School employees’ right to free speech appears limited when job-related
On Board Online • June 8, 2009
By the New York State Association of School Attorneys
Does a school employee’s right to free speech stop at the schoolhouse door? While the outcomes of employee disciplinary cases and other cases involving adverse job actions always depend on the facts, court rulings suggest that there has been a deterioration of public employees’ rights to free speech in the workplace.
Since the U.S. Supreme Court’s landmark 2006 ruling in Garcetti v. Ceballos, courts have been taking a different approach when public employees claim to be protected by the First Amendment in connection with an adverse job action. All such lawsuits now involve an examination of whether the employee was speaking pursuant to his or her job duties. According to Garcetti, if speech was made as a result of an employee’s job duties, no First Amendment protection applies (see sidebar below).
For school districts, the change raises a question that is not always easily answered: What do the “job duties” of a specific school employee entail? Some New York courts have closely examined the employee’s “actual duties” as opposed to the employee’s job description in an effort to afford the most First Amendment protection. Nevertheless, the Garcetti decision appears to have made it harder for public employees to successfully assert First Amendment protection.
A 2008 case, Weintraub v. Bd. of Educ. of City of New York, involved a probationary teacher in Brooklyn who sought to have a student suspended after the student threw a book at him and later filed a grievance over the incident. When he was denied tenure and terminated, he claimed he was retaliated against for his grievance, which he said was protected by the First Amendment.
The U.S. Court of Appeals for the Second Circuit, which has jurisdiction over all of New York State, ruled, “The general principle … is that, when a public employee airs a complaint or grievance, or expresses concern about misconduct, to his or her immediate supervisor or pursuant to a clear duty to report imposed by law or employer policy, he or she is speaking as an employee and not as a citizen.” In light of Garcetti, “the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer,” the court said.
The court continued:
In such circumstances, the employer is free to “discipline” the employee without violating the employee’s First Amendment rights. If, however, the employee goes outside of the established institutional channels in order to express a complaint or concern, the employee is speaking as a citizen, and the speech is protected by the First Amendment.
Before Garcetti, courts found employees protected by the First Amendment in certain cases if the speech involved addressed a matter of public concern. Post-Garcetti, employees may be subject to discipline and dismissal for speech regardless of whether the employee was addressing a matter of public concern, as long as the statement was made while the employee was discharging his or her official responsibilities. Only those statements made outside the duties of employment now require further analysis.
For instance, the Second Circuit ruled that statements by a special education counselor to administrators about the lack of physical education and art classes at a satellite BOCES facility were made within the scope of employment and were not protected by the First Amendment. On the other hand, conversations with other teachers about the same issues were not part of any official duty.
Therefore, a teacher might be able to prevail in a free-speech defense against any alleged retaliation for critical comments about the school made to colleagues but not if the adverse job action stemmed from similar comments made in the line of duty.
Less clear is the degree to which a teacher’s free speech rights in classroom discussions have been limited by Garcetti. Although the dissenting opinion in Garcetti raised the concern that the decision could “imperil” teachers’ “academic freedom,” few cases have addressed this issue.
One involved a Middletown, N.Y., art teacher who encouraged art students to participate in an outside class involving a nude drawing. A federal district court held that such speech was not protected by the First Amendment. However, another federal district court in New York permitted a Massapequa, N.Y., teacher to pursue her free speech claim that she was forced to resign in retaliation for hanging a poster of President George W. Bush in her classroom when he was running against John Kerry in the fall of 2004.
If Garcetti is interpreted broadly, then an argument can be made – and in fact has been made – that all speech concerning scholarship, made within the scope of a teacher’s official duty, is unprotected by the First Amendment. To date, New York decisions have not offered clear guidance on the scope of school employees’ official duties, however. As a result, school boards and administrators are left without a clear answer to the question of whether teachers are protected by “academic freedom” for statements made while teaching. Administrators and school boards should consult their school attorney prior to taking disciplinary action against an employee for his or her speech.
Members of the New York State Association of School Attorneys represent school boards and school districts. This article was submitted by Christopher F. Mestecky of Guercio & Guercio, LLP.