The Contours of First Amendment Free Speech Rights: Students, Faculty & School Officials

THE CONTOURS OF FIRST AMENDMENT FREE SPEECH RIGHTS: STUDENTS, FACULTY & SCHOOL OFFICIALS

- Prepared By –

Jay Worona, Esq. Deputy Executive Director and General Counsel, New York State School Boards Association & David S. Shaw, Esq., Partner Shaw Perelson May & Lambert, LLP

the 2018 Summer Law Conference of the New York State School Boards Association Latham, N.Y. July 24, 2018

INTRODUCTION

The school shooting tragedy that struck the Marjory Stoneman Douglas High School in

Parkland Florida sparked a mass of student protests decrying the countless number of students

and faculty members who continue to be victims of school shootings in our nation. School

districts were not monolithic in their reactions to such student protests. Some decided to support

the students by working in concert with them to develop plans for how such protest activities

would transpire. Other districts took no part in the protests but excused the students from

receiving any disciplinary consequences for their behavior of walking out of school in

contravention to their Student Codes of Conduct. Still other districts determined that students

who participated in such protests would receive disciplinary consequences for their actions

fearing that if the students were excused from such consequences, districts would have to also

excuse student hate groups from being held accountable for any protests that they might wish to

engage in in the future.

This flurry of First Amendment Free Speech related activities has led school attorneys to

dust off their Tinker, Guiles, Pickering and Garcetti files to review the boundaries and contours

of protected versus actionable speech. This presentation will bring focus upon the developments

in the law that inform school attorneys in counseling clients regarding how speech may be reined

in, not only to protect potential victims, but, also to ensure a positive public image for their school districts.

As a general premise, students attending public schools and teachers and administrators employed in public schools are entitled to the rights described in the United States Constitution and the State Constitution. So too are school board members when speaking as citizens.

The First Amendment free speech protection of the United States Constitution has been

the subject of a myriad of litigations involving "pure speech", which refers to the spoken word,

the written word and "symbolic speech", which refers to the manner of dress and the wearing of

insignias or buttons.

Within the context of student free speech cases, the focal issues are whether or not the

speech may be restrained and, in an after-the- fact situation, whether or not a student may be disciplined upon the grounds of insubordination to the school authorities for conduct which endangers the safety, morals or welfare of those in our schools.

Commonly, teacher free speech cases arise in the context of tenure review or discipline

for alleged insubordination for speech regarding political issues, employment and school

program related matters.

School Board member speech cases usually involve violating executive session

confidentiality, exercising unauthorized powers and speaking to partisan issues in their official

capacities. Occasionally, indecent speech has given rise to the sanction of removal from office.

THE FIRST AMENDMENT

Congress shall make no law respecting an establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the government for a redress of grievances.

CASE LAW ANALYSIS

Starting with student First Amendment free speech precedent cases, the springboard and landmark case is Tinker v. Des Moines Independent Community School District, 393 U.S. 503,

89 S.Ct. 733, 21 L.Ed. 2d 731 (1969) wherein the United States Supreme Court recognized that

First Amendment rights extend to students by stating:

"First Amendment rights, applied in light of the special circumstances of the school environment, are available to teachers and students. It can hardly be argued that either teachers or students shed their constitutional rights to freedom of speech or expression at the school house gatehouse."

The Supreme Court in Tinker, supra, went on to set forth a test to be applied regarding the prohibition of speech without violating the constitutional rights of the student [or teacher]:

"In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly, where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained." (Citing Burnside v. Byars, 363 F. 2d. at 749)

The Tinker case involved symbolic speech where several students were suspended from school for wearing black arm bands in protest of the Vietnam War while on school grounds. The

Supreme Court determined that no substantial disruption occurred as a result of donning the black arm bands. The Court issued an injunction against prohibiting the students from wearing the arm bands. Thus, political symbolic speech was afforded broad protection under the First

Amendment Free Speech Clause.

Most of the post-Tinker litigations have focused on balancing the First Amendment free

speech right recognized in favor of students and the limitation, expressed by the Court, that such

rights are limited “in light of the special characteristics of the school environment."

STUDENT PUBLICATIONS

The First Amendment right of the student press is subject to limitation by regulation of

the time, place and manner of the distribution of publications. Censorship of such publications is

limited to the obscene, libelous or that which will cause a substantial disruption of school

activities. Restraint of the student press may also be exercised when school officials have reason

to believe that the publication may result in harmful consequences to students.

In Thomas v. Board of Education, 607 F. 2d 1043 (2nd Cir. 1979), however, the Second

Circuit Court of Appeals ruled that the school officials had no authority to discipline students for

an “uncensored, vulgar, and immoral” publication produced and distributed off school promises

because it did not contain a threat of material or substantial disruption to the school. The Court

noted that the publication’s connection with the school was “de minimus” in that it was neither produced or distributed at school.

On the other hand, in Hazelwood School District v. Kuhlmeier, 484 US 260 (1988), the

Court upheld the District’s restriction of the dissemination of a school sponsored-curriculum

based newspaper. These publications, the Court stated, are subject to greater regulation than

other student speech.

The newspaper was written by students in the journalism class and could be censored for

reasons related to legitimate pedagogical concerns (i.e.: grammar, protecting privacy rights (of a

pregnant student); inappropriateness (sexual activity article) for audience (younger students);

balanced reporting by seeking both viewpoints on an issue (student critical of father in a divorce

situation).

Here, the newspaper carries the School District’s imprimatur.

The Second Circuit held in, R.O. ex rel. Ochshorn v. Ithaca City School Dist., 645 F3d

533 (2nd Cir. 2011), that students who wished to publish a cartoon in the student-run newspaper of stick-figures in various sexual positions were reasonably prohibited from doing so.

The Second Circuit cited both the Bethel v. Frazer, 106 S. Ct. 3159 (1986) (discussed

below) and the Hazelwood (484 US at 271) standards in holding that District personnel

reasonably restricted the speech. It held that not only was it lewd, but it also bore the imprimatur

of the school and so could be censored so long as the restriction was reasonably related to

pedagogical concerns.

