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SEE YOU IN COURT! - September 2008

September 24, 2008

Authors: Thomas B. Mooney

Nutmeg Memorial High School has been abuzz with excitement over the election of a new President. The faculty has been divided, although there has been a slight majority in favor of John McCain after he selected Mrs. Everywoman to be his vice-presidential running mate. Teachers started putting up posters and wearing big buttons, promoting their candidates. But emotions have been high, and there has been more than one shouting match in the teachers’ room.

Mal Content, social studies teacher at Nutmeg High School, has been one of the most vocal teachers, and he decided to bring the election debate into the classroom. Mal asked students whom they favored for President, and then he selected two volunteers to make the case for Barack Obama and John McCain respectively. The two student volunteers were less than polished, and the other students quickly lost interest.

That changed quickly however, when Mal lit into the student who spoke in favor of John McCain. “Are you crazy?” Mal asked the student in an agitated voice. “McCain is a stooge for Bush, and Bush is a war criminal,” Mal shouted. “If you want change, Obama is the only option!” The students were extremely uncomfortable with Mal’s emotional reaction. But Mal spent another ten minutes haranguing the students, repeatedly telling them that only a fool would vote for McCain.

The next morning, Mr. Principal received an angry call from a parent who described Mal as a bully who should be fired. He promptly investigated, and he uncovered the facts as described above. When Mr. Principal confronted him, Mal was unrepentant, claiming that he was simply exercising his First Amendment rights by expressing his views on a matter of public concern.
Mr. Principal didn’t buy Mal’s claim, and he put a disciplinary letter in Mal’s file. More generally, Mr. Principal sent out a memorandum to all teachers, directing them to cease and desist from wearing any buttons, posting any signs and/or expressing any preferences for any candidate for political office. Mr. Principal was not surprised when Mal filed a grievance, claiming that the disciplinary letter was not for just cause. However, he was shocked when Bill Alot, local legal scourge, sent a letter threatening to bring a class action on behalf of all teachers at Nutmeg Memorial High School to redress “the egregious violation of the free speech rights of Nutmeg teachers.”

The Board convened with Mr. Principal and Ms. Superintendent into executive session to discuss Bill’s letter. The Board members expressed concern that the legal account was already overspent, and asked whether it is really necessary to prohibit political signs and buttons. After further discussion, the Board decided that Mr. Principal’s edict should be clarified, and Mr. Principal sent a revised memorandum that expressly limited the prohibition to the classroom.
Is the Nutmeg Board of Education now safe from legal attack?

                                                                   * * *

Yes. With this clarification, the scope of the prohibition is related to legitimate educational concerns. Moreover, discipline of Mal was appropriate, because Mal has no First Amendment right to harass a student based on the student’s political views.

The United States Supreme Court first dealt with the issue of public employee free speech rights forty years ago. In Pickering v. Board of Education (1968), the Court ruled that the First Amendment prohibits school authorities from firing a teacher in retaliation for the teacher’s speaking out. After Pickering, the courts struggled to balance the legitimate free speech rights of public employees against the need for public employers to maintain order in the workplace and to avoid disruption. In Connick v. Myers (1983), the Court considered the case of an assistant district attorney who created a brouhaha in the office by circulating a petition. In rejecting her First Amendment claim, the Court gave us the analytical framework that we still employ to assess whether a statement by a public employee is entitled to constitutional protection.

First, we ask whether the employee is speaking on a matter of public concern or personal grievance. First Amendment protections apply only when the employee speaks on a matter of public concern. Second, even if a statement is determined to be a comment on a matter of public concern, the school district may still discipline the teacher if the disruptive impact of the speech outweighs the importance of the speech.

Sadly, the Connick rule left an important question unanswered – do public employees enjoy the same free speech protections when their statements are made in the course of their employment? The answer to this question is particularly important in the public schools. The act of teaching is largely speech, and what would otherwise be normal supervision can therefore become a constitutional issue.

Happily, the United States Supreme Court recently answered this question. In Garcetti v. Ceballos (2006), the Court considered the case of another assistant district attorney. He claimed that his First Amendment rights were violated when he was transferred after he wrote a report helpful to the defense. There, the Court ruled that First Amendment protections should not be extended to speech arising out of job responsibilities. The Court expressed concern that public employers must be free to supervise and, where necessary, discipline their employees without being subject to the expense and burden of constitutional claims.

We are long past the days when, in the words of Oliver Wendell Holmes, “petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor, City of New Bedford, 155 Mass. 216 (1892). However, when teachers are fulfilling their job responsibilities, school administrators are able to direct and supervise them as do other employers.

Applying these principles here, teachers clearly have the right on their own time to speak in favor of, and even to campaign for, their favorite political candidates. However, our schools are a place of work. When a teacher stands before students, he or she has great influence. School officials have a legitimate educational concern that a teacher not use his or her position of authority to promote his or her personal political views. Therefore, Mr. Principal’s directive, as clarified to be limited to the classroom, is an appropriate exercise of school authority that does not infringe upon the free speech rights of teachers.

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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