Teacher Speech in Public Schools

It is a point of pride among residents of the United States that they have substantial freedom from governmental interference in matters involving speech and expression. When it comes to politics, economics, religion, the arts, social issues, general affairs of state, and most other topics, there are not many views that individuals are prohibited from expressing. Nor are there many constraints on the methods that individuals may employ to do that expressing. However, in some contexts the government has greater latitude to engage in actions that impose restrictions on the person’s right to speak. One of these areas is that which encompasses speech by governmental employees—a group that the courts have concluded can be subjected to quite rigorous speech-curtailing policies. Teachers who work in public schools constitute a subgroup of governmental employees that, perhaps more often than others, feel the pinch imposed by the squeeze of these government policies.

The authors of a prominent textbook on American public school law offer a concise explanation of the rationale behind this ‘‘government employee’’ exception to free speech rights (Alexander and Alexander, 2005). They write (p. 721):

Governmental agencies (or school districts) are charged by law with the responsibility for conducting governmental business. State agencies employ workers to perform assigned tasks as effectively and efficiently as possible. The precedent is well established that when an employee is paid a salary to work and contribute to an agency’s effective operation and thereafter begins to do or say things that detract from the agency’s effective operation, the government employer must have the power to prevent or restrain the employee from such acts or utterances.

The United States Supreme Court has decided a number of cases in which it has embedded this perspective into First Amendment free speech doctrine. This essay analyzes those cases pertaining to public school teachers and provides a thorough exposition of the carefully balanced and nuanced rules that they contain.

Historical Antecedents and General Principles

One of the earliest threats to the free speech interests of public school teachers were the loyalty oaths that many states imposed on government employees during the ‘‘red scare’’ and early ‘‘cold war’’ years of American history. Ever fearful of communist conspiracies to overthrow the U.S. government by force and violence—or by the more subtle and sinister means of indoctrinating American youth—public officials required that individuals occupying sensitive governmental positions swear that they were not affiliated with the Communist Party or any other subversive organization. Given their (presumed) ability to influence the impressionable young students in their charge, teachers were a prime target for such oaths.

However, the courts did not sit idly by and let state authorities run riot with loyalty oaths. For example, the Supreme Court intervened in several instances to protect teachers from oaths that failed the voidfor- vagueness doctrine of the Fifth and Fourteenth Amendments’ due process clauses (see Baggett v. Bullitt, 377 U.S. 360, 1964; Cramp v. Board of Public Instruction, 368 U.S. 278, 1961; Keyishian v. Board of Education, 385 U.S. 589, 1967). Due process requires that laws be written with that minimum level of clarity necessary to allow individuals to make reasonably accurate assessments about what is legally permissible behavior. Moreover, the minimum level of clarity is generally ratcheted up if the laws touch upon fundamental constitutional rights—such as freedom of speech. Vague laws have many problems, but one of their most commonly encountered criticisms is that they impart chilling effects on individuals contemplating the exercise of fundamental rights. For these reasons, among others, the Supreme Court declared several loyalty oath schemes to be unconstitutional during the mid-twentieth century.

The Court also required government officials to tailor loyalty oath policies so that only those individuals who presented true threats to the public were excluded from government employment. For example, in Weiman v. Updegraff (1952), the Court declared a loyalty oath unconstitutional because it did not draw a distinction between actively involved members of a subversive organization, who knew that the group advocated the overthrow of the nation by force and violence, from inactive members who did not know what the group advocated and did not possess the intent to accomplish the group’s subversive goals (also see Elfbrandt v. Russell, 384 U.S. 11, 1966). In contrast, the Court upheld loyalty oath programs that prohibited only knowing members of subversive organizations from serving as public school teachers (Adler v. Board of Education, 342 U.S. 485, 1952). The loyalty oath involved in Adler, however, was subsequently reconsidered and declared unconstitutional because it was unduly vague and did not limit its reach only to active members of subversive organizations who had the specific intent to overthrow the government (Keyishian v. Board of Education).

Even though the Supreme Court prevented school boards from imposing poorly designed loyalty oaths on teachers in some of the cases discussed earlier, it has never held that such oaths constitute per se violations of the Constitution. Moreover, the Court has long held the view that the administration of K through 12 public schools is something that should predominantly reside under the dominion of local authorities. Primary and secondary education is, for the most part, funded by local sources of revenue, and it has traditionally been a government service that residents of the community have structured to fit their needs. Indeed, few aspects of local politics have been more prominent, salient, and prone to conflict than those touching upon the education policy of communities.