In Eisner v. Stanford Board of Education, 440 F.2d 803 (2d. Cir. 1971) the Court

reviewed a School District’s use of prior restraint regulations in restricting the dissemination of student publications on a public high school campus. The school’s regulations stated:

"The Board of Education desires to encourage freedom of expression and creativity by its students subject to the following limitation: no person shall distribute any printed or written matter on the grounds of any school or in any school building unless the distribution of such material shall have prior approval of the school administration.

In granting or denying approval, the following guidelines shall apply:

No material shall be distributed which, either by its content or by the manner of distribution itself, will interfere with the proper and orderly operation and discipline of the school, will cause violence or disorder, or will constitute an invasion of the rights of others."

The Second Circuit found this policy to be neither vague nor overly broad yet held that the regulation was constitutionally defective because of its failure to provide a procedure for prior submission before distribution. In order for a prior restraint regulation to be valid, the

Court noted that the regulations must:

1. Prescribe a definite brief period within which review of submitted materials would be complete.

2. Specify to whom and how materials should be submitted for clearance.

3. Define the term "distributing".

4. Only impose prior restraint when the written material in question is to be substantially distributed.

Other Court cases indicate that a school's policy or regulation should also (a) define terms such as libelous, obscene; (b) specify the effect of failure of the school authorities to act promptly; and (c) provide an adequate and prompt appeals procedure.

In another Second Circuit case, Bayer v. Kinzler, 383 F. Supp. 1164 (N.Y. 1974), aff'd.

515 F. 2d 504 (2d Circ. 1975), the Court found no reasonable basis for interfering with a high school newspaper which dealt specifically with contraception and abortion in a factual and serious tone (see also Gambino v. Fairfax County School Board, 429 F. Supp. 731 aff'd. 564 F.

2d 157 [4th Cir. 1977]).

In yet another Second Circuit case, Trachtman v. Anker, 563 F. 2d 512 (2d Cir. 1977)

Cert. Den. 98 U.S. 925 (1978), a New York School District was allowed to restrain the distribution of a sex questionnaire to high school grade students. The Court noted that the burden is upon the school officials to demonstrate that there was reasonable cause to believe that distribution of the questionnaire would have caused significant psychological harm to some of

6 the students. The Court ruled that the school officials were reasonably competent to make this sort of determination and that because it was their reasonable belief that the distribution could cause harm to the high school grade students, 9th through 12th, distribution could be restrained.

The Second Circuit Court of Appeals has ruled that restraint may be exercised even in the absence of written regulations. In Frasca v. Andrews, 463 F. 2d 1043 (2d. Cir. 1979), the Court acknowledged:

"The power of school officials in a proper case to prevent distribution within the school of material which is libelous, obscene, disruptive of school activities, or likely to create substantial disorder, or which invades the rights of others, does not disappear merely because the school board has failed to adopt written policies requiring review in advance of publication."1

The Fourth Circuit Court of Appeals upheld a school rule prohibiting the distribution of materials which encouraged actions which endangered the health and safety of students when an underground newspaper was impounded shortly after distribution was commenced based upon advertisements therein promoting drug paraphernalia. In Williams v. Spencer, 622 F. 2d. 1200

(4th Cir. 1980) the Court determined that a reasonably intelligent high school student should know that an ad promoting sale of drug paraphernalia encourages actions that endangers health or safety of students. Thus, the Court noted that substantial disruption of the educative process is only one reason for prior restraint and not the sole reason. The Court also found that since the

1 In considering restraint of free speech matters, school authorities may rely upon the rule established in the United States Supreme Court in Chaplinsky v. New Hampshire, 315 US 568, 571, 62 S.Ct. 766, 768, 86 L.Ed. 1031 (1942) in which the court determined that:

"Well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane."

7 advertisement was commercial in nature, it was entitled to less First Amendment protection than pure speech.

CENSORSHIP OF LIBRARY BOOKS

In Island Trees UFSD v. Pico, 102 S. Ct. 2799 (1982), the Supreme Court recognized a right in the school community to receive ideas contained in school library books which were already placed on the shelf by the school district. Thus, the book removal process is subject to constitutional law strictures. Permissible removal criteria would include the educational suitability, good taste, relevance and age/grade level appropriateness of the literature.

STUDENT PRODUCTIONS

A school board's decision to halt a student production of the play, "Runaways", based upon the belief that the play was inappropriate for the students to perform and the school community to view was upheld by the Federal District Court in Vermont in Bell v. U-32 Board of Education 630 F. Supp. 939 (D. Vt. 1986). In this case, the text of the play remained available at the school library.

In another student production case, a federal court in Ohio struck down the school board's decision to halt production of the play, "Sorcerer", because it allegedly glorified cowardice, denigrated patriotism and disparaged the aged. Thus, in Bowman v. Bethel-Tate Board of

Education, 610 F. Supp. 577 (D.C. Ohio 1985), such action was deemed to be an unconstitutional attempt to prescribe an orthodoxy of ideas.

STUDENT ASSEMBLIES

The United States Supreme Court in Bethel School District No. 403 v. Fraser, 106 S. Ct.

3159 (1986), upheld the suspension of a student who gave a nominating speech at a high school

assembly which was laced with sexual innuendos. The Court viewed the suspension as being a

proper response to vulgar or indecent speech:

"I know a man who is firm - he is firm in his pants, he's firm in his shirt, his character is firm - but most of all, his belief in you, the students of Bethel is firm. J.K. is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts - he drives hard, pushing and pushing until finally - he succeeds. J. is a man who will go to the very end - even the climax for each and every one of you. So vote for J. for ASB. Vice- President. He'll never come between you and the best our high school can be."

The Supreme Court further ruled in Morse v. Frederick, 127 S. Ct 2618 (2007) that public school officials may restrict student speech at a school event when the speech is reasonably

viewed as promoting illegal drug use.

The case arose when students at Juneau-Douglas High School in Alaska were released to watch the Olympic torch pass by the school at an event that was school-sanctioned and supervised, but not required. Student Joe Frederick and some other individuals held up a banner across the street from the school that read “BONG HITS 4 JESUS.” Principal Deborah Morse directed them to take down the banner, which she confiscated, and then suspended Joe.

While the Court rejected the District’s argument that the school should have been able to suppress the speech because it was “plainly offensive” under Fraser, the Court stated, instead, that “in light of the special characteristics of the school environment” the Principal’s actions were reasonable because she reasonably interpreted the banner as conveying a “pro-drug

message.”

