Rick Bobrick, who comments on the blog as NY Teacher, is a conscientious objector to high-stakes testing. He has done the research on teachers’ free speech rights and offers it here to other readers.
Free Speech Rights of Teachers?
The following are a series of excerpts from various articles concerning the free speech rights of teachers as public employees. This information is intended to shed some light on the general sense of fear that many teachers are feeling in regards to speaking out against the federal test-and-punish reform movement. I am a teacher, not a lawyer, but perhaps this information will help some teachers of conscience make a more informed decision about voicing their concerns about what many of us perceive as the harmful effects of the federally coerced Common Core standards and the required companion assessments, as well as linking said scores to teacher evaluations. In the opinion of many educators, this toxic mix of bad educational policies are undermining classroom environments and often constraining the professional judgment of teachers and limiting or use of best practices.
From the ACLU: https://aclu-wa.org/news/free-speech-rights-public-school-teachers
Teachers do not forfeit the right to comment publicly on matters of public importance simply because they accept a public school teaching position. Teachers cannot be fired or disciplined for statements about matters of public importance unless it can be demonstrated that the teacher’s speech created a substantial adverse impact on school functioning.
A teacher appears to speak for the school district when he or she teaches, so the district administration has a strong interest in determining the content of the message its teachers will deliver. Washington courts have upheld the authority of school districts to prescribe both course content and teaching methods. Courts in other jurisdictions have ruled that teachers have no free speech rights to include unapproved materials on reading lists.
Depending on the precise form of message displayed on the teachers’ clothing, a school may have legitimate concern that a teacher’s display of a political message is more likely than a student’s to disrupt the school’s intended educational message. This right may be limited only if there is good reason to believe that the speech would cause a substantial and material disruption to education or violate the rights of others. Washington courts have not considered the question, but courts in other jurisdictions have differed over whether teachers have the same right as students to display personal political messages on their clothing. In one case, a court upheld a dress code that prevented teachers from wearing political buttons in the classroom because school districts have legitimate authority to “dissociate themselves from matters of political controversy.”
From the New York State Association of School Attorneys:
http://www.guerciolaw.com/school-employees-right-to-free-speech-appears-limited-when-job-related/
School employees’ right to free speech appears limited when job-related.
Does a school employee’s right to free speech stop at the schoolhouse door? While the outcomes of employee disciplinary cases and other cases involving adverse job actions always depend on the facts, court rulings suggest that there has been a deterioration of public employees’ rights to free speech in the workplace. Since the U.S. Supreme Court’s landmark 2006 ruling in Garcetti v. Ceballos, courts have been taking a different approach when public employees claim to be protected by the First Amendment in connection with an adverse job action. All such lawsuits now involve an examination of whether the employee was speaking pursuant to his or her job duties. According to Garcetti, if speech was made as a result of an employee’s job duties, no First Amendment protection applies (see sidebar below). For school districts, the change raises a question that is not always easily answered: What do the “job duties” of a specific school employee entail? Some New York courts have closely examined the employee’s “actual duties” as opposed to the employee’s job description in an effort to afford the most First Amendment protection. Nevertheless, the Garcetti decision appears to have made it harder for public employees to successfully assert First Amendment protection.
The U.S. Court of Appeals for the Second Circuit, which has jurisdiction over all of New York State, made this ruling about free speech rights: “The general principle … is that, when a public employee airs a complaint or grievance, or expresses concern about misconduct, to his or her immediate supervisor or pursuant to a clear duty to report imposed by law or employer policy, he or she is speaking as an employee and not as a citizen.” In light of Garcetti, “the First Amendment does not protect the employee’s speech from discipline or retaliation by the employer,” the court said. The court continued: In such circumstances, the employer is free to “discipline” the employee without violating the employee’s First Amendment rights. If, however, the employee goes outside of the established institutional channels in order to express a complaint or concern, the employee is speaking as a citizen, and the speech is protected by the First Amendment.