The Supreme Court’s recognition of the nation’s long tradition of maintaining local control over the operation of K through 12 education has been clearly articulated in extant case law. The best statement— and the perspective employed today in cases involving K through 12 public education—can be found in Epperson v. Arkansas (393 U.S. 97, 1968). In Epperson, the Court declared unconstitutional a state law that prohibited teachers in any state-supported school (including colleges and universities) from teaching or assigning books on the theory that humans evolved from ‘‘lower order’’ animals. In announcing its decision, the Court explained:

Judicial interposition in the operation of the public school system of the Nation raises problems requiring care and restraint.... By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values.

Justice Black, concurring in Epperson, explained that ‘‘[h]owever wise this Court may be or may become hereafter, it is doubtful that, sitting in Washington, it can successfully supervise and censor the curriculum of every public school in every hamlet and city in the United States.’’ Thus, cases brought to the courts by K through 12 public school teachers challenging school board actions on the grounds that they damage their free speech rights will, all things being equal, face greater hurdles to their success than will other government employees bringing freespeech- based challenges against their employers.

This judicial deference toward K through 12 institutions is frequently visible in cases involving teachers who assert that their First Amendment rights were violated when school administrators imposed punishments on them for engaging—while they taught their classes—in some form of expressive activity that the administrators disapproved. For example, the Fourth Circuit Court of Appeals concluded that a teacher could be reprimanded (in this case transferred) because she sponsored the performance of a play that school authorities subsequently deemed inappropriate for her students (Boring v. Buncombe County Board of Education, 136 F.3d 364, 4th Cir., 1998). The majority in Boring explained:

Someone must fix the curriculum of any school, public or private. In the case of a public school, in our opinion, it is far better public policy, absent a valid statutory directive on the subject, that the makeup of the curriculum be entrusted to the local school authorities who are in some sense responsible, rather than to the teachers, who would be responsible only to the judges, had they a First Amendment right to participate in the makeup of the curriculum.

Similarly, in Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989), the fifth circuit held that a teacher could be dismissed because he failed to use an approved reading list in his high school history class. In short, courts have been unwilling to prevent school administrators from adopting a common curriculum or from punishing teachers who deviate from that curriculum while performing their teaching duties.

However, the First Circuit Court of Appeals has concluded that teachers are protected by the First Amendment when they employ teaching methods that they believe will best convey the approved curriculum. In Keefe v. Geanakos (1969), the first circuit concluded that a teacher could use an expletive as part of his classroom instruction because it was integrally related to the assigned reading (which had been selected by the teacher) and because the word could be found in several books in the school’s library.

Nevertheless, other courts have been careful not to overextend the degree to which the First Amendment protects teachers who employ controversial teaching methods (Mailloux v. Kiley, 323 F. Supp. 1387, D. Mass., 1971). Because children are required by law to attend school, judges have been sensitive to the argument that students constitute a captive audience that teachers should not have the right to exploit for their own ideological purposes (Mailloux v. Kiley). Although courts have expressed concern with efforts by school boards to ‘‘cast a pall of orthodoxy over the classroom’’ (Keyishian v. Board of Regents), they are equally concerned with similar attempts made by teachers. To the extent that the Supreme Court has weighed in on these issues, it has concluded that administrators may generally adopt school policies that are ‘‘reasonably related to legitimate pedagogical concerns’’ (Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 1988).

The Modern Approach

In Epperson, the Court declared the antievolution law unconstitutional because it was deemed to violate the Establishment Clause of the First Amendment. The Court did not reach the free speech issues that the case presented. That same year, however, the Court decided what is now widely considered the seminal case involving the scope of free speech rights of public school teachers: Pickering v. Board of Education (391 U.S. 563, 1968). Marvin Pickering was an Illinois school teacher who had sent a letter to a local newspaper that, in addition to containing some factual inaccuracies, was critical of the financial and budgetary decisions of his school district’s board of education and superintendent. The school board quickly dismissed Pickering and, at a subsequent hearing (required by state law), concluded that its decision was justifiable because his action was damaging to the smooth and efficient operation of the district’s schools.