STUDENT POSTERS, MESSAGES ON CLOTHING, AND OTHER SYMBOLIC SPEECH:

In Kotmel v. Dowd (W.D.N.Y. October 3, 1986 and December 31, 1986), a New York

Federal Court held against a school district which disciplined a student who placed a poster on

the wall which stated in part "this means war". The Court determined that the words were not

"fighting words" nor lewd or offensive in the nature of the words used in the Fraser case. There

was no evidence which would lead school officials to forecast substantial disruption.

In Guiles v. Marineau, 461 F.3d 320 (2nd Cir. 2006), the Second Circuit Court of

Appeals ruled that a school district violated the free speech rights of a 7th grade student who was

disciplined for wearing a tee shirt depicting George W. Bush as the “Chicken-Hawk-In-Chief.

Bush’s helmeted head was superimposed on the body of a chicken, and he was surrounded by oil

rigs, dollar symbols, and cocaine. The shirt said, “world domination tour”, “crook”, “cocaine

addict”, “AWOL draft dodger”, and “lying drunk driver.”

Though the tee shirt evoked discussion in school, it did not cause any disruptions or rights inside or outside school. The District nevertheless prohibited the student from wearing the shirt because it depicted drugs, alcohol, violence, and obscenity.

The Second Circuit opined that any analysis of student speech should begin with an

application of the Tinker test. In applying Tinker, the Court held that Guiles had a First

Amendment right to wear the shirt at school because there was no material disruption or confrontation at the school.

Additionally the Court explained that neither Hazelwood nor Fraser applied. Hazelwood

was not dispositive because the tee shirt was not school-sponsored speech. As for Fraser, the

Court applied it narrowly, stating that Fraser permits the censorship of ‘lewd’, ‘vulgar’,

‘indecent’, or ‘plainly offensive’ speech. It defined lewd, vulgar, or indecent speech as containing sexual innuendo or profanity, and it defined plainly offensive speech as “less than” obscene but “related to” sexually-charged or profane language. Here, the tee shirt contained neither profanity nor sexual innuendo, and so Fraser did not apply.

Defabio v. East Hampton UFSD, 623 F3d 71 (2nd Cir. 2010): A Hispanic student was killed in an accident on a Friday, and plaintiff was attributed with saying, “one down, 40,000 more to go.” An assembly of students screamed at plaintiff and gathered en masse. He received threats and phone messages. Plaintiff alleged that he never said that. Administration sent him home for his own safety, and then suspended him. Plaintiff wrote a letter expressing his innocence and asked to read it over the public address system. The District prohibited him from doing so. Plaintiff then asked if the District would read it for him over the public address system, but they refused.

The Court held that the administration was entitled to qualified immunity, and that its refusal to permit the student to either read his letter or have it read was reasonable because it reasonably could have caused a disruption in school.

Cuff v. Valley Central SD, 677 F3d 109 (2nd Cir 2012): A Fifth grade student drew in crayon a picture of an astronaut who wanted to “blow up the school with the teachers in it.”

Previously, the student had drawn a picture in 4th grade of a “big wind that destroyed every school in America” and killed all the adults and left the children alive. The student said at a meeting that he was only kidding. The District imposed a 6 day suspension for the astronaut drawing.

The Second Circuit applied Tinker and Wisniewski (494 F.3d 34) (discussed below), and determined that it was reasonably foreseeable that the threat would cause a disruption. The Court

11 noted that the inquiry is an objective one: it focuses on the reasonableness of the administrator’s response, and not on the intent of the student. Therefore, the fact that this 5th Grade student as not actually capable of carrying out his wish, or that he was only “kidding” was irrelevant.

The Commissioner of Education has also spoken on this issue:

In Appeal of Parsons, 33 Ed. Dept. Rep. 672, Decision No. 12,592 (1993), the

Commissioner of Education ruled that, under the Fraser test, a student suspended after bearing a

Big Johnson tee shirt portraying phallic symbols and speech constituting sexual metaphors was justified. The decision is still good law after Guiles.

OFF-CAMPUS SPEECH

It has long been held by the Commissioner of Education that a school district may discipline students for off-campus misconduct. In Matter of Rodriguez, 8 Ed. Dept. Rep. 214,

Decision No. 8015 (June 17, 1969), the Commissioner opined:

“The mere fact that such conduct occurs or such condition exists outside the school situation or the school official-pupil relationship does not preclude the possibility that such conduct or condition may adversely affect the educative process or endanger the health, safety, or morals of pupils within the education system for which the school authorities are responsible. The school authorities are in the best position to determine whether the education system for which they are responsible has been or could be so affected, and their determination will not be upset absent some showing that they have abused their discretion in making it.”

In Wisniewski v. Board of Education, 494 F.3d 34 (2nd Cir. 2007), a public school student used an instant messaging program to communicate with fellow students from his home computer. Each IM he sent was accompanied by an icon showing a person being shot which read, “Kill Mr. VanderMolen.” Eventually, school personnel were made aware of the icon, and it caused a disturbance. There was a criminal investigation, and Mr. VanderMolen asked to be removed from the student’s class. Citing Tinker, the Second Circuit held that “the fact that . . . the IM icon occurred away from school property does not . . . insulate [the student] from discipline” because it reasonably posed a foreseeable risk that it would materially and substantially cause a disruption in the school.

In its decision, the Second Circuit explained the various elements involved in the

application of the Tinker test. Four in total, any one of them would allow prohibition and

discipline of student speech. They apply to speech that:

1. Would substantially interfere with the work of the school; or

2. Would cause material and substantial interference with school work or discipline; or

3. Would materially and substantially disrupt the work and discipline of the school or;

4. Might reasonably have led school authorities to forecast substantial disruption of or

material interference with school activities.

Doninger v. Niehoff, 642 F. 3d 334 (2nd Cir. 2011): The student claimed the Principal and

Superintendent of Schools violated her First Amendment rights when they prohibited her from

running for class office. She had created a blog post from her home during non-school hours that

referred to administrators as “douchebags”. The blog urged students to take action to “piss off” administration because they cancelled a school event, “JamFest”. The blog comment created a deluge of phone calls to administration, and severely disrupted class schedules.

