Does the First Amendment Protect Teachers from Retribution for Controversial or Unpopular Speech?

Editor’s Note: The opinions expressed by the author in this post are his own and are not an endorsement of any particular view by The Wire.

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Of all the blog posting I’ve written over the years the blogs dealing with “speech” are the most frequently accessed.

The genocidal Hamas attack and the Israeli response have been reviled by both supporters of Israel and supporters of Palestinians; rallies. demonstrations and marches have erupted across the city, including by students, Chalkbeat wrote,

In advance of a planned student and staff walkout at some New York City schools Thursday to call for a ceasefire in Gaza, schools Chancellor David Banks warned teachers about violating Education Department rules on political speech.

In an email to school staff Wednesday, Banks urged educators to keep their personal political beliefs out of the classroom — and warned that even out-of-school political activity can violate city rules if it “disrupts … the school environment.”

“When speech and action — even on one’s personal time — undermines the mission or core functions of NYCPS, we will review and take appropriate action on a case-by-case basis.”

Critics of the Chancellor’s email saw it as an attempt to silence discussion.

An Education Department spokesperson said the email was “written not in response to any particular event” and was “not meant to discourage or encourage any particular staff members.” 

“We believe our staff will appreciate having clarity about how to balance their personal views and professional responsibilities,” the spokesperson added.

The NY ACLU also responded,

Donna Lieberman, the executive director of the New York Civil Liberties Union, said the chancellor’s letter is “inside the bounds of the law” but will “likely have the effect of stifling political discussion both inside the classroom and in the broader community.”

“The Department of Education should spend more time giving teachers the tools to support robust political debate, navigate students’ high emotions, and address serious issues — and less time monitoring their social media accounts,” she added.

A few years ago I took a deep dive into how the courts view teacher speech,

The Freedom of Speech Thin Line: Defending and Advocating for Your School or Indoctrinating and Using Students

Jill Bloomberg has been the principal of Park Slope Colleague, a small high school on the John Jay campus since 2004.  According to articles in Chalkbeat (“Investigation of activist principal has free-speech advocates asking what politics are allowed at school”) and the New York Times (“A Principal Is Accused of Being a Communist, Rattling a Brooklyn School“) is under investigation allegedly for “communist organizing.”

… one of her assistant principals, who had met with an investigator, revealed to her exactly what the allegation was, one that seemed a throwback to another era: Communist organizing.

The Office of Special Investigation (OSI), the investigative arm of the Department of Education has opened an investigation into the principal’s conduct and the principal has gone to court to squelch the investigation.

Chalkbeat writes,

The war, it seems, will partly depend on whether Bloomberg violated D-130 — a Chancellor’s regulation that prohibits school employees from “being involved in any activities, including fundraising, on behalf of any candidate, candidates, slate of candidates or political organization/committee during working hours.”

The city claims, among other allegations, that Bloomberg violated the regulation by advocating on behalf of the Progressive Labor Party, a political organization with communist ties, at school. Bloomberg denies that and says she isn’t a member herself. But the case raises a larger question of what the regulation is meant to cover.

The New York Times writes,

Over the years, Ms. Bloomberg has become one of the most outspoken and visible critics of New York City’s public schools, regularly castigating the Education Department’s leadership at forums and in the news media. Most of her criticism is aimed at actions that she says perpetuate a segregated and unequal educational system and that penalize black and Latino students. Through the years, she has helped organize protests and assemblies to push for integration and equal resources and treatment for her almost entirely black and Latino student body.

I believe there are a number of questions: are the actions of the principal “protected speech”? And, the larger question, have recent Supreme Court decisions broadened the definition of “speech” under the First Amendment? Finally, did the principal violate Chancellor’s Regulation D-130?

I have written at length about the issue of “protected” and “unprotected” speech,” one of my most accessed blogs: https://mets2006.wordpress.com/2015/12/21/freedom-of-speech-outside-of-the-classroom-protected-versus-unprotected-speech-when-is-teacher-speech-job-related-or-citizen-speech/

 The case law has been extensive and has narrowed the definition of free speech.

In Givhan v Western Lane Consolidated School District (1979), Justice Rehnquist, writing for the Court argues 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.

Garcetti v Ceballos (2006) has been the precedent in a number of cases denying teacher claims of protected speech.

In 2010, in Citizen’s United, the court, in a 5-4 decision invalidated a statute that limited political contributions by corporations and unions; the court ruled that statute unconstitutional and vigorously expands freedom of political speech,

Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people. See Buckley , supra , at 14–15 (“In a republic where the people are sovereign, the ability of the citizenry to make informed choices among candidates for office is essential”). The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it. The First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” Eu v. San Francisco County Democratic Central Comm. , 489 U. S. 214,223 (1989) (quoting Monitor Patriot Co. v. Roy , 401 U. S. 265, 272 (1971) ); see Buckley , supra , at 14 (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution”).

     For these reasons, political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are “subject to strict scrutiny,” which requires the Government to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” 

Did the court erode the distinction between “protected” and “unprotected” speech?

While Citizen’s United is reviled because it basically allows unlimited contributions to campaigns, does it also allow for wider freedom to comment and advocate on the political stage?

The OSI investigation, according to media accounts is based on whether or not the principal violated a Department regulation, D-130 (Read regulations here), the Department does not comment on ongoing investigations.

Chancellor Regulation D-130 is entitled, “Use of School Buildings, Elected Officials and Political Organizations and Conduct of Employees and Officers with Respect to Political Campaigns and Elections,” On the face the regulation does not appear relevant to the actions of the principal.

Employers do have wide discretion in imposing discipline; however, the limiting factor is the collective bargaining agreement, aka, the union. If the Department brings charges against the principal she is entitled to have the accusations heard by an impartial arbitrator.  Courts will usually not intercede until all the administrative remedies have been exhausted, namely, the decision of the arbitrator has been rendered.

I have always advised teachers, if they intend to speak at a public forum, to make it clear, “I am speaking as an individual;” hopefully, that statement will “protect” their speech.

If you are summoned to be questioned by a supervisory or investigative agency always request union representation, called Weingarten Rights (nothing to do with the AFT president).

An employee is entitled to union representation when all of the following conditions are met: The employee must be questioned in connection with an investigation; the employee must reasonably believe he or she may be disciplined as a result of the answers; and. The employee must request representation.

The answer, as you have read, is complicated.

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