In overturning the school board’s action, the Supreme Court concluded that teachers are, like other citizens, entitled to significant freedom from governmental regulation of their speech activities—even when the views expressed touch upon matters related to their employment. As the Court would note one year later, teachers—like students—do not forfeit their First Amendment rights when they enter the ‘‘schoolhouse gates’’ (Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 1969). Nevertheless, Justice Marshall, writing for the Court in Pickering, explained that First Amendment cases present unique issues when they involve the employment related speech of government employees:

[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

The Court concluded that Pickering’s letter to the newspaper addressed matters of abiding public concern. As such, the Court argued that the proper resolution of the matter would be to balance the free speech rights of Pickering against the school board’s interest in the efficient operation of the local public schools.

The Court argued that Pickering did not have a personal, intimate working relationship with the school board or the superintendent. Therefore, although his speech might have upset school administrators, it would not likely lead to the type of intra- or interoffice conflicts and disputes that could understandably hinder the efficient operation of the district’s schools. Pickering’s duties were in the classroom, not in the offices of the school board or superintendent. The outcome might have been different if Pickering had been a lower level policy-making administrator who worked directly for the board or the superintendent (see Wilbur v. Mahan, 3. F.3d 214, 7th Cir., 1993).

In addition, the Court rejected the school board’s argument that Pickering could be dismissed because several inaccuracies in his editorial were damaging to the integrity and reputations of the superintendent and members of the school board. The administrators argued that the damage to their public esteem would hinder their ability to govern the district’s schools effectively. The Court was not convinced and instead held that Pickering’s dismissal could only be justified if the district could demonstrate that he knew his statements were false or that he acted in reckless disregard of the truth (see New York Times v. Sullivan, 376 U.S. 254, 1964). Justice Marshall explained that the Court ‘‘unequivocally reject[s]’’ the idea that a teacher can be dismissed solely because he spoke publicly about a school-related matter of public concern in a manner that administrators considered too ‘‘critical in tone.’’

In its final analysis, the majority concluded that the free speech interests of Pickering substantially outweighed the administrative interests of the school district. Obviously, Pickering had significant interests (e.g., his job) that were threatened by the school board. But the Court also noted that the local community had a stake in giving Pickering ample latitude to express his views. Writing in Pickering, Justice Marshall explained that ‘‘[t]eachers are, as a class, the members of the community most likely to have informed and definite opinions as to how [schools should be run]. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.’’

In subsequent cases the Supreme Court expounded on the law pertaining to the free speech rights of teachers by addressing questions that were not directly considered in Pickering. One of the most important of these was its decision in Mt. Healthy City School District Board of Education v. Doyle (429 U.S. 274, 1977). In Mt. Healthy, a unanimous Court held that a public school teacher has the burden of proving two things when he claims that a school board has imposed negative consequences (e.g., dismissal, demotion, reprimands, etc.) on him because of his expressive acts. First, the teacher must demonstrate that his speech is constitutionally protected and, second, that it was a ‘‘substantial’’ or ‘‘motivating factor’’ in the school board’s decision to impose the negative consequences. If the teacher meets this burden, the school board must then be given the opportunity to demonstrate, based on the preponderance of the evidence, that it would have imposed the negative consequences on the teacher even if it had not included the teacher’s expressive activity in its decision calculus.

Thus, Mt. Healthy represents the Court’s conclusion that it is not enough simply to balance the free speech interests of the teacher against those of the school board. Instead, trial courts must engage in a systematic examination of the facts to determine whether the teacher’s speech was the ‘‘but for’’ cause of the school board’s actions. While the teacher has to show that his expression was a ‘‘motivating factor’’ in the school board’s decision to punish, the school board may be absolved if it can demonstrate that it did not constitute the motivating factor—the factor that, when added to the equation after all other factors had been incorporated, tipped the scale in favor of imposing negative consequences on the teacher. If the school board would have done what it did in the absence of the speech (i.e., the scale was tipped against the teacher before the speech factor was added to the equation), then there has not been a First Amendment violation.

One animating concern hovering over the Mt. Healthy Court’s deliberations was the possibility that, under the Pickering balancing approach, a marginal employee who fears dismissal (or some other negative consequence from school administrators) could—in an effort to inoculate himself or herself constitutionally from negative treatment by administrators— engage in expression pertaining to an issue of public concern that was likely to anger school authorities. In other words, such an employee could attempt to use the First Amendment as a shield to deflect deserved negative personnel actions. Chief Justice Rehnquist, writing in Mt. Healthy, explained:

A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct. But that same candidate ought not be able, by engaging in such conduct, to prevent his employer from assessing his performance record and reaching a decision not to rehire on the basis of that record, simply because the protected conduct makes the employer more certain of the correctness of its decision.

