At a recent Association Representative Council meeting I was engaged in a discussion with a member regarding Freedom of Speech and academic freedom. This member was adamant that the First Amendment protected him while essentially saying anything he wanted to students in his teaching capacity and that the District had no power to limit his curriculum or his speech. This is simply not true. To the contrary, recent court decisions have made it clear that speech-related to job duties are NOT protected by the First Amendment. Even more alarming is the fact that even speech, which discloses inappropriate conduct, has been found not to be protected by the First Amendment. The following is a synopsis of current court decisions which impact what teachers can say in the work environment.

In 2006 the Supreme Court decided Garcetti v. Ceballos, holding that when employees make statements pursuant to their official duties, they are not speaking for First Amendment purposes, and the Constitution does not insulate them from employer discipline. In Garcetti, Ceballos was a deputy district attorney who questioned a search warrant affidavit and concluded that the charges should be dismissed. His supervisors ignored his conclusions and prosecuted the case. Ceballos testified on behalf of the defendant in an attempt to show that the warrant was faulty. Ceballos claimed that following this incident he was subject to retaliatory employment actions by his employer. The Court held that Ceballos was not protected by the First Amendment, citing that “when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her own freedom.” The Supreme Court’s holding thus limits a government employee’s First Amendment rights.

Following the Garcetti decision, there have been several circuit court decisions that have interpreted the Garcetti holding even more narrowly. In Mayer v. Monroe County Community School Corp., decided in 2007, the Seventh Circuit Court of Appeals held that K-12 teachers do not have the constitutional right to determine what they say in the classroom, they are merely “hired speakers” who must “stick to the prescribed curriculum” and refrain from expressing their own views on the subject under discussion. The court noted that, “children who attend school because they must ought not be subject to a teacher’s idiosyncratic perspectives.” In Mayer, a first year probationary teacher was non-renewed when she answered a student’s question about whether she participated in political demonstrations by stating that when she passed a demonstration against this nation’s military operations in Iraq and she saw a sign, “Honk for Peace,” she would honk in support. This speech was NOT protected by the First Amendment.

In Lee v. York County School, the Fourth Circuit Court of Appeals decided in 2007 that materials posted on the classroom bulletin board by a teacher were curricular in nature and not speech on matters of public concern even though they were religious materials. Consequently, the teacher was not offered First Amendment protection. The court reasoned that the removed materials constituted school-sponsored speech because they were on school bulletin boards and were an attempt to impart particular knowledge to the students.

In Williams v. Dallas Independent School District, the Fifth Circuit Court of Appeals held that Williams’ speech was not protected because it was made in the course of performing his employment. Williams was removed as the high school athletic director and head football coach after he wrote two memorandums to the school’s office manager and principal alleging the mishandling of school athletic funds. The court concluded that Williams’ speech was not protected because as the athletic director he was responsible for buying equipment and other duties and his supervisor needed to monitor the budget. The court noted that speech is only protected when the employee can show that he was actually speaking as a citizen.

Unfortunately, Garcetti and the cases thereafter have really limited an employee’s First Amendment rights. Essentially, there is no academic freedom and the District can designate the curriculum and a teacher is precluded from sharing in their own personal views. If and when you want to exercise your First Amendment rights, be sure that it is not done in the school setting, that it is not made in the course of performing your duties, and that you are making it clear that you are acting as a private citizen.