When it comes tofreedom of expression, many students believe they have it rough. Dress codes,“free speech zones” and censorship can make it difficult for students to speaktheir minds. But if recent controversies are any indication, teachers may haveit just as bad – if not worse.
Teachers have the sameFirst Amendment rights as anyone else — so long as they are not speaking asrepresentatives of the school or in a school setting. But if they’re withinschool walls, or even just acting as an employee of the school, their speechcan be – and often is – limited.
“One major differencebetween how a district can regulate employee speech and student speech is thatregulation of student speech is, at least in part, geographic,” explainedStudent Press Law Center Attorney Advocate Adam Goldstein. “A student has morefreedom at home than he or she does in a classroom. Control over employeespeech varies with topic, not geography.”
This means thatalthough a student can go home and shout from the rooftops that he thinks histeacher is stupid, a teacher may not be able to announce to the world that shefinds her students repulsive.
A 2006 Supreme Courtdecision, Garcetti v. Ceballos, is at the root of most restrictions onteacher speech. Richard Ceballos was an attorney with the Los Angeles DistrictAttorney’s office who voiced his disagreement with a warrant that had beenissued, and later claimed he was retaliated against for airing his legallyprotected opinion.
The Supreme Courtdisagreed. As Justice Anthony Kennedy wrote in the majority opinion, “Restrictingspeech that owes its existence to a public employee’s professionalresponsibilities does not infringe any liberties the employee might have enjoyedas a private citizen.”
In other words, asGoldstein explained, “Whatever a teacher’s job duties are, a public school canregulate speech about those job duties to some extent, and fire teachers whodon’t follow those regulations.”
That decision enabledan Indiana school district to fire elementary school teacher Deborah Mayerafter she expressed her opposition to the war in Iraq while teaching currentevents. The 7th U.S. Circuit Court of Appeals found in 2007 that based on Garcetti, “[W]hatever the school board adopts as policy regarding what teachers arepermitted to express in terms of their opinions on current events during theinstructional period, that policy controls and there is no First Amendmentright permitting teachers to do otherwise.”
However, Goldsteinnoted that Garcetti still leaves much room for interpretation.
“The five votes fromthe majority in Garcetti are all still there, but I genuinely don’tknow if they would vote the same way in an educational context,” he said. “Garcetti involved an employee’s criticism of his employer in the context of hisemployment. I just don’t know if it was really the justices’ intent for thatrule to apply to an eighth grade science class learning about evolution.”
The Internet haschanged speech for both students and teachers. Several cases regarding studentonline speech are working their way through the court system now, and theSupreme Court is being asked to take up three of them, which involve blogs andsocial media.
Much as it may dismaystudents, teachers also have lives outside the classroom, including usingsocial networking sites. But many havefound themselves more restricted by school administrators than their students.
In March 2011,Jennifer O’Brien of Paterson, N.J., made a comment about her first-graders onher Facebook page: “I’m not a teacher – I’m a warden for future criminals!”According to Reuters, her Facebook page was only viewable by friends, but a fewpeople forwarded the message until it reached parents’ hands. O’Brien said shewas just letting off steam, but the school insisted that her comments becamedisruptive when they caused parents to arrive at the school demanding herremoval.
O’Brien is hardly theonly teacher to find herself out of a job thanks to a slip-up on a blog orsocial networking site. In Georgia, former Barrow County teacher Ashley Payneis suing her district for forcing her to resign over two Facebook photos of herat a dinner table with glasses of beer and wine, taken during a Europeanvacation. A tipster sent the photos to Payne’s supervisor, who asked for herresignation, claiming that she used bad judgment in posting photos with alcoholthat could be seen by students — even though her Facebook profile was notpublicly viewable and there was no evidence any student ever saw it.
Pennsylvania highschool English teacher Natalie Munroe was more fortunate. She was suspendedafter being “outed” as the unnamed author of a blog ranting about incorrigiblestudents — whom she referred to as “lazy whiners” destined for work as garbagecollectors — and their demanding parents. After an internal investigation, Munroewas notified in August 2011 that she could return to the classroom.
According toGoldstein, teacher free speech challenges have become more difficult to winsince Garcetti, because schools can argue that speech aboutstudents arises out of teachers’ “professional responsibilities.”