For instance, the Second Circuit ruled that statements by a special education counselor to administrators about the lack of physical education and art classes at a satellite BOCES facility were made within the scope of employment and were not protected by the First Amendment. On the other hand, conversations with other teachers about the same issues were not part of any official duty. Therefore, a teacher might be able to prevail in a free-speech defense against any alleged retaliation for critical comments about the school made to colleagues but not if the adverse job action stemmed from similar comments made in the line of duty.
From Joshana Jones, Esq. Atlanta, GA:
http://theeducatorsroom.com/2012/12/teachers-freedom-of-speech-rights/
Public school teachers are in a unique position. They are employees of the state and therefore school districts have an interest in making sure that messages from teachers are in line with the goals and vision of the district.
The following factors will help a teacher understand if their free speech is protected:
1) The speech must touch on a matter of public concern
2) The teacher’s speech must outweigh the district’s interest in efficiency. The courts may consider any of the following:
a) The effect of the speech on the harmony of the staff
b) Whether the speech has a detrimental impact on working relationships
c) Whether the speech interferes with the normal operation of the employer’s business
The Pickering Balance Test: http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html
Essentials of the “Pickering Balancing Test”
Pickering v Board of Education, 391 US 563
The so-called Pickering Test is applied in balancing the interests of a public employer with its employees’ right to Free Speech and requires the court’s consideration of the following:
1. Did the individual demonstrate that his or her speech address a matter or matters of public interest and concern?
2. Did the individual demonstrate that his or her speech was a significant or motivating factor in the employer’s decision?
3. Did the court balance the interests of the individual commenting on matters of public concern as a citizen and the public employer’s interest in “promoting the efficiency of public service?”
From Sherrod v, School Board of Palm Beach County, FL
http://www.leagle.com/decision/In%20FDCO%2020101012611
Protected Speech
In determining the threshold issue of whether a public employee has engaged in speech entitled to constitutional protection, the court first asks “whether the employee spoke as a citizen on a matter of public concern. If the answer is “no,” the employee’s speech is not entitled to First Amendment protection. If the answer is “yes,” “the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”
In Abdur-Rahman v. Walker, 567 F.3d 1278 (11th Cir.2009), the Eleventh Circuit discussed the rationale behind the requirement that a public employee speak “as a citizen” to receive constitutional protection for his speech: First, because “government offices could not function if every employment decision became a constitutional matter,” “Supreme Court precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Second, government employers, like private employers, need a significant degree of control over their employee’s words and actions; without it, there would be little chance of the efficient provision of public services. Because of the unique trusted position that public employees occupy, they ought not to receive constitutional protection for speech that “expresses views that contravene governmental policies or impairs the proper performance of governmental functions. Third, when complaints under the First Amendment are limited to instances in which a public employee proves that he “spoke as a citizen on a matter of public concern,” courts avoid “judicial oversight” of workplace communications and “permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.”
Garcetti v. Ceballos (Wikipedia): http://en.wikipedia.org/wiki/Garcetti_v._Ceballos
Opinion of the Court
The Supreme Court reversed the Ninth Circuit, ruling in a 5-4 decision delivered by Justice Anthony Kennedy that the First Amendment does not prevent employees from being disciplined for expressions they make pursuant to their professional duties.
Kennedy’s majority opinion
The Court wrote that its “precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.” Instead, public employees are not speaking as citizens when they are speaking to fulfill a responsibility of their job.
Though the speech at issue concerned the subject matter of his employment, and was expressed within his office rather than publicly, the Court did not consider either fact dispositive, and noted that employees in either context may receive First Amendment protection. The “controlling factor” was instead that his statements were made pursuant to his duties as a deputy district attorney. Restricting such speech, which “owes its existence to a public employee’s professional responsibilities,” did not in the Court’s view violate any rights that the employee had as a private citizen. Instead, the restrictions were simply the control an employer exercised “over what the employer itself has commissioned or created.”
