In this portion the class will focus on First Amendment issues relating to school staff and employees.  In addition to a brief canvass of this complex area of law, students will be asked to comment on their experiences dealing with the exercise of First Amendment rights by employees. 
  

1. First Ammendment - General
2. First Ammendment - Public vs Private Concerns
3. First Ammendment - Employee Free Speach and Union Membership
4. First Ammendment - Academic Freedom Issues
   

Supreme Court decisions for this weeks readings are linked from a commercial site located at www.findlaw.com/  FindLaw's legal professionals online resources allow you to search for a case by selecting the Cases and Codes Tab and finding the U.S. Supreme Court submenu.

Midpage you will find the Citation locator. Using the name and citation number mentioned in the readings you could access the case. For instance Connick v. Myers, 461 U.S. 138 (1983) can be found by adding 461 and 138 to the Citation Seach box or by adding Connick v. Myers, to the Party Name Search

Again, for this week's cases have been linked directly within the readings but you may want to add to your favorites list the site mentioned above.

The provisions of the First Amendment of the Federal Constitution and cognate provisions of the Massachusetts Declaration of Rights proscribe governmental interference with or abridgment of freedom of speech. Like all constitutional rights, however, there are limitations to free speech rights, including those of public employees, concerning speech in the workplace or in public.

Administrators should generally assume that they may not restrict an employees freedom of expression, including imposing discipline on employees for their verbal or symbolic speech. Even the general rule, however, permits an employer to discipline employees for their speech assuming an employer can demonstrate that the employee speech was not a substantial or motivating factor in an employment decision. See Mount Health v. Doyle, 429 U.S. 274 (1997). In effect, the United States Supreme Court has recognized that a public employer may balance the free speech rights of employees with it’s interest in running an efficient operation. See Connick v. Myers, 461 U.S. 138 (1983).

In Pickering v. The Board of Education, 391 U.S. 563 (1968), the United States Supreme Court stated that public school employees have a constitutionally protected right to speak out on matters of public concern. In evaluating whether an employee’s speech is a protected matter involving a public concern, you should consider the subject of the remarks and balance the interests of an employee’s right to speak out with the employer’s interest to promote an efficient public school system. An employee who challenges employer discipline on free speech grounds must demonstrate that the protected speech was the motivating factor in the employer’s decision to discipline. Finally, an employer must be given an opportunity to demonstrate that the disciplinary action would have taken place even without the employee’s speech.

As you can imagine, the assessment of whether employee speech relates to a public or private concern is fact intensive. For example, during the feedback received on a previous lesson, one class member inquired whether an employee could be disciplined for complaining to a vendor that the employee had not received a recent raise. This example is the classic "private concern" case. The matter in disputes does not relate to a matter of public policy, political, social, or other concern to the community, such as a debate over the school budget or program. Generally discipline can be imposed under this type of circumstances.

Compare and contrast that kind of incident with a situation in which a teacher speaks at open town meeting concerning the school department budget and allocation of resources within the school department budget. While this speech may be perceived as counterproductive to the school’s mission, the time and place of the comments, and their relevance to an issue being debated publicly, as well as the presumptive familiarity with the subject matter that the speaker would possess, suggest that kind of speech is constitutionally protected.

A third, and more complex, scenario arises when public employees choose to speak in the work place, occasionally even in the classroom, on matter of public interest in so far as they relate to the teacher’s personal preferences.

The first amendment also protects employees rights to freedom of association in the form of union organizing and union membership. See Abood v. Detroit Board of Education, 431 U.S. 209 (1977). There are rare occasions, however, when employee rights to organize and union membership do not bar employer discipline, assuming the employer can demonstrate a compelling state interest. See Hortonville District v. Hortonville Education Association, 426 U.S. 482 (1976).

The Education Reform Act does not authorize a superintendent or principal to discipline an employee for lawful union activities. Earlier case law makes it clear that if a denial of employment benefits is based on anti union animus, or union activities, the Labor Relations Commission and the courts can enter remedial orders to correct the employer’s improper behavior. Those remedial orders can include an order of reinstatement with the effective grant of a tenure or service at discretion. See Southern Worcester County Regional Vocational Technical School District v. Labor Relations Commission, 386 Mass 414 (1980).

Superintendents and principals need to exercise care in assessing whether employee behavior is protected activity. While holding office in a local union or association does not render employees immune from discipline, an employer must demonstrate that discipline would have been imposed for the behavior in any case and that union activities or membership was not the motivating factor in the discipline.

Questions of academic freedom in the Schoolhouse or classroom often present questions which are more political than legal. That is to say, School Districts can and should expect educators to teach their classes and students in conformance with the courses offered by the district part of the curriculum. While there may be some latitude in methodology, employers should feel confident that their curriculum decisions will be upheld.

On at least two occasions in the last twenty years the Federal District courts in Massachusetts have upheld schools which insist on teacher adhere to educational rules or standards. For example, a professor at Southeastern Massachusetts University was properly discharged in part because he failed to follow the grading standards and criteria set by the University. See Loveless v. Southeastern Massachusetts University, 793 Fed 2nd 419 (First Cir. 1986). And in a second case, a teacher in the Cambridge Public Schools attempted to argue that his ribald verbal and written exchange with a student in a High School class was protected by the First Amendment. Once again, the First Circuit Court of Appeals rejected the teacher’s first amendment theories. See Conward v. Cambridge School Committee, 171 F 3rd 12 (First Cir.1999).

This case and those which are not linked to the actual material should be accessed at your local library. I suggest, time permitting, that you try the process once for future reference. Unfortunately there is no free online resource to reference.

In other case, discipline imposed by school officials has been overturned where it was determined by the court that teacher did not deliberately violate school rules or expectations concerning profanity in the classroom. In Hosford v. School Committee of Sandwich, 421 Mass 708 (1996) a teacher was denied tenure professional status at least in part because, in one class composed of special education students, the teacher responded to a student’s use of profanity in the classroom by attempting to review dictionary terms for certain slang and profane words. She argued that her efforts were intended to defuse the situation by engaging in a clinical and academic discussion of word roots.