“[T]hese casesprobably would be pretty rare, since they require speech that’s offensiveenough to discipline someone, yet legitimate enough to defend,” he said.
Although schools canseek cover from the Garcetti ruling even without creating an explicitsocial networking policy, many schools are also creating local codes dictatinghow teachers can use their online accounts if they’re used to discuss orfacilitate their time in class. According to the Huffington Post, school boardsin at least five states have adopted or are considering adopting a set of“guidelines” for teachers using social media. The suggestions range fromrecommending that teachers refrain from communicating with students online tokeeping their personal social media profiles “rated G.” These codes are newenough that they have yet to be tested in court, but cases challenging theseguidelines may provide clarification on just how far a school’s discretionunder Garcetti can go.
Of course, there arepractical as well as legal considerations in a teacher’s ability to challengethe punishment of her speech. Non-tenured teachers typically work onyear-to-year contracts, and a district generally is not obligated to furnishany explanation for refusing to renew a one-year contract. So a teacher maynever learn that her Facebook posts cost her a job.
Colleges and universities
While teachers atpublic K-12 schools have limited rights, and teachers at private schools evenless so, their counterparts at the college level may have more leeway when itcomes to speaking their minds in class.
“Generally speaking,courts have viewed what goes on in primary and secondary classrooms as beingunder the total control of the school board, however lousy the school boardmight happen to be,” Goldstein said. “At the same time, there seems to be a bitmore of an understanding at the higher education level that, if you hire aprofessor to talk about a topic, and the professor talks about that topic,there might well be some kind of First Amendment right to express an opinion onthat topic.”
The Supreme Courthinted in the Garcetti case itself that the justices might ruledifferently in a case involving professors rather than prosecutors: “There issome argument that expression related to academic scholarship or classroominstruction implicates additional constitutional interests …(.) We need not,and for that reason do not, decide whether the analysis we conduct today wouldapply in the same manner to a case involving speech related to scholarship orteaching.”
One case is alreadytesting Garcetti’s limits in the context of higher education.In Adams v. Trustees of theUniversity of North Carolina-Wilmington, a college professor, Michael Adams, claimed he was unfairly denied tenurebecause of his vocal conservative activism. When the case got to the 4th U.S.Circuit Court of Appeals in 2010, the court determined that Garcetti does not apply in the academic setting of Adams, raising thequestion of whether Garcetti has an exception for professors. The SupremeCourt has not ruled on the issue to this point.
Anita Levy, associatesecretary in the department of academic freedom, tenure, and governance at theAmerican Association of University Professors, said her organization stronglyopposes attempts to restrict professors’ speech.
“There have beencalls, primarily by the right, to limit professorial speech in the classroom,and indeed in general,” Levy said. “But as far as we’re concerned, I can’tthink of an instance where that would ever be appropriate.”
The AAUP has issuedseveral statements on its website emphasizing the importance of upholding“academic freedom” for professors on college and university campuses. However,Levy noted that their statements are merely guidelines for schools. Some courtshave viewed the notion of constitutionally protected academic freedom withscepticism.
The issue may beaddressed soon by 9th Circuit U.S. Court of Appeals, which covers the WestCoast. A Washington State University communication professor is challengingevaluations he received, claiming they were given in retaliation for hiscomments on how to improve journalism training at the university. A lower courtsided with WSU, citing Garcetti. The professor, David Demers, has said AAUPwill file a brief in his case.
Goldstein cautionedthat the law may not be as accepting as organizations like the AAUP would like.
“I wouldn’t say that’sbeen reflected in the [case law] in any way… I think we just expect the worldto work that way,” Goldstein said. “If Hypothetical State College decided tofire a professor for teaching that the world is round and is not the center ofthe universe, I don’t know of any First Amendment precedent that would preventthem from doing that. That said, generally speaking, an institution that existsfor educational reasons tends to have policies and internal and externalpressures to prevent that from happening.”
Social media policiescould also be a concern for college professors. Levy said she has yet to hearof such speech codes at the university level, but that the AAUP wouldstrenuously object to the implementation of such policies, particularly if thecase law establishes classroom freedom for professors.
“I don’t think itshould change all that much, although I think again there have been instanceswhere universities have attempted to discipline faulty members for onlinespeech,” she said. “Under our policies, I don’t think there would be all thatmuch difference between online speech and not.”
By Emily Gerston, SPLC staff writer