NYSUT “Free Speech” lawsuit:
http://www.nysut.org/news/2014/october/lawsuit-charges-state-education-department-ban-on-discussing-tests-violates-free-speech
ALBANY, N.Y. Oct. 9, 2014 – New York State United Teachers has filed suit in federal court seeking to invalidate confidentiality agreements the State Education Department requires teachers to sign before scoring state tests, saying the prohibition – with its accompanying threats of discipline, including dismissal, license revocation and criminal prosecution – is an unconstitutional prior restraint on teachers’ free speech rights.
The suit, filed Wednesday by NYSUT’s Office of General Counsel on behalf of five teachers, charges the State Education Department with violating teachers’ First Amendment and Fourteenth Amendment rights by preventing them from speaking out on matters of public concern. The suit charges SED’s rules unconstitutionally make teachers’ speech conditional on government approval while establishing a “system to police the free exchange of ideas and opinions regarding its compulsory and costly testing regime.”
Bobby Jindal’s Executive Order: http://eagnews.org/bobby-jindal-issues-executive-order-protecting-anti-common-core-teachers/
BATON ROUGE, La. – Louisiana Gov. Bobby Jindal has issued an executive order to protect teachers who are critics of Common Core national standards. Teachers statewide are feeling pressure from all sides, saying they are overworked and students are over-tested, and now many are saying they aren’t allowed to voice concerns or dissenting opinions.
The newspaper reports today, “Jindal issued an Executive Order to protect freedom of speech and the rights of teachers.”
The order reads, in part:
FREEDOM OF SPEECH PROTECTIONS FOR LOUISIANA TEACHERS
NOW THEREFORE, I, BOBBY JINDAL, Governor of the State of Louisiana, by virtue of the authority vested by the Constitution and the laws of the State of Louisiana, do hereby order and direct as follows:
SECTION 1: As part of the ongoing discussion among state and local education officials, teachers, parents, and stakeholders regarding classroom curriculum and testing, and as part of the larger discussion of the quality of Louisiana’s educational system, legal guarantees afforded to all citizens shall be maintained and provided to teachers;
SECTION 2: State and local school administration officials are not authorized under the existing laws of this state to deny a teacher’s constitutional freedom of speech in order to stifle the discussion and debate surrounding curriculum and standardized assessments by teachers.
If after reading this you still believe we live in the country of liberty that you were taught about in K-12 school, you have your head up your posterity! (Pun intended!)
So before going public, a teacher needs to clear it with legal.
Free SPEECH for teachers? Well…look around.The yahoos are afraid of us, that’s why they want to muzzle us.
Instead, the restrictions were simply the control an employer exercised “over what the employer itself has commissioned or created.”
Right. And according to one circuit court judge, teachers are not more than “hired speech.” Teachers are thus required to follow the rules made by school boards on all sorts of matters, including rules that require board of education approval of reading lists for students… Evans-Marshall v. Board of Education of Tipp City Exempted Village School District, No. 09-3775 (6th Cir. Oct. 21, 2010).
Based on what I just read, couldn’t teachers face consequences if we encouraged students to opt out and then our district lost ten report card points due to failing to meet the 95% participation mandate? Teachers have such fear, and rightly so. I don’t know if this information has lessened that fear.
That’s what I was told by the UEA lawyer in Utah. We are not allowed to even suggest opting out to parents.
Of course, teachers have free speech rights. However, there may be a way for employers to still fire or reprimand based on insubordination or whatever charge they can trump up. I recall a NYC police officer that posed for a nude picture in a magazine. She argued free speech, won and got fired anyway, not for free speech, but for conduct unbecoming an officer. Free speech is a right, but we are not immune to the consequences, since most contracts have an insubordination clause I say proceed with caution.
I haven’t read all the excerpts but the ones I’ve read seem to indicate a common thread that teachers have free speech rights outside the job. So if you’re on your own time, your own property and using your own equipment (or at least not on school property or using school equipment), I don’t see how any school authorities have any business telling you what you can or can’t say.