The Court held that school administrators properly may prohibit student expression that

will “materially and substantially disrupt the work and discipline of the school” and in this case,

such a disruption existed. Importantly, however, the Court stated that:

“The question is not whether there has been an actual disruption, but whether school officials ‘might reasonably portent disruption’ from the student expression at issue.”

It also bears noting that the Court expressly declined to reach the question of whether school

officials violated the student’s First Amendment rights by imposing the penalty of preventing her

from running for Secretary, rather than a suspension. “We see no need to decide this question”

because “any First Amendment right allegedly violated here was not clearly established” and

thus, school officials were entitled to qualified immunity.

The Commissioner of Education has also addressed off-campus speech issues:

In Appeal of Ravick, 40 Ed. Dept. Rep 262, Decision No. 14,477 (Oct. 2000), the

Commissioner of Education ruled that a school district properly suspended a student who e-

mailed an offensive message from his home computer to other students’ home computers. The e-

mail depicted Adolf Hitler holding a swastika flag, made anti-Semitic references, and stated that

the “Trench Coat Mafia” – a reference to the Columbine High School Incident in Colorado --

would be coming to their school the following Monday. The Commissioner ruled that school officials reasonably interpreted the e-mail as a threat to student safety which would substantially disrupt school operations.

In Appeal of G.I., 50 Ed Dept. Rep., Decision No. 16,121 (2010), an elementary student,

K.I., along with a friend posted on student C.H.’s Facebook page certain inappropriate statements

that led to a threatened fist fight between C.H. and K.I. that would take place at recess. The

principal sanctioned K.I. with a one-day in-school suspension. The petitioner challenged the discipline based upon the fact that the altercation never took place and that the Facebook posting

transpired outside of school. The petitioner also criticized the investigation that led to

cyberbullying charges.

The appeal was dismissed based upon the fact that the sanction was an in-school suspension and did not require the due process rigor of an out-of-school suspension. Without directly addressing the issue, implicitly the Commissioner recognized this to be an incident of sanctionable off-campus cyberspace misconduct.

STUDENT PROTESTS RELATED TO THE PARKLAND FLORIDA SCHOOL SHOOTING

This past year, students across the nation, in response to the school shooting at Marjory

Stoneman High School in Parkland, Florida began a political movement which caught the attention of the entire nation. The students asserted their strong belief that the continuation of the loss of life for students and faculty members in our nation’s schools due to school shootings was totally unacceptable. The “solution” they advocated was a ban on assault weapons and gun control in general. The students organized protests that were scheduled to take place during the school day on two specific times and dates. Some school district officials wished to embrace the student’s message and thus planned activities along with the students during the school day to demonstrate their support for the student’s political activism and purpose. Other school officials, decided to permit the students to protest on their own and not to impose any disciplinary consequences against them for their act of walking out of school. Still other school district officials decided to impose disciplinary penalties embedded in their Student Code of Conduct for their act of disrupting the educational process of the school by walking out of school fearing, that in the absence of doing so, the district would be required to provide all other students with this same accommodation, notwithstanding whether other forms of student speech was hateful in nature.

In recognition of the significant constitutional issues that this student movement presented for school districts, affecting students and staff, the Legal Department of the New

York State School Boards Association developed and forwarded to the field, a Legal Alert: http://nyssba.activehosted.com/index.php?action=social&chash=52cf49fea5ff66588408852f65cf8272.277

8&s=fe4eceb5d642f055c5971219d2249eb4. A review of this document will provide school districts with an analysis of the consequences for

16 of any course of action they decide to take in response to student political expression of this nature. Given the likelihood that this student movement will be continuing for some time, school districts would be wise to craft policies and enact practices consistent with both community values and constitutional principles.

TEACHERS’ AND ADMINISTRATORS’ FREE SPEECH RIGHTS

Public employees including teachers in our public schools have a constitutionally protected right to speak “as citizens” on “matters of public concern.” School authorities may impose reasonable restrictions on the time, place and manner of speeches by public school teachers or administrators and may even control the content of the speech where it significantly threatens the efficient operation of the schools; for example, by undermining a close working relationship between a supervisor and subordinate, or by substantially disrupting harmony among co-workers.

The following materials will address a variety of issues, all more or less falling into one of three general concepts: the scope of protection of public employee speech (the “public concern” question); the Mount Healthy “but-for” causation rule applying to First Amendment retaliation claims; and the realities of life in the Second Circuit. The materials will also briefly review the distinctive rules and principles that may apply when the speaker is a school board member.

DEFINING MATTERS OF PUBLIC CONCERN:

In defining matters of public concern, we speak primarily of issues of a political, social or community interest.

In the leading case in this area, Pickering v. Board of Education, 391 U.S. 563 (1968), a school board's action in dismissing a teacher was determined to be unconstitutional where the 17 same was based upon the teacher publishing, in a local newspaper, a letter in which the teacher criticized the school board's handling of a bond issue proposal and its allocation of funds from the school system's educational and athletic programs. Since the subject matter of the writing was a matter of public interest, discipline or dismissal could not constitutionally follow.

On the other hand, even where a teacher’s or administrator’s speech is on a matter of public concern, a school district may have latitude to impose discipline or even terminate if it reasonably predicts disruption as a result of the speech.

In 1983 the United States Supreme Court ruled that a public employee whose speech was related to internal office matters having no bearing on any issue of political, social or community concern could be disciplined for insubordinate conduct without First Amendment protection. In

Connick v. Myers, 461 U.S. 138, 75 L. Ed. 2d 708 (1983) an assistant district attorney who was disgruntled about certain office policies and practices, including a decision to transfer her to another position, composed a questionnaire which was distributed during work hours. The questionnaire inquired into employees’ views regarding the office transfer policy, office morale, the need for a grievance committee and the level of confidence in the supervisors. The questionnaire also asked whether or not the co-workers felt pressured to work in political campaigns. The employee was fired in part on the grounds of insubordination for distributing the questionnaire. The Supreme Court upheld the dismissal finding that the plaintiff's speech concerned matters of personal rather than public interest, with the possible exception of her question concerning involvement in political campaigns; that overall the speech did not deserve

First Amendment protection; and that the DA reasonably believed the plaintiff's distribution of the questionnaire would "disrupt the office, undermine his authority, and destroy close working relationships". In the case of Renfrow v. Kirpatrick, denied certiorari by the United Stated

Supreme Court, 722 F. 2d 714 (11th Cir. 1984) cert. den. 105 S. Ct. 98 (1984), a school district's

failure to place a non-tenured teacher into a full-time teaching position following the teacher's

filing of a grievance seeking a full-time position was found not to result in a First Amendment

claim. Considering the matter of entitlement to a full-time position as not being a matter of

public concern, the Court also dismissed the Plaintiff's argument that an oral presentation made

by her to the school board during which she said that her objection to job-sharing was partially

motivated by concern for the welfare of her students, was "not sufficient" to bring her grievance

within the rubric of matters of "public concern".

