Supreme Court limits K-12 educators’ free speech in the classroom

Attention PSEA members! Make sure you think carefully about what you say in the classroom and during work hours. Three recent court cases have imposed limits on First Amendment protection of your speech during your work day.

In Garcetti v. Ceballos (2006), the United States Supreme Court ruled that when public employees speak while performing their official duties, (i.e., “job duty speech”), this speech is not protected by the First Amendment and can be the basis for discipline or discharge.  The speech is not protected even if the employees are communicating to their superiors about corruption or wrongdoing. In reaching this decision, the Court reasoned that employers have an interest in controlling their employees’ professional speech because “official communications have official consequences.”

While job duty speech is not protected by the First Amendment for K-12 educators and public employees, speech may be protected when statements are made outside the course of an employee performing official duties (i.e., “citizen speech”).  Examples of “citizen speech” include when an educator writes a letter to a newspaper as a private citizen expressing opinion about a matter of public interest. Discussions of politics with co-workers outside of work are another example of protected speech. 

The Court also clarified that this newly established rule may not apply to higher education faculty performing their official duties of teaching and research, and held on that question for a later date. 

Two judicial decisions following Garcetti show the impact of the Supreme Court’s ruling.  In a 2007 Indiana federal court case, a student asked a probationary first-year teacher during a class discussion if she ever participated in a political demonstration. The teacher answered that she had honked her car horn as she passed by an anti-war demonstration during non-working hours, in which protesters held signs encouraging passersby to “Honk for Peace.”  Some parents called the school to complain, and her administrator advised all teachers to avoid taking political stances in the classroom.

The teacher’s contract was not renewed for a second year, and the teacher filed a lawsuit, claiming that the district had retaliated against her for exercising her constitutionally-protected right to free speech.  However, the courts agreed with the school district, holding that the teacher’s classroom speech was not constitutionally-protected. The courts ruled that a school district can restrict teachers from stating viewpoints or covering topics that do not involve district curriculum while performing official job duties.

In a 2007 Pennsylvania federal court case, a high school teacher sued her school district for violation of her First Amendment right to exercise free speech without retaliation.  The teacher spoke out during instructional time about the mold in her building and her related health problems and referenced a meeting with two school district administrators in which the administrators instructed her to teach only the curriculum and not to discuss her environmental concerns or health problems in class.  In her case, the court held that a school district can restrict teachers’ classroom speech to curriculum-related topics only.

In light of these cases, it is clear that K-12 teachers and other public school employees do not have First Amendment protection of speech in the course of their job-related duties. PSEA advises public school employees to think carefully about what they say in the classroom and during other job-related duties.

What may seem like a completely harmless remark about the recent election or involvement in a religious activity might be taken out of context by a student or that student’s parents. 

If you have questions or concerns about First Amendment limitations, contact your Uniserv representative.