Section 5.8 Free Speech Rights

• Library: School Law (2003 Ed. + 2016 Supp)

3. (§5.8) Free Speech Rights

Teachers and other school employees certainly do not relinquish their First Amendment rights by choosing to teach in the public schools. But the Constitution does not afford absolute protection for these rights. In Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563 (1968), the leading case in this area, the Supreme Court stated that courts must strike a balance between the interests of the teacher, as a citizen, in commenting on 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. Id. at 568. In reversing the dismissal of a teacher who had written a letter to the editor of a local newspaper critical of several actions by the local school board, the Supreme Court held that statements by teachers on matters of public concern are accorded First Amendment protection unless they can be shown to have either impeded the teacher’s proper performance of his or her daily duties in the classroom or to have interfered with the regular operation of the schools generally. Id. at 572–73. In Givhan v. Western Line Consolidated School District, 439 U.S. 410 (1979), the Supreme Court held that a teacher does not forfeit this protection against governmental abridgment of freedom of speech if the teacher decides to express his or her views privately to the principal rather than publicly.

To succeed in a suit for wrongful discharge, the employee must show that the constitutionally protected conduct played a “substantial” role in the school board’s decision not to rehire him or her. If the employee meets that burden, the board is then entitled to show that it would have reached the same decision as to the employee’s reemployment even in the absence of the protected conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977). The teacher must be placed in no worse position by board action than if he or she had not engaged in the protected conduct.

2016 CUMULATIVE SUPPLEMENT (§5.8A) New Section

a. (§5.8A) Job-Related Speech Is Not Protected Speech (New Section)

In Garcetti v. Ceballos, 547 U.S. 410 (2006), the U.S. Supreme Court held that speech uttered within the scope of a public employee’s job duties is not protected by the First Amendment to the United States Constitution because the employee is not speaking as a citizen but, rather, as an employee. In Garcetti, a deputy...