In Waters v. Churchill, 511 US 661 (1994), a public hospital fired a nurse in the

hospital’s obstetrics department based upon an internal investigatory report for criticizing the

hospital’s cross-training policy and the staffing policy of the hospital’s V.P. of Nursing. The

nurse also complained to co-workers about her department and supervisor. She discouraged a second nurse from transferring to the O.B. Department. The Supreme Court held that the nurse’s speech, as reported, would have been unprotected by the First Amendment as potentially disruptive. The Court warned, however, that a careful investigation is warranted before adverse

employment action may be taken.

In Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1995), the Second Circuit expressly

recognized that actual disruption need not be demonstrated, as long as the prediction of

disruption of the educational environment is reasonable. Because the concepts of “disruption”

and “reasonable prediction” have not been defined with any precision, school districts should

proceed with extreme caution when reacting to otherwise-protected speech based on such a

prediction of disruption. In fact, such reactions should probably rarely be contemplated at all,

unless the potential disruption has actually occurred and consists of more than simple

disagreements among students or employees of the district.

In another United States Supreme Court case, Givhan v. Western Line Consolidated

School District, 439 U.S. 410 (1979), a teacher's dismissal was held to be in violation of the

Constitution even though based upon remarks made to a principal in private where the teacher's

comments were characterized as "insulting", "hostile", "loud", and "arrogant". In that case, the

teacher's comments were directed towards school policies which the teacher believed to be

racially discriminatory. Thus, the First Amendment protects not only a public communication of

ideas of public concern, but also a private communication between an employee and a

supervisor.

In other cases, the courts have set aside the involuntary transfer of assistant coaches after

participating in a public debate criticizing the use of corporal punishment by the head football

coach (Bowman v. Pulaski, 723 F. 2d 640 [8th Cir. 1983]); the non-renewal of a community

college instructor who criticized administration for its unwillingness to adapt course offerings

and class schedules to meet perceived student needs (Daulton v. Affledt, 678 F. 2d 487 [4th Cir.

1982]); and a teacher who recommended that students seek legal advice about suspension from college (Stern v. Shouldice, 706 F. 2d 742 [6th Cir.] Cert. den., 104 S. Ct. 487 [1983]).

In a case denied certiorari by the United States Supreme Court, Ballard v. Blount, 581 F.

Supp. 160 (N.D.Ga.), aff'd 734 F. 2d 1480, cert. den. 105 S. Ct. 590 (1984), a state university

professor's complaint regarding denial of tenure to a colleague, manner of assignment of courses,

his individual salary increase, and a proposed course syllabus did not involve matters of public

concern.

More recently, in Storman v. NYC Dept. of Educ., 395 Fed Appx 790 (2nd Cir. 2010), a

guidance counselor alleged that the District retaliated against him for bringing a due process

claim against the District. The teacher alleged that he was denied due process after he was rated

“unsatisfactory”, and thereafter became ineligible for summer school work and extra income. In

his First Amendment claim, the teacher alleged that the District retaliated against him in diminishing his income and retirement benefits, and that it damaged his reputation. The Second

Circuit held that the due process law suit was not protected speech because it was entirely

personal, and thus was not a matter of public concern.

In Nagle v. Marron and Fried, Individually and Mamaroneck UFSD, 663 F.3d 100 (2nd

Cir. 2011), Nagle, a special education teacher, claimed that she was denied tenure because she

reported to her union president that a principal had forged her signature on an evaluation. The

Second Circuit held that the report did not pertain to a matter of public concern because it had

“no practical significance to the general public.” Notably, the Second Circuit distinguished it

from a situation where Nagle was reporting an ongoing pattern of misbehavior on the part of the

principal. In that case, it might have risen to the level of a matter of public concern.

In other Federal District Court cases matters of public concern were not found where

there were grievances concerning advance notice due in connection with layoffs, class

assignments, hiring of coaches to teach social studies, and mandatory training programs that

conflicted with vacation plans.

In Day v. South Park Independent School District, 768 F. 2d 696 (5th Cir. 1985), a

probationary teacher who wrote letters primarily concerning her principal's negative evaluation

of her performance was found not to have a First Amendment claim when her contract of

employment was non-renewed.

DEFINING ‘CITIZEN SPEECH’ VERSUS ‘PUBLIC EMPLOYEE SPEECH’:

Since the United States Supreme Court decision in Garcetti v. Ceballos, 126 S. Ct 1951

(2006), the Second Circuit Court of Appeals has developed case law wherein public employees’

First Amendment claims are dismissed based upon the determination that the employee was

speaking “as an employee”, rather than “as a citizen.”

In Garcetti, (126 S. Ct. 1951), a Deputy District Attorney wrote an internal office

memorandum explaining that a case should not be pursued because he had reason to believe that

a police officer’s affidavit (which served as the basis for a critical warrant) contained factual

inaccuracies. The DA was transferred to a different court, and denied a promotion.

The U.S. Supreme Court held that if a court determined that a plaintiff either did not

speak as a citizen or did not speak on a matter of public concern, the employee has no First

Amendment cause of action based on her employer’s reaction to the speech. The Court

explained that public employees speak as employees – and not as citizens – when they “make statements pursuant to their official duties.” The inquiry is whether the action is “part-and-parcel of [the employee’s] concerns about [his/her] ability to properly execute [her] duties.” The action need not be part of the employees’ job description to be a “job duty.”

In Weintraub v. Bd. of Educ. of City Sch. Dist. of City of NY, 593 F.3d 196 (2nd Cir.