Not according to the UEA lawyer. I was posting information about opting out on my own computer, at home, on my own time, and yet I was STILL told that I could not do that. That’s why I’m “Threatened out West.”
Threatened
Demand to see the actual statutory law that prohibits the activity you describe. Do not take no for an answer. I would be surprised that one exists. And if they cannot provide the verbatim state law that you would be violating, you know they are bluffing. The due process clause of the 14th Amendment prohibits states from eroding free speech rights. Any action taken against you, in the absence of statutory law, would have to be based on case law (see examples). When I pressed the issue with the NYSED, they admitted that they could not take legal action against teachers who speak out. In NY, it is strictly up to the school district to bring a teacher up on charges regarding free speech violations. To the best of my knowledge, this has yet to happen. They would have to prove that a teacher’s words significantly prohibited them from carrying out their normal business (i.e. testing). They would also have follow all due process guidelines, one of which requires that they consistently apply their rules to all employees. I urge you to pursue this threat, as the law may actually be on your side.
No statutory law that I know of, but a strenuously written letter from the state superintendent. I’m in a right to work state. We get no protections here.
You still live in the United States of America and have free speech rights that are protected as a private citizen. The due process clause in the 14th amendment requires all states to extend federal first amendment free speech rights to their citizens. Utah is also an anti-SLAPPP state which protects you against powerful, monied interests from filing no-win law suits against individuals intended to break their will and drain their resources. I suggest contacting the Utah branch of the ACLU. I did that here in NY and found them to be very supportive. Much of the fear that permeates our profession has ben fomented using our ignorance of the law and our general complacency and compliance.
As someone already said, there is a distinct difference between freedom of speech and workplace protections. Remember that employment is a voluntary condition that you are legally free to leave at any point. As a result, termination is not technically a barrier to free speech. So, while employed you are certainly permitted to say what you like, but your employers are similarly permitted to terminate your employment if you don’t confirm to their conditions of employment (esp. In a right to work state). Teachers are in a difficult position because often it’s difficult for them to make a distinction between when they are teachers (and therefore representatives is the district) and when they are just people. I was told as a rule of thumb to assume I was functioning as representative of the district whenever I am being treated as if I’m a teacher – for example when I’m addressed using my ‘teacher name’, when discussing topics related to education, and when using media that my students or their parents can access.
Reblogged this on Crazy Normal – the Classroom Exposé.
I blogged about the same topic some years ago – the question of protected and unprotected speech outside of the classroom, the bottom line school districts, under certain circumstances, can take disciplinary actions.
Just another in a long line of reasons why TENURE matters.
Yup, Mark, non tenured teachers can be non renewed without a reason.
Ironic that the organization that brought a suit against tenure (ACLU) is concerned about teacher’s rights. Why do they believe that teachers who criticize school administrator won’t lose their jobs because they no longer have the protections of tenure.
When did they (ACLU) file this suit?
Note to teachers: You could be fired by a board, even if members have no more than a high school education, for buying Scholastic Books at $1.00 a piece as class sets out of your own money. Once I had to defend “Bunnicula” to a board for a single copy donated by a parent. I said, “It’s about a bunny and is a Scholastic book,” and they approved it. Good thing I didn’t say it was a about a vampire bunny.
So Liberty doesn’t exist if you work for the government.
Now I understand “underground” better.
To be clear, working for the government is the thing that gives a public employee any First Amendment rights at all.
Not clear.
The First Amendment is NOT about government giving rights, it IS about limiting the governments ability to interfere with yours and mine Unalienable Rights endowed by the Creator.
In this discussion of First Amendment Rights — Freedom of Speech — working for the Government has come to mean that restricting and or abridging your freedom to speak is now allowed because the Supreme Court has determined that it is the RIGHT of the employer, the Government, to control the speech of its employees otherwise it cannot provide efficient public service.
