Free Speech – Yes

Free Speech and Teachers

Teachers expressing their opinions concerning public issues have been tested by the supreme law of the land through many court cases. There definitely is a different standard applied to public employees in regulating free speech, especially if it is found to be a hindrance to the effectiveness and efficiency in the operation of government responsibilities. In 1968, Pickering v. Board of Education made it abundantly clear where the law stands in relation to Freedom of Speech regarding teachers and public employees in the realm of criticism and speaking out on public issues and policies. Teachers and public employees were reluctant to speak out on political issues previous to the Pickering decision for fear of retribution, yet later decisions would curb the free speech claims.

In this case, Pickering a teacher was fired for writing a letter to the editor of a local newspaper in which he criticized school officials and the Board’s allocation for the way they utilized funds pertaining to education and the athletic program. Pickering claimed that his letter was protected by the First and Fourteenth Amendments and his rights had been abridged. The Illinois Supreme Court upheld his dismissal and denied his claim finding for the appellee, the Board of Education. The Board felt that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district”. The Illinois Supreme Court, in 1967 voted against Pickering 3-2. The majority opinion rejected his First Amendment claim with these words, “By choosing to teach in the public schools, plaintiff undertook the obligation to refrain from conduct which in the absence of such position he would have an undoubted right to engage in… A teacher, who displays disrespect toward the Board of Education, incites misunderstanding and distrust of its policies, and makes unsupported accusations against the officials is not promoting the best interests of his school, and the Board of Education does not abuse its obligation in dismissing him.” In such a narrow decision, Pickering felt strongly that he had a shot to appeal his case to the highest court in the country, the United States Supreme Court.

The Supreme Court heard the case in 1968 and upheld Marvin Pickerings First Amendment claim with Justice Thurgood Marshall writing the majority opinion, “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” The court overwhelming voted in favor of Pickering and concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.” Marvin Pickering was delighted with the high courts decision and was reinstated at his position as a teacher at Lockport High School where he retired in 1997. His only regret was that some of the statements he had made in the “questionable” letter were not fully cleared up in regard to being truthful statements.

The Supreme Court held:

1. “The theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents (1967). The teacher’s interest as a citizen in making public comment must be balanced against the State’s interest in promoting the efficiency of its employees’ public services. This particular action was taken by the appellants.

2. Those statements of appellant’s which were substantially correct regarded matters of public concern and presented no questions of faculty discipline or harmony; hence those statements afforded no proper basis for the Board’s action in dismissing appellant. Pp. 569-570.

3. Appellant’s statements which were false likewise concerned issues then currently the subject of public attention and were neither shown nor could be presumed to have interfered with appellant’s performance of his teaching duties or the schools’ general operation. They were thus entitled to the same protection as if they had been made by a member of the general public, and, absent proof that those false statements were knowingly or recklessly made, did not justify the Board in dismissing appellant from public employment. New York Times Co. v. Sullivan, (1964). Pp. 570-575.

In another case, Connick v. Meyers (1983) the Supreme Court further clarified whether the First Amendment prevents the discharge of a public employee (Assistant District Attorney, Myers) for circulating a questionnaire concerning internal office affairs. The First Amendment claim was denied by a 5-4 vote. Both Connick and Pickering provide a two-pronged approach to the free Speech test for later cases. First and foremost: “When employee expression cannot be fairly considered as relating to any matter of political and social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. Second, the Pickering balancing test must be applied if it is found to be a matter of public concern. The interest of the public employee as a citizen in commenting on matters of public concern must be weighed against the interest of the state as an employer to promote effective and efficient public service. (Alexander, K & Alexander, M.L., 2009).” Here the Supreme Court makes a distinction and sees that Myers was acting out in more of a personal nature.

The 1994 case of Waters v. Churchill will question the content of the material and context of the speech used. “A nurse in the obstetrics unit while at a public hospital was fired after she spoke with a nurse who was being recruited to join the unit. According to some witnesses, the nurse spoke inappropriately and negatively about the unit and her supervisor. (First Amendment Library, 2009).”  The Supreme Court believed that she should be dismissed for the following reasons. “The key to First Amendment analysis of government employment decisions then is this: The government’s interest in achieving its goal as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as an employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate. (Alexander, K & Alexander, M.L., 2009).”  She was fired even though one version of what she had sad was of public concern.

In 2006, the Supreme Court hears the Garcetti v. Ceballos case and narrows the latitude in which First Amendment free speech is given. The case was originally argued in 2005 with a split decision 4-4 because Justice O’Connor’s departure from the court and reargued in 2006 with 5-4 decision denying a First Amendment claim. This case involved a deputy district attorney who wrote and circulated a memorandum suggesting that deputy sheriff lied in a search warrant affidavit and in his testimony in court. The Supreme Court took a significant step, “holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (First Amendment Library, 2009).”  Thus the ‘Garcetti Rule’ is in place and will be scrutinized in further challenges.

It is apparent that Pickering, Connick, Waters and Garcetti all have given us a narrower definition of where First Amendment rights with free speech begin and end in regard to employer and employee relationships including public schools, but there are many uncertainties that arise when applying the law in the public arena. Each case will be taken in the context of how the court may interpret the use of the free speech, the question of speaking as employees or private citizens, the public concern, and whether the speech was an interference with efficient school operations. The way in which teachers teach, speak, write, and wear will ultimately be held to higher standard of what society dictates as politically correct and therefore must be cautious when treading on the First Amendment murky waters.