Free Speech Rights of Teachers and other School Employees

Pickering/Connick Balancing Test
Garcetti v. Ceballos
Mt. Healthy
Public Forum Doctrine
Student Free Speech Quartet
1) (a) In cases where public school teacher speech is the basis for adverse employment action, a court first asks whether the speech that was the basis for the adverse employment action was speech on a matter of public concern based on its content, form, and context. If the speech only relates to matters of private concern, the public school is free to take action against the teacher (or other school employee) without concern about the First Amendment.

1(b) Under Garcetti v. Ceballos, the public concern speech of a government employee is not protected if the speech was pursuant to the employee’s official duties rather than in the employee’s private capacity. The extent to which this ruling applies to teachers speaking in a classroom or writing in a scholarly journal is still unresolved although most lower courts have begun to rely extensively on Garcetti in teacher speech cases. These cases consider the teacher's classroom speech to be official duty speech.  

2) If the speech is protected (does relate to a matter of public concern and is not engaged in as part of the teacher's official duties), a court will balance the teacher’s interest in expression against the school's interest in the effective and efficient operation of the government workplace. This analysis weights the value of the teacher's speech against the adverse impact of the speech on the government workplace including the teacher’s relationship with immediate supervisors and co-workers.

3) If the employer and the employee do not agree about why the teacher was discharged or some other adverse employment action taken, the court will need to cope with the teacher's claim that the reason was based on the fact that the teacher engaged in protected speech and the school's conflicting claim that it was for other reasons. To sort through this dispute, the court will rely on the Mt. Healthy decision to allocate the burdens of proof. Under Mt. Healthy, the burden is initially on the teacher to show (1) his or her conduct was constitutionally protected (under Pickering, Connick, and Garcetti) and (2) it was a substantial factor or a motivating factor for the school's adverse action (discharge, nonrenewal, etc.). If the teacher carries that burden, the burden shifts to the school to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.

4) In another category of teacher speech (particularly where the teacher seeks access to a facility the teacher characterizes as a public forum rather than complaining about an adverse employment decision), it may be possible for the teacher to rely on the public forum doctrine as a basis for asserting First Amendment rights if the employee is seeking access to a designated forum created by the school for teacher expression and the school has precluded the teacher from using that forum. The school may defend by arguing the facility is not a public forum. It may also claim that the facility is only available for the school's own speech and is not available for the personal speech of teachers. The First Amendment does not limit the government's right to speak, it only limits its ability to limit the speech of members of the public (including its employees).

5) Some teacher speech cases rely on the student speech cases (Tinker, Hazelwood, etc.) as one basis for the court's analysis although the extent to which these cases are relevant is not clear.