This is supposed to be a government OF THE PEOPLE, not FOR THE PEOPLE. When it is FOR THE PEOPLE you create a ruling class which must restrict the liberty of the people in order to operate effectively on their behalf as the ruling class sees appropriate.
Daniel Ellsberg & Eric Snowden would never been allowed to tell the truth in a Government for the people. In fact, they were labelled criminals. In a government OF THE PEOPLE they are heroes who have allowed the people to continue the fight to limit government.
Isn’t limiting (abolishing) Federal intervention/imposition/coercion of our local education authority what this whole anti-deformer discussion (hopefully movement) is all about?
If those who work in the system and see the need to get the deformers out cannot say so, then teachers have unwittingly entered into a form of indentured servitude outlawed by the XIII Amendment.
To (hopefully) be clearer, the First Amendment limits government action. Thus, if your employer is the government, the First Amendment places limits on your employer’s power to “abridge” your freedom of speech. If your employer is not a government entity, the First Amendment does not place any such limits on your employer.
FLERP!
The concern here is not with the private sector, it is with the Government. The First Amendment applies to limits on Congress’ ability to abridge Freedom of Speech. The cases cited here all flow from Executive Branch or State/Local abridgments of speech. Working for the government now means forfeiting your right to free speech which means that those involved in these issues cannot speak out and therefore the public will be limited to only one side of the issue. This is a seminal case of government FOR THE PEOPLE.
I contend that teachers (and the general citizenry) have unwittingly seen the fundamental transformation of our liberty from one that limits government to one where government now establishes the limits.
The crisis in education is just one part in the Decline of America
http://www.cbsnews.com/news/the-decline-and-fall-of-the-american-empire/
Jim, the argument that the First Amendment applies only to Congress is an extremely interesting argument. I’m not an expert in this area, but I can tell you that the mainstream view is that the First Amendment has been incorporated to the states through the Fourteenth Amendment, and thus applies to state legislatures. And in practice, essentially every action by an executive agency apart from possibly the military — but certainly including school districts — can be connected to some statute (including statutes that create such agencies and authorize rulemaking by the agencies). So if you’re under the impression that the First Amendment does not apply to the employers of public school teachers, you are just wrong, at least in the sense the First Amendment is not applied the way you think it is or believe it should be.
FLERP!
The First Amendment states that Congress shall make no law prohibiting or abridging the freedom of speech. The intent was to limit the Federal Government’s ability to interfere with this right. The XIV Amendment further extended this to any authorized government within the United States.
I AM under the impression that government employers cannot restrict my freedom to speak.
I AM distressed that government employers think they can.
Americans too often conflate freedom with lack of consequences, but that’s not at all accurate. There are often consequences for freedom. In this case, legally employment is a voluntary condition that you enter into willingly and are just as free to leave. By accepting the job you are also accepting the employer’s conditions of employment – which may include codes of conduct or other limitations on employee actions (e.g., arriving at a given time, prohibiting you from accessing Facebook on company computers, etc.). As such, from a legal perspective you are actually limiting your own freedom by accepting the terms of employment, and if you do not like the terms you are free to seek employment elsewhere just as the employer is free to terminate your employment if you choose to violate those terms.
Thomas Hobbes would have admired your spirited legal defense of how liberty granted by the Constitution must give way to the government so that no criticism or dissension in a Government FOR THE PEOPLE could be tolerated.
The conundrum in your argument is that the very people essential to the education of the children, teachers, can not speak out or criticize when they see something wrong.
