Guest Viewpoint
Legal Ease/School Law Notes: Regulating employees’ rights to free speech
By Maurice A. Watson and Derek T. Teeter
Fall '09 -- Teachers and public school employees do indeed shed some free speech rights “at the schoolhouse gate” -- notwithstanding the Supreme Court’s pronouncement to the contrary in Tinker v. Des Moines Independent School District. A school district may regulate certain work-related or “official” speech of its employees consistent with its right as an employer to control speech that it expressly, or by implication, “commissioned or created.” As the Supreme Court recently explained in Garcetti v. Ceballos, a public employer can regulate an employee’s “official” speech because such regulation “reflects the exercise of employer control over what the employer itself has commissioned or created.”
At the same time, the First Amendment limits the ability of a public employer to leverage the employment relationship to restrict an employee’s ability to speak as a private citizen. Consequently, when a public school employee speaks as a private citizen on a matter of public concern, a school district may not freely restrict such speech. A district can only restrict an employee’s private speech on a matter of public concern where its interest in restricting the speech outweighs the employee’s right to speak on the issue.
While distinctions between “official duty” speech and private speech occasionally are blurry, real-world applications are instructive. In Brammer-Hoelter v. Twin Peaks Charter Academy, former teachers sued an elementary charter school and its principal for violating their First Amendment rights. The teachers voiced concerns about the operation, management, and mission of the school to parents and private citizens outside of school. In response, the school’s principal issued a gag order, prohibiting the teachers from discussing school matters outside of work. After the teachers disobeyed the order, the principal and school allegedly subjected them to retaliation in the form of poor performance evaluations and intolerable working conditions.
In assessing the merits of the teachers’ First Amendment claim, the court examined the distinction between “official duty” speech and private speech. When a public employee speaks about tasks “within an employee’s uncontested employment responsibilities,” the court reasoned, such speech is made pursuant to an employee’s “official duties.” Using this test, the court found that the teachers’ complaints about policies for student discipline, curriculum, and pedagogy, constituted “official duty” speech because such topics related to tasks within the teachers’ employment responsibilities. Regulation of speech on such topics was, therefore, constitutionally permissible.
However, other topics discussed by the teachers did not relate to their official duties -- including whether the school’s charter would be renewed, who should be elected in the upcoming school board election, and whether the school had the legal right to restrict their speech. When the teachers spoke on these topics, they did so as private citizens. Upon finding these topics were matters of public concern, the court disallowed regulation of the teachers’ speech relating to them.
As Brammer-Hoelter makes clear, school districts must take care whenever they attempt to regulate employee speech. While school districts have considerable power to regulate employee speech relating to employees’ official duties, regulation of an employee’s speech as a private citizen offends the First Amendment and exposes school districts to liability.
Maurice A. Watson is a partner with the law firm Husch Blackwell Sanders LLP. He serves on the Board of Directors of the NSBA Council of School Attorneys. Derek T. Teeter is an associate with Husch Blackwell Sanders LLP, specializing in constitutional and appellate litigation.
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