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.