First Amendment Issues Part
1
What Can School Officials Say And Do?
1st Amendment Issues In Schools
Randall C. Farmer, Esq.
What Can School Officials Say And
Do? 1st Amendment Issues In
Schools
Overview
• Public Employee
Free Speech Issues
•What is a Matter of
public concern
• Political Activities
• Religious Activity
• Internet Speech
Pop Quiz
• Can a public employee be disciplined for
speaking out on a matter of public concern?
• Can teachers or administrators express their
personal religious beliefs in the classroom
school or at work?
• Can employees engage in unionizing activity
during work hours?
• Can a public employee be disciplined for speech
on the internet?
First Amendment
• Congress shall make no
law respecting an
establishment of
religion, or prohibiting
the free exercise
thereof; or abridging the
freedom of speech, or
of the press; or the right
of the people peaceably
to assemble, and to
petition the government
for a redress of
grievances.
Translation
• First Amendment applies
a prohibition on Congress
• Prohibition is extended to
states and local
governments, e.g., school
districts, through the 14th
Amendment
• Prohibition impacts four
areas of civic life: religion,
speech/press,
association, and petition
government
Starting Point For Free Speech:
Garcetti v. Ceballos
• Supreme Court case
decided in 2006
• Generally, two-part rule:
􀂄 Was the employee’s
speech on a “matter of
public concern”?
􀂄 If not, there is no cause
of action in the First
Amendment
Garcetti Continued
● If the speech is on a
“matter of public
concern”, then…
– Does the government
entity have good cause
for treating the employee
differently from any other
member of the general
public
● This becomes a balancing
test – the employee’s
right to speak against the
government’s concerns
regarding the workplace,
etc.
Background on Garcetti
•
•
•
•
•
Ceballos worked for the DA and
reviewed the affidavit and
determined that the affidavit
contained serious
misrepresentations from the
sheriff’s deputies
Ceballos relayed his concerns
about the affidavit to his
supervisors via a memo and
recommended dismissal of the
case
Called as a witness by defense
about his review of the affidavit
Ceballos reassigned to a trial
deputy position, then transferred
to another courthouse, and denied
a promotion
Brought First Amendment Claim
Problem With First Amendment
•
•
•
•
•
•
Clear as mud
Rarely any black letter law
Dealing with shades of gray
Difficult for administrators to know
when an employee is speaking as
a private citizen or pursuant to job
duties
Cannot predict what a judge is
going to do
Scale: more an employee has
discretion, responsibility and
visibility, e.g., superintendent or
high level administrators, less
likely person will be seen as a
private citizen. Actions associated
with position
Three Categories of Speech
• Speech as an Employee – Not protected: “When public
employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment
purposes . . . .”
• Speech on Matters that are NOT of public concern – Not
Protected: “If a school employee does not speak on a matter of
public concern . . . The employee has no First Amendment cause of
action . . . “
• Speech as a citizen on matters of public concern – Sometimes
Protected: If the employee “speaks as a citizen on a matter of
public concern” then there is the possibility of a First Amendment
claim. The employer must show that it had an adequate justification
for treating the employee differently from any other employee.
SO WHEN IS AN
EMPLOYEE NOT A
PRIVATE CITIZEN?
WHAT IS A MATTER OF
PUBLIC CONCERN?
What is NOT a matter of public
concern generally?
• Look at job duties and context
of speech
• Speech related to performance
of employee’s job duties, e.g.,
internal office disputes
• Classroom speech; no
academic freedom and no right
to stray from curriculum. Most
courts rule that teachers do not
have the right to trump
mandated curriculum, e.g., no
right to show R rated movie
Examples
Green v. Barrett, 2007 U.S. App. LEXIS 6200*8 (11th Cir. 2007) (No First Amendment
protection for testimony provided by Chief Jailer regarding jail conditions);
Morris v. Crow, 142 F. 3d 1379, 1381, 1382 (11th Cir. 1998) (“The mere fact that Morris’
statements were made in the context of a civil deposition cannot transform them into
constitutionally protected speech.”);
Dennis v. Putnam County Bd. of Educ., 260 Fed. Appx. 171 *3 (11th Cir. 2007)
(statements regarding budget to county commissioner made pursuant to duties as
school district’s fiscal officer were not protected);
Vila v. Padron, 484 F.3d 1334, 1340 (11th Cir. 2007) (No claim for retaliation under the
First Amendment for the Vice President of External Affairs who held a policy making
position and objected to certain improprieties in the community college’s financial
dealings);
Abdur-Raham v. Walker, 2008 U.S. Dist. LEXIS 25349 * 20 (N.D. Ga. 2008) (No First
Amendment retaliation claim permitted when employees learned of the problems
while performing their job responsibilities.);
Miller v. Houston Co. Bd. of Educ., 2008 U.S. Dist. LEXIS 19394 *36 (M.D. Ala. 2008)
(No First Amendment retaliation claim when student teacher made complaints about
IEPs pursuant to her official duties.)