2010), an elementary teacher was terminated after complaining to District administration that a

student should have been suspended for throwing a book at him. After the student was not

suspended, the employee filed a formal grievance. The Second Circuit held that Weintraub’s

complaining and filing of the grievance was in furtherance of one of his “core duties” as a public

22 school teacher, and thus, he was speaking as an employee and not as a “citizen.” The court did not address whether this was a matter of public concern.

In Massaro v. NYS Dept. of Educ., 2012 WL 1948772 (2nd Cir. 2012), the plaintiff, an art teacher, claimed that her First Amendment rights were violated after the District cancelled one of her classes and changed her schedule. She had verbally complained to school administrators, submitted documentation to the Department of Education, and submitted an

Injury/Accident report that she was working in an unsanitary working environment and had contracted scabies from her classroom.

The Second Circuit held that this was employee-related speech (she was not speaking as a citizen). The Court relied on the fact that there was no “relevant citizen analogue” to an

Incident/Accident Report, or a report to the Department of Education. Furthermore, her verbal comments to the administration directly related to her ability to continue to teach. Thus, she was speaking as an employee and not as a citizen. As in Weintraub, the Court did not reach the question of whether the speech was a matter of public concern because it was determined not to be citizen speech.

In Berlyavsky v. New York City Department of Environmental Conservation, 671 Fed.

Appx. 836 (2d Cir. 2016), the plaintiff was responsible for water sampling as part of his job responsibilities and reported alleged sampling violations that he claimed to be First Amendment speech protected. In applying the Garcetti analysis regarding employee First Amendment speech, the court noted that, while the matter raised was one of public concern, the speech was as a result of his role as a public employee – thus not First Amendment protected.

In Matthews v. City of New York, 779 F.3d 167 (2d. Cir. 2015), a police officer was disciplined for raising a complaint with his supervisors that a quota system implemented in the

precinct for stops, arrests and summonses was inconsistent with the core mission of the department to improve community relations and claimed that such discipline was in retaliation for exercising his First Amendment rights. An analysis of the officer’s job duties revealed that it was not a job duty of the employee to report about the use of a quota system. The subject of the police officer’s speech was acknowledged by the defendants to be a matter of public concern.

The controverted issue was whether or not the speech should have been considered unprotected employee speech or citizen speech entitled to First Amendment protection.

Of the employee’s twenty listed job duties “… none includes a duty to provide feedback on precinct policy or any other policy related duty.” The court noted that the police officer’s complaint was not through a grievance, but, rather, by using the same complaint mechanism available to members of the public, “Matthew’s chose a path that was available to ordinary citizens who are regularly provided the opportunity to raise issues with the Precinct commanders.”

The Second Circuit reversed the District Court’s decision, finding that the police officer’s speech constituted citizen speech subject to First Amendment protection.

The Commissioner of Education cited Garcetti in, Appeal of Stephenson, 51 Ed. Dept.

Rep., Decision No. 16,329 (February 9, 2012). In that case, a probationary social studies teacher

contested her termination after she was terminated for speaking to another teacher’s class about

the integrity of the school and the removal of their teacher. The Commissioner noted that a board of education has the unfettered right to terminate a probationary teacher for any reason unless the employee establishes that he/she was terminated for a constitutionally impermissible reason. Citing Garcetti, the Commissioner stated:

“Here, petitioner made comments regarding the grades of students in her building and the academic integrity of the school, during class time, to students in her school. Accordingly, this speech was not the speech of a citizen for the purposes of First Amendment analysis and is therefore not entitled to constitutional protection.”

Notwithstanding the limitations on employee speech ushered in by the recognition that

matters of public concern learned about during the performance of job duties will not have first

amendment protection, New York has two statutory provisions that protect employee speech for

exposing governmental wrongdoing in general (§75-b Civil Service Law) and specific to fiscal

malfeasance (§3028-d Education Law).

FALSE AND THREATENING SPEECH

Where a teacher makes statements that he knew or reasonably should have known were

false and it can be shown that these statements have had a harmful effect on school operations,

the speech will not be protected by the First Amendment.

In Gilbertson v. McAllister, 403 F. Supp. 1 (D. Conn. 1975), a teacher's dismissal was

upheld where the teacher had circulated allegedly false and inflammatory material about her

principal. One of the leaflets claim that the principal imposed a "CIA style reign of terror" at the

school, illegally suspended or expelled 100 students and used "military riot-control gas" against demonstrating students when in another school system. In rejecting the teacher's First

Amendment claim, the Court found that her statements were false and made in reckless disregard for the truth and that their impact on the operation of the school was "immediate and harmful".

In Pickering vs. Board of Education, 391 U.S. 563 (1968) in criticizing the school board's

policy on allocating funds and handling a bond issue, the teacher-plaintiff made false statements

which the Board claimed damaged the reputations of its members and the school administration

and would be disruptive of faculty discipline tending to foment controversy, conflict and

dissention among teachers, administrators, the board and the residences of the district. While

recognizing that some of the teacher's statements had been false, the Supreme Court noted that

there was no proof that the teacher knew or should have known of their falsehood. Further, the

Court added that the teacher's letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. Under the circumstances the Court found no basis for withholding First Amendment protection.

In Megill v. Board of Regents, 541 F. 2d 1073 (5th Cir. 1976) the Court upheld the denial

of tenure to a state university professor who made public statements that he either knew or

should have known were false.

SPEECH IN THE CLASSROOM

A teacher may not use the classroom as a forum for promoting his or her personal

political views. In Ahern v. Board of Education, 327 F. Supp. 1391 (D. Neb. 1971) aff'd. 456 F.

2d 399 [8th Cir. 1972], the Court held that a teacher was properly disciplined for teaching

politics in her economics class. The teacher had expressed her own criticisms of the school

administration and her co-workers in the classroom.

In Harris v. Mechanicville CSD, 45 N.Y.2d 279 (1978), a teacher was properly

disciplined for teaching J.D. Salinger’s “Catcher in the Rye” in direct contradiction of his

voluntary agreement with the principal not to teach the book. However, the Court of Appeals

highlighted that the teacher was not disciplined for teaching an unacceptable work of literature,

but was instead charged with insubordination for violating his agreement with the principal not

to teach it.