Orwell would be proud of the posterity of our post constitutional state./
Your reference to Hobbes is… sloppy, and frankly introduces a strawman. That makes me think that you’ve got your own agenda and will only hear what you want to hear. In hopes that I’m wrong, though, I’ll respond to a few things. First, the biggest problem with your claims is that you conveniently forget that freedom works both way. The first amendment simply prohibits the government from establishing laws to limit free speech. It does not issue you any protection from the (otherwise legal) retribution of others (who also have freedom of speech). To use a recent example, Chic-fil-a was perfectly free to speak against legalizing same-sex marriage just as supporters of same-sex marriage were free to criticize the company and organize a boycott to pressure the company to back down. This action was certainly unpleasant for Chic-fil-a, but it was not a violation of their first amendment rights.
In the case considered in the blog, the teachers are free to criticize the schools just as the schools are free to terminate the teachers for being critical to discourage others from following suit. In simplistic terms, this is basically the same thing as a friend deciding to stop talking to you in response to something you’ve done that upset him or her. The sanctions are only applicable to those employed by the school (i.e., the school can do little to discourage non-employee criticism), which significant undermines any claim that the government has established a law to limit free speech. If you can’t demonstrate that, the first amendment has not been violated.
A second problem is your suggestion that because public schools were established and are partially funded by the government, they are somehow part of “the government” referenced in the constitution. Now, I’ll accept that federal and state departments of education could fall under that umbrella because they establish policy and contribute directly to legislation. To include teachers and principals, though, is a fairly ridiculous stretch. Since you fail to detail your reasoning for that claim, though, I won’t bother guessing what it is so I can respond to it directly.
Eric — schools are among the government employers who are subject to the Free Speech Clause of the First Amendment.
Hee, hee. The assumption about teachers being free to speak honestly strikes me as humorous, knowing what i know about the process.
http://www.perdaily.com/2011/01/lausd-et-al-a-national-scandal-of-enormous-proportions-by-susan-lee-schwartz-part-1.html
In NYC, the principals simply invented things and charged teachers with insubordination or worse. Look up David Pakter.
It took half a million dollars and ten years of his life to prove that the principal of his school was malicious, because he lost at the hearing,w here principals not sworn under penalty of perjury, do just that.
And then there is Lorna Stremcha who has published her story as a novel, but who was set up by her principal, to be sexually assaulted, and when his harassment continued she sued, and won, and spent all her savings, and years of her life… WHY…Same story! in fact, here it is:
and if one really wants to grasp how teachers have no rights, how these rights were stripped when they were treated as”employees at will’ instead OF AS ‘tenured’ teachers –who diD not have lifetime jobs (A COMMON MISTAKE) , but DID HAVE A BARGAINING AGREEMENT, WHICH GAVE THEM DUE PRCESS RIGHTS. Take a look at some of the genuine stories here, and now you have the BIG PICTURE about the so-called ‘rights’ of Americans in the educational workplace.
http://endteacherabuse.org/
and if you are still naive about the reality of the ‘rights’ of teachers this journalist’s sites will put that to rest – here are two of her sites on NYC lawlessness
http://nycrubberroomreporter.blogspot.com/2009/03/gotcha-squad-and-new-york-city-rubber.html
http://parentadvocates.org/index.cfm?fuseaction=article&articleID=7534
and this teacher is still fighting to keep his job
http://protectportelos.org/does-workplace-bullying-continues-my-33-hrs-behind-bars/
and this is still going going on in LAUSD.
http://www.opednews.com/Quicklink/The-Right-Warms-Up-to-Clim-by-James-Quandy-Change_Climate-Change_Climate-Change-Deniers_Climate-Crisis-150319-893.html
There are 15,880 districts in 50 states, and it is impossible to know what is true in any one place, but one thing is clear at this site… the legislatures are bien bought by dark money, and with the ‘failing schools’ in their states, they are taking charge… and nary an educator on board… the professional teacher is going to be GONE, in a blink, except where parents can afford to pay.
I would think that if a district employee were speaking up against policies outside the scope of their contractual employment hours, not on employer property, and during private hours as a private citizen, then the law protects such a person under the First Amendment. If this is not the case in any state, then the Constitution is being misinterpreted and must be challenged in court.
