uphold teachers’ rights to express themselves in public or in school (see Overview 9.1). However, in determining whether the expression is protected under the First Amendment, the court considers the effects on school operation, teacher performance, teacher–superior relationships, and coworkers, as well as the appropriateness of the time, place, and manner of the teacher’s remarks.

An example is the case of Marvin Pickering, a tenured high school teacher who published a letter to the editor of the local newspaper criticizing the board and superintendent about bond proposals and expenditures. The letter resulted in his termination. In Pickering v. Board of Education, the US Supreme Court held that publishing the letter did not impede the “proper performance of his daily duties in the classroom or...[interfere] with the regular operation of schools generally.” For this reason, Pickering’s dismissal was found to be improper. Similarly, the court system awarded $1 million to a Portland, Oregon, teacher whose district fired her for speaking out against what she viewed as insufficient opportunities provided for her special-education students. These precedents have made school officials uncertain about how to respond when teachers use social media such as Twitter to make critical or crude comments about their schools or students.9

On the other hand, two teachers in Alaska were dismissed for writing a letter that was highly critical of their superintendent and contained many false allegations. Reaction to the letter was immediate and prolonged. The Alaska Supreme Court held that the teachers’ effectiveness had been impaired by their remarks and that their ability to work closely with colleagues had been diminished.10

A comparison of these cases shows that the decision rested not just on the behavior itself but also on its results. The courts have developed a three-step analysis for assessing teachers’ rights to freedom of expression: (1) Did the teacher’s expression of opinion involve a public matter of political, social, or other concern to the community? (2) If yes, courts still must weigh First Amendment rights against the employer’s responsibility to promote a productive and harmonious climate for the delivery of education. The latter consideration led the courts to reject teachers’ rights to wear political buttons if that might affect their communicating the curriculum. Finally, (3) the teacher is entitled to judicial relief only if his or her expression of opinion can be shown to be a motivating factor in dismissal or other punitive action. The Supreme Court largely reaffirmed this line of reasoning in the Garcetti v. Ceballos decision in 2006.11

9Pickering v. Board of Education, 391 US 563 (1968). See also Richard S. Vacca, “Teacher First Amendment Speech 2006,” CEPI Education Law Newsletter (January 2006), available at www .cepi.vcu.edu/publications/newsletters; Frank D. LoMonte, “Tweet Police,” January 3, 2014, posting by Slate, available at www.slate.com; and Doug Oakley, “Teachers and Social Media: Trekking on Treacherous Terrain,” eSchool News (September 22, 2014), available at www.eschoolnews.com. 10Watts v. Seward School Board, 454 P. 2d 732 (Alaska 1969), cert. denied, 397 US 921 (1970). See also Edwin C. Darden, “When Speech Isn’t Free,” American School Board Journal (December 2007), pp. 42–43; and Anshu Agarwal and Bart Miller, “When Is Public Employee Speech Protected by the First Amendment,” July 29, 2014, posting by Colorado LegiSource, available at http:// legisource.net. 11Benjamin Dowling-Sendor, “Is Speaking Out Cause for Dismissal?” American School Board Journal (March 1990), pp. 8, 46; Richard. S. Vacca, “Garcetta v. Ceballos,” CEPI Education Law Newsletter (October 2007), available at www.cepi.vcu.edu/publications/newsletters; and Paul M. Secunda, “US Supreme Court Review: Lane V. Franks,” July 10, 2014, posting by the Marquette University Law School, available at www.law.marquette.edu.