LIMITATIONS ON DISTRIBUTING WRITTEN SPEECH

The United States Supreme Court in Perry Education Association v. Local Educators

Association, 460 U.S. 37 (1983) noted that a teacher's mailbox is not a form for public

communication and may be limited in the types of communications to those of official school

business or a union with bargained for exclusive rights for the use of the intra-school mail

system. Thus, school authorities may practice prior restraint over materials which are proposed

for distribution through the school mail system.

However, once union access is established, restraint of union publications cannot be

based upon disagreements over the writer's views of board policy, and there must be a timely

review procedure regarding a superintendent's decision with respect to distribution.

CHAIN OF COMMAND CASES

The Courts have held that when an employee’s communication includes speech protected

by the First Amendment, the employee cannot be disciplined for ignoring the chain of command

in presenting the communications, even if they also embrace matters of personal interest.

Anderson v. Central Point School District No. 6, 746 F. 2d 505 (9th Cir. 1984). However, if the

communication is wholly concerned with matters of the employee’s personal interest, “chain of

command” policies can be enforced. Knapp v. Whitaker, 577 F. Supp. 1265 (C.D.Ill. 1983).

MIXED MOTIVE DISCIPLINE CASES

In defending discipline in light of a First Amendment free speech claim set forth by a

teacher, school authorities may rely upon the “but-for” or “mixed motive” analysis set forth by the U.S. Supreme Court in Mount Healthy City School District Board of Education v. Doyle, 429

U.S. 274 (1977). In that case, even though the Court held a teacher had shown his First

Amendment conduct was a motivating factor in his non-renewal, he could not recover if the school board showed it would have reached the same decision even absent his protected conduct.

At times the Second Circuit has applied this standard so broadly that it has suggested a

school district may escape liability even if it was wholly motivated by retaliation for First

Amendment-protected speech, as long as, from an objective standpoint, it would have taken the

same action(s) based on non-protected misconduct. Thus, in Adler v. Pataki, 185 F.3d 35 (2d

Cir. 1999), a public employee claimed he was discharged because of protected speech by his

wife. The Second Circuit pointed out that the Mount Healthy defense would still be viable even

if the plaintiff showed his wife’s speech was the sole motivation for the challenged actions:

“Even if Adler can prove that his discharge was motivated entirely . . . as a retaliation for his wife’s lawsuit, the State is entitled to present the affirmative defense of dual motivation.” Id. at

47.

INFERRING RETALIATION FROM TIMING

This presentation is primarily concerned with the different kinds of speech that may enjoy First Amendment protection in the school district context, and an in-depth examination of the proof needed to establish retaliatory causation is beyond its scope. However, a few brief words on the connection between timing and causation are worthwhile here.

The courts generally draw upon precedent developed in Title VII and other employment- context retaliation cases for the basic principles governing First Amendment retaliation against teachers and school administrators. Where temporal proximity is the basis for a retaliation claim

– that is, where a teacher or administrator claims that an exercise of speech was followed by an adverse employment action, and therefore it must be that the adverse action was in retaliation for

28 the speech – the speech and the action must be relatively close in time. The Supreme Court in

Clark County School District v. Breeden, 532 U.S. 268, 121 S.Ct. 1508 (2001), suggested that generally the temporal connection must be on the order of two to three months.

Further, some cases, such as Slattery v. Swiss Reinsurance America, 248 F.3d 87 (2d Cir.

2001), indicate that where a course of misconduct leads to an accelerating series of disciplinary actions, toward the end of which the employee engages in protected activity and then claims the subsequent (and usually final) disciplinary actions are retaliation, no inference of retaliatory motive is to be drawn simply from the temporal sequence.

In reviewing this case law, school districts should be mindful that policy development is critical and must be modernized to take into account recent precedent involving the implications of technology, the expanded school universe, and diminished employee free speech rights.

FACULTY FREE SPEECH RIGHTS RELATED TO STUDENT PROTESTS

In light of the fact that faculty members may wish to express their support for student protests over school violence that have occurred and are likely to continue to occur for some time, school districts would be wise to predict such occurrences and enact policies and practices in comportment with constitutional free speech jurisprudence principles. In short, while on the job, faculty members do not enjoy an inherent right to join students in protesting and/or in taking political positions on important social issues of the day. The case law cited above in this outline lays out well the established law in this area.

BOARD MEMBER SPEECH

Free speech cases involving elected officials such as school board members present their

own unique set of issues. Notably, such officials are in many senses not “employees” – or at

least not the kind of public employees contemplated by some of the decisions referenced above –

and this calls into question whether many of the concepts developed in the public employee free

speech context apply at all. Further, because part of the very purpose of an elected official is to

articulate and promote his or her own view of proper policies and conduct of a governmental

entity, often in defiance of other elected officials’ viewpoints, there may be less leeway to argue

that the “disruptive” nature of his or her speech is grounds to restrain or punish same. Notably,

in Velez v. Levy, 401 F.3d 75 (2d Cir. 2005), the Second Circuit refused to apply to a school

board member the “policymaker” exception that would have allowed action to be taken against

him for espousing views on policy at variance with the official position of the school district. It

found that exception was limited to policymaking staffers, who served at the sufferance of the

policymaker and whose employment was solely for the purpose of executing the policies he or

she chose, and did not apply to the policymaker him- or herself.

The United States Supreme Court has had opportunity to rule on the free speech rights of

elected officials in different contexts. In Bond v. Floyd, 385 US 116 (1966), the Court

considered whether the Georgia House of Representatives could exclude an elected

Representative based upon statements he made and subscribed to criticizing the policy of the

federal government in Vietnam and the operation of the Selective Service laws. Bond was prohibited by the legislature from taking the oath of office based upon the statements. The Court reviewed whether Bond’s disqualification violated the free speech provisions of the First

Amendment as applied to the States through the Fourteenth Amendment. The Court rejected the

State’s argument that even though a private citizen might be protected by First Amendment

rights, the State may apply a stricter standard to its legislatures; it ruled that the disqualification

of Bond from membership was a violation of his right of free expression under the First

Amendment.