For example, if a teacher were to speak out against the Common Core at a dinner party with other parents who were friends, taxpayers or relatives, then the teacher cannot be touched. But if the teacher said the same things on school grounds to other employees, students, or parents, then, there may very well be issues.
Does this make sense?
No it does not make sense.
So you cannot express your valid opinion without someone’s permission? Even if it may be true or at least what you believe?
The intent of the First Amendment (please read Madison’s works & Jefferson’s opinions & especially Benjamin Franklin’s discussion of Free Speech) is to guarantee (not merely allow) every citizen the ability to speak freely without censure, reprisal, or punishment from those in the government OF THE PEOPLE.
Further, the XIII Amendment abolished the concept of indentured servitude.
I agree this should have been challenged in court, but the courts are the ones misinterpreting the law to the detriment of all our liberties.
I agree, but even in the scope of employment?
Yes, you have accurately described the limits of free speech on public employees.
You are free to speak out as a citizens on a matter of public concern. Apparently, you can even express your concerns about the mis-use of testing as a citizen at an open (public) BOE meeting.
We’ve been told we cannot even post comments or pictures of anything to do with alcohol on social media. If I’m having dinner with friends and someone takes a picture and there is a glass of wine on the table and I’m tagged in the pic I could get fired because they are periodically “monitoring” us on social media and we can’t “endorse” alcohol even though we are grown adults and not doing it on the job. That seems unconstitutional to me!
RR
Another important protection is the due process guideline that requires your employer (NYCDOE) to apply their rules to ALL employees in a consistent manner. This prevents them from filing charges selectively.
Thank you. I assume this is true about the state? I work for the state.
This is one clause of the due process protections for any teacher in New York State. The source was the NYSUT handbook.
DO YOU NOT understand that they fabricate anything they want to?
They are not sworn to perjury in the hearings… now these kangaroo courts take place years later…and the teacher loses. Then ,if you want to give up years of your life and all your savings, go to court, like Lorna Stremcha did. You may win, BUT you may lose like Walter Porr, or Karen Horwtitz. Where is the ACLU? Queen sabe, who knows. They were no where in sight when NYC teachers went down by the thousands… couldn’t get the time of day from hem
Robert & FLERP,
I’m not advocating chaos in the workplace.
I am not insubordinate for expressing my opinion. I am insubordinate if I do not carry out my required duties.
When my employer makes it my duty to not express my opinion particularly if it is the government then the employer is violating my right to speech.
This is not about discussing what happened on Empire last night, this is about how we educate our children and preserve our liberty for our posterity.
When the government meets so much resistance that they resort to censorial measures then it is the duty of the censored to speak louder.
Since our second president in 1797, the US Constitution has been under attack by the government trying to expand it’s authority and limit our unalienable rights. Our Constitution and Liberty are rooted in John Locke, not Thomas Hobbes; yet the government by Hobbes own admonition has inexorably sought to limit the scope of our rights.
“Without Freedom of thought there can be no such thing as wisdom;and no such thing as public liberty, without freedom of speech.” B. Franklin
The courts, albeit reluctantly, have tried to restrain the other two branches of government in their quest for National Authority. With the advent of the XV Amendment, The Commerce Clause (Article I, Section 8, Clause 3) and Elastic Clause of the Constitution (Article I, Section 8, Clause 18) courts over the last several decades have constricted our liberty for the benefit of the Government FOR the People vice the government OF the people.
The deformer issue is one of many where the Federal system seems to have eroded every level of government to mere (under funded) caretaker entities which are now beholden to the ruling class in Washington DC.
I will continue to express my opinions on this and every issue because it is my duty as a citizen in the government OF the people. I seek to limit the government FOR the people and give authority to make decisions back to people where they live because we all don’t live in foggy bottom.
Even if you technically can’t be fired, they can still find ways to make your life miserable.
See Sherrod v Palm Beach County. He sued his school district for vindictive action as a result of comments he made at a BOE meeting. The Supreme Court ruled in his favor.
you got it!