After Mt. Healthy the Court continued to clarify First Amendment law regarding free speech rights of public school teachers. Recall that in Pickering the Court had implied that teachers could bring First Amendment free speech challenges against their employers only if the teacher’s speech touched upon issues of public concern. In Connick v. Myers (461 U.S. 138, 1983) the Court delineated between speech acts of public employees that are of public concern and those that are of private concern. In this case five members of the Court upheld the dismissal of an assistant district attorney who distributed a questionnaire to other attorneys working in her office. The Court concluded that the questionnaire did not address questions of public concern, but instead was directed at assessing the internal affairs of the district attorney’s office. Because Connick’s superiors considered the questionnaire an act of insubordination bordering on a ‘‘mini-insurrection,’’ the Court concluded that her dismissal was legitimate.

The majority in Connick explained that, to be considered of public concern, a public employee’s speech must address something other than internal office disputes, conflicts, and other matters of employment that are predominantly of a personal nature. Justice White, writing for the majority, offered the following summary of the Court’s conclusion:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.

The standard announced in Connick has general applicability to all free speech cases involving public employees. Therefore, the decision is of immediate relevance to the free speech rights of teachers (see Seemuller v. Fairfax County School Board, 878 F.2d 1578, 4th Cir., 1989; Stroman v. Colleton County School District, 981 F.2d 152, 4th Cir., 1993). It is clear, then, that after Connick the following four-part sequence should be followed in cases involving public school teachers who allege that they suffered adverse consequences at the hands of school administrators upset by their expressive acts (see Daniels v. Quinn, 801 F.2d 687, 4th Cir., 1986):

The teacher must demonstrate that the speech is of public concern (Connick) and that it is protected by the First Amendment (Mt. Healthy).

The teacher must demonstrate that the speech act was a ‘‘substantial’’ or ‘‘motivating factor’’ in the administration’s decision to treat the teacher in an adverse manner (Mt. Healthy).

The school board must be given the opportunity to demonstrate, based on the preponderance of the evidence, that the teacher’s speech act was not the ‘‘but for’’ cause of the negative consequences imposed on the teacher by the school board (Mt. Healthy). (If the school is successful at this stage in the four-part sequence, then there has not been a First Amendment violation and the court should rule in favor of the school board.)

If the school board is unsuccessful in step three, then (and only then) the court should employ the Pickering Balancing Test. As such, it should ask whether the free speech interests of the public school teacher outweigh the administrative interests of the school’s administration. The court should rule in favor of that party whose interests are most weighty.

MARK KEMPER

References and Further Reading

• Alexander, Kern, and M. David Alexander. American Public School Law. 6th ed. Belmont, CA: Thomson West Publishing, 2005.

Cases and Statutes Cited

• Adler v. Board Education, 342 U.S. 485 (1952)
• Baggett v. Bullitt, 377 U.S. 360 (1964)
• Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998)
• Connick v. Myers, 461 U.S. 138 (1983)
• Cramp v. Board of Public Instruction, 368 U.S. 278 (1961)
• Daniels v. Quinn, 801 F.2d 687 (4th Cir. 1986)
• Elfbrandt v. Russell, 384 U.S. 11 (1966)
• Epperson v. Arkansas, 393 U.S. 97 (1968)
• Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988)
• Keyishian v. Board of Education, 385 U.S. 589 (1967)
• Kirkland v. Northside Independent School District, 890 F.2d 794 (5th Cir. 1989)
• Mailloux v. Kiley, 323 F. Supp. 1387 (D. Mass. 1971)
• Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)
• New York Times v. Sullivan, 376 U.S. 254 (1964)
• Pickering v. Board of Education, 391 U.S. 563 (1968)
• Seemuller v. Fairfax County School Board, 878 F.2d 1578 (4th Cir. 1989)
• Stroman v. Colleton County School District, 981 F.2d 152 (4th Cir. 1993)
• Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969)
• Wilbur v. Mahan, 3. F.3d 214 (7th Cir. 1993)