In Republican Party of Minnesota v. White, 536 US 765 (2002), the Supreme Court

reviewed a canon of judicial conduct of the Minnesota Supreme Court which prohibited judicial

candidates from announcing their views on disputed legal or political amendments. A candidate

running for associate justice, as well as others, sought a declaration that the “announce clause”

violated the First Amendment. In a split decision, the Court opined that “the notion that the

special context of electioneering justifies an abridgment of the right to speak out on disputed

issues sets our First Amendment jurisprudence on its head.” (Id. at p. 781). The Court applied a

strict scrutiny test and found that the restriction was not narrowly tailored. Citing to previous

decisions the Court stated:

“[D]ebate on the qualifications of candidates” is “at the core of our electoral process and of the First Amendment freedoms,” not at the edges. Eu, 489 U.S., at 222-223, 109 S.Ct. 1013 (internal quotation marks omitted.) “The role that elected officials play in our society makes it all the more imperative that they may be allowed freely to express themselves on matter of current public importance.” Wood v. Georgia, 370 U.S. 375, 395, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962).

Id. at p. 781-782. The majority concluded by finding that the canon of judicial conduct prohibiting candidates for judicial positions from announcing their views on disputed legal and political issues violated the First Amendment.

The Commissioner of Education has addressed the issue of the expression of

controversial and offensive personal views by board of education members. In Appeal of

Wallace, Dec. No. 15,529 (2007), the Commissioner discussed advocacy by board members and

held that “individual board members are entitled to express their personal views about issues

concerning the district and engage in partisan activity, provided school district resources are not

used.” The Commissioner reminded board members who wish to express their personal views to

“clearly distinguish their personal views from those of the board they represent” (i.e., a board

member should not identify himself/herself as a member of the board in materials expressing his

or her personal views).

In Appeal of Gill, Decision 14,785 (2002) the Commissioner upheld the removal from

the Board of Education of a member who, during the polling of the board members regarding a

date for a board retreat, commented, “No. We ain’t going nowhere with these niggers.” He also addressed a member of the public at a board meeting by calling him “an uneducated Negro” and admitted that he had called this citizen “much worse” than “an uneducated Negro.” The

Commissioner held that it is imperative for board members to treat their colleagues with dignity and respect and not engage in behavior that impacts upon the board’s ability to carry out its responsibilities, and therefore the removal from the board of that member pursuant to a board hearing under §1709(18) of the Education Law was justified.

As a final note of interest, there is some question whether school board members can face suit for seeking the removal of a fellow board member via petition to the Commissioner of

Education. Because such removal is governed by the Education Law, and the final determination is committed to the discretion of the Commissioner of Education, it is the Commissioner who

“commits” the removal. The Second Circuit in Velez (a case briefly discussed above)

confronted a situation in which members of a school board in New York City lacked authority to remove a fellow board member, but brought the circumstances justifying his removal to the attention of the New York City Chancellor of Education, who did have the power to remove the

32 board member – and exercised it. As the Second Circuit stated, “though the actions of the board member defendants undoubtedly set into motion Velez's ouster, those actions cannot . . . support a First Amendment retaliation claim.” Velez, supra at 99. This was because the fellow board members, in seeking Velez’s “ouster,” were themselves exercising First Amendment rights in a way peculiarly important to a democratic form of government: they were speaking as officials elected to speak for the people who elected them, on issues of policy and governance within their purview. The Second Circuit ruled that the plaintiff’s sole recourse on his First Amendment claim was against the Chancellor herself, who actually decided and implemented the plaintiff’s removal.

By analogy, where school board members seek the removal of a fellow board member by petition to the State Commissioner of Education under Sections 306 and 310 of the Education

Law, they should not face First Amendment liability based on the removal itself or the filing of the petition. Whether other actions taken by them contemporaneously with the removal process may form a basis for liability is still an open question.

BOARD MEMBER DUTY OF CONFIDENTIALITY

The Commissioner has made rulings regarding the limitations upon board member speech when it involves confidential information that is lawfully presented in executive session.

The statutory provisions at issue are Section 805-a of the General Municipal Law and Section

105 of the Public Officers Law.

In Application of Nett & Raby, 45 Ed. Dept. Rep. 259 [2005]), the Commissioner placed board members on notice that breach of confidentiality regarding a matter that legitimately may be discussed in executive session could result in the board member’s removal from the Board.

Unlike the definition of confidentiality previously announced by the Committee on Open

Government in its advisory opinion letters, the Commissioner will hold Board members accountable for maintaining as confidential information intended to be kept secret that is a proper subject for executive session, a broader definition than those matters made confidential by

Section 805-a of the General Municipal Law.

The Commissioner opined that only a quorum vote of the Board can remove the protection afforded to lawful speech exchanges in executive session:

In the course of their duties, school board members are required to discuss and debate difficult and sensitive issues, including matters involving employee discipline, collective bargaining tactics and litigation strategies.

The law specifically recognizes the delicacy of these matters by permitting them to be discussed in private (see Public Officers Law §105). The purpose of this exception to the open meetings rule is to enable public officers to deliberate freely and speak frankly in ways they might not if these discussions were held in full public view.

Several months before issuing the Nett & Raby decision, the Commissioner in Appeal of

Hoefer, 45 Ed. Dept. Rep. 66 (2005) upheld the removal of a board member for violating that district’s Ethics Policy and for disclosing the district’s salary proposal from collective bargaining negotiations.

Many modern School District Codes of Ethics extend the confidentiality restriction to matters included in the Board packet that would qualify under the executive session confidentiality test. There is every reason to believe that the Commissioner would uphold the

Superintendent (who under law has the right to address all matters that come before the Board)

34 that involve matters which may be confidentially discussed in executive session. Such Codes of

Ethics cite such violations as actionable official misconduct.

As the Commissioner stated in Nett & Raby:

A Board member who chooses to divulge information that the board as a collective body properly decided to discuss in confidence...effectively thwarted the will of the majority and invalidated its action as a corporate body. Such conduct is contrary to the basic principles of school board governance.

In a cases subject to analysis under Nett & Raby, supra, the Commissioner of Education in Appeal of Paladino, Decision No. 17,147 (2017), upheld the decision of a board of education to terminate the service of a board member who was found to have willfully revealed confidential information about labor negotiations that was discussed within the confines of a duly convened board of education executive session.