I wish this were true in all cases, but the ability of “test secrecy” to trump First Amendment is still lurking out there. In my case (Chicago Board v. Substance and Schmidt) the Seventh Circuit held that the First Amendment was overruled by the “copyright” rights of the Board of Education. The contorted reactionary opinion of Judge Richard Posner can be found at http://caselaw.findlaw.com/us-7th-circuit/1423085.html.
The net result of that case was the the Chicago Board of Education and Paul Vallas were able to fire me for “copyright infringement” after I had published the CASE tests in Substance (even though Substance was my “second job,” and was separate from my teaching job at Bowen High School). Posner’s opinion is a contortion that is worth reading, since it’s so nasty (and since some people take Posner’s consistently reactionary rantings seriously). There were two issues in the case at the finish line: First, whether the Board could collect damages in excess of $1 million against me and Substance for having violated their “copyright” on the CASE tests we published and second whether the Board could fire me despite the fact that I claimed First Amendment protections.
The Board reduced its damages claim to zero before we went to trial, after I told the magistrate judge that I was invoking my Seventh Amendment right to a jury trial in a civil case and intended to prove that the CASE tests were actually a waste of a million dollars. (We had UCLA consultants to the Board who had repeatedly stated in secret that the Board’s CASE work was shoddy, but the Board pushed ahead, from shoddy to shoddier). The Board had been dropping its “damages” claim from $14 million to $700 by the eve of trial, and the judge didn’t want to take up his courtroom with all this (he told me to my face) so he pushed CPS to (a) drop its damages claim (which nullified my Seventh Amendment rights) and withdraw its claim for “attorney’s fees and costs.” The did both, successfully nullifying my First Amendment rights because Posner had raped them in his decision (and the Supreme Court declined to hear our appeal on that question).
Going into all that beginning in January 1999 (when we published six of the 22 CASE “pilot” tests in Substance) I was confident that the First Amendment held, since I had published the tests at Substance, which was separate from my jobs teaching English and being security coordinator at Bowen High School. By August 2000, when the Chicago Board voted to fire me at an open meeting (which I sat through) the First Amendment was at the center of the CASE case. Most teachers cannot support such lengthy litigation as we had to endure (or the fact that the blacklist against me not only applied to Chicago, but across public schools in the region) without outside help, so we have to be careful. During the early part of the problem (1999 – 2001) the leaders of the Chicago Teachers Union (Tom Reece et all) actually supported Paul Vallas against me and Substance. After 2001, the new leaders of the CTU (Debbie Lynch) supported me and us, and one of the most brilliant documents stating teacher First Amendment rights was an amicus curiae filed by CTU at the Supreme Court. Sadly, the court simply denied cert and it was all over, leaving the law in the hands of the Posner decision.
There is an old joke from the former Soviet Union about freedom of speech. It went, In Russia you have freedom of speech, in America you have freedom after speech. Perhaps on the issue of speech America is beginning to emulate the old Soviet Union, at least when it comes to teachers.
Cordially,
J. D. Wilson, Jr.
great post
So intereting, 16 years after I discovered that I had no rights whatsoever in NYC.
The ACLu looked the other way at that time, and I, and thousands of other teachers couldn’t get any help when the union did not give me the protection of the 6 th amendment.
The principals, a we see demonstrated this very day in LAUSD, are NOT sworn to perjury , altho kangaroo courts where they get to say anything they wish, YEARS AFTER the teacher is removed and sent to a teacher jail. or worse as these two incidents reveal
http://www.perdaily.com/2010/02/yesterday-i-was-removed-from-class-in-handcuffs.htmlone in LA one in NYC
http://protectportelos.org/does-workplace-bullying-continues-my-33-hrs-behind-bars/
WHERE WERE THE UNIONS
http://www.perdaily.com/2015/01/were-you-terminated-or-forced-to-retire-from-lausd-based-on-fabricated-charges.html