Your Speech and Your Job

Attention PSEA members! Make sure you think carefully about what you say in the classroom. Recent court cases have imposed limits on First Amendment protection for what you say during your workday.

In a recent case, 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”), their speech is not protected by the First Amendment and can result in discipline or discharge. This type of speech is not protected even if the employees are communicating corruption or wrongdoing to their superiors. 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” may include an educator writing a letter to a newspaper as a private citizen expressing an opinion about a matter of public interest. Discussions of politics with co-workers outside of work may also be considered protected speech.

While it’s clear that the Supreme Court has determined that public elementary and secondary school teachers do not have First Amendment protections in their job-related speech, the Court in the Garcetti case explained that this newly established rule may not apply to higher education faculty duties of teaching and research, and declined to rule on that issue in this case.
Two other recent decisions following Garcetti show the impact of the Supreme Court’s ruling. In the first case, a 2007 decision from an Indiana federal court, 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 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. The court upheld the school district’s action, explaining that the teacher’s classroom speech was not protected under the First Amendment. Based on the Garcetti case, 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 second post-Garcetti decision, 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 in this case spoke out during classroom instruction 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 only covering topics directly related to the curriculum.

In light of these cases, it is clear that K-12 teachers and other public school employees do not have First Amendment protection for their job-related speech. They may, however, be protected under their collective bargaining agreement or under other laws. For example, the United States Supreme Court recently decided that public employees are protected against retaliation under Title VII of the Civil Rights Act of 1964 when answering questions about sexual harassment during their employer’s investigation of a colleague’s complaints.

As job-related speech is not protected under the First Amendment for public employees, PSEA advises members working in schools to think carefully about what they say in the classroom and when they perform other job-related duties.

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

If you have questions or concerns about First Amendment limitations or if you need information about protections you may have under the Collective Bargaining Agreement or other laws, contact your UniServ representative.