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:


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:


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


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:


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:




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.