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SEE YOU IN COURT! - November 2009

November 2, 2009

Authors: Thomas B. Mooney

Mal Content, longtime AP American History teacher at Nutmeg Memorial High School, has always been outspoken, and as he approaches retirement, his comments have become more outrageous. However, he outdid himself in class last month by railing against the “illegal occupation” of Afghanistan. Some students complained to their parents, and the parent network heated up. By the following day, Mr. Principal had forty-seven emails from parents complaining about Mal’s intemperate remarks. Mr. Principal stopped by Mal’s class and told him to be more careful. However, Mal just asked Mr. Principal rhetorically if he had ever heard of academic freedom. “Just watch it,” Mr. Principal responded curtly.

Mal promptly stepped into another controversy. Talking with his class about religion in the United States today, he did a riff on creationism, concluding by calling it “superstitious nonsense.” Most of his students laughed appreciatively, but Polly Pious was deeply offended. She complained to her parents, who were fit to be tied, and they demanded a meeting with Mr. Principal and Mal.

Mr. Principal stopped by Mal’s classroom after school that day and told Mal about the complaint from the Pious family. Mal promptly admitted making the statement, adding “Creationism is nonsense, you know. I thought truth was a defense.” Mr. Principal was in no mood for a debate, and he told Mal that he would have to make nice with the parents. However, Mal told Mr. Principal that he would not be attending any meeting without Bruno, his union representative from NUTS.

“Forget it, Mal. We need to make these parents happy, and Bruno would annoy his own mother. You are directed to come to this meeting alone.” With that, Mr. Principal scheduled the meeting. Mal did attend, but he was sullen and antagonistic.

Understandably, the parents were not placated by this unpleasant meeting, and they came last night to present their concerns to the Nutmeg Board of Education. During Public Comment, the Pious parents stood up and started to complain about Mal’s anti-religious statements, as well as Mr. Principal’s failure to hold him accountable. Before the parents could get too far, however, Mr. Chairperson interrupted. “Excuse me, but complaints about any individual teachers relate to personnel matters, which are not allowed.”

“Hold on,” the parent shot back. “This teacher scarred our poor daughter for life with his disrespectful statements about our religious beliefs, and we have a right to be heard.” But Mr. Chairperson banged the gavel and directed them to sit down and be quiet. Nancy Newshound, ace reporter from the Nutmeg Bugle, intercepted them as they stormed out of the meeting and got the full story, at least from their perspective.

The next day, there was a feature story in the Bugle about religious intolerance in Nutmeg. In addition to quoting the parents, the article included statements from Mal, who claimed academic freedom. Even veteran Board member Bob Bombast got in the act, and Nancy quoted him on the controversy: “Mal has been a problem for years, and this time he went over the line. He should be fired for his insensitivity.”

Can you sort out the First Amendment issues here?

                                  * * *

First, Mr. Chairman violated the Free Speech rights of the Pious parents. By permitting Public Comment, the Board has created a public forum for speech. Presumably, the Board permits parents to say nice things about teachers. If it does, it cannot prohibit critical remarks about teachers; such action would be viewpoint discrimination, i.e. censorship, in violation of the First Amendment.

Conversely, in making controversial statements in class, Mal was not exercising rights protected by the First Amendment. Generally, public employees have free speech rights if (1) they are speaking on a matter of public concern, and (2) their speech is not disruptive or violative of the rights of others. However, in 2007, the United States Supreme Court decided Garcetti v. Ceballos, which dealt with a public employee who claimed that his First Amendment rights were violated when he was disciplined for a report he wrote to his supervisor. The Supreme Court denied his claim, ruling that speech in the exercise of job responsibilities is not protected by the First Amendment.

Given that teaching requires speech, teacher statements in the classroom are not generally protected by the First Amendment. The Seventh Circuit described the situation as follows: “Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives. * * * The Constitution does not entitle teachers to present personal views to captive audiences against the instructions of elected officials.” Thus, when Mal spoke about the “occupation” of Afghanistan, for example, he was subject to supervision and, where appropriate, disciplinary action.

Mal’s comments about creationism were even worse. Indeed, they violated the constitutional rights of the students, including the Pious child. Public officials may not use their positions either to advance or to inhibit religion. Recently, a court in California held that precisely this comment about creationism, a religious theory, was a constitutional violation. Teachers and other school officials must be careful not to promote their personal religious views to their students, a captive audience.

Interestingly, Mal’s comments to Nancy Newshound stand on a different footing. Since Mal’s job responsibilities do not include commenting to the press, his statements are not per se unprotected under the Garcetti v. Ceballos rule. Rather, the usual rules apply, and when such comments to the press relate to a matter of public concern, they are protected unless their disruptive effect outweighs their importance.

Mal asked for union representation in his meeting with the parents. When a meeting is called to obtain information that could reasonably cause a teacher to fear for his or her job security, he or she is entitled to union representation. Here, Mal had already admitted making the comments, and thus the meeting was not investigatory in nature, and Mal was not entitled to representation at that parent meeting.

Finally, once again, Bob Bombast has let his mouth get in the way of good judgment. A board member should never publicly opine that a teacher should be fired. If Ms. Superintendent made that recommendation here, Bob would be unable to sit in judgment on Mal, should it ever get that far, because Bob’s comment showed that he would not be impartial in considering Mal’s fate.

Thomas B. Mooney is a partner in the firm's Labor and Employment Law Practice and heads the firm's School Law Practice.

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