Right to Speak Out: Extracurricular Speech by Public Employees

Some principals will threaten to fire teachers or staff members who criticize the administration, school board or school. Student media advisers, for example, frequently have questions about how much support they can give their students as they wage a battle against administrative censorship or wonder if they have the right to speak openly to outside media when contacted for comment on such matters. It is a long-established principle that public employees have a constitutionally-protected right to speak out. The Supreme Court’s ruling in Pickering v. Board of Education specifically addresses the point for public school teachers: A teacher may speak out on a “matter of public concern” as long as that speech does not “substantially disrupt the efficient performance of the public school service she renders.”^[5] More recent cases have affirmed this decision.

Sometimes, the distinction between “public” and “private” speech is fairly easy to see. For example, employee complaints made in public about office policy and related matters are generally not protected.^[6] In one case, for example, a South Carolina school teacher was discharged after he circulated a letter to other teachers complaining about a payroll change, criticizing the district for “budgetary mismanagement” and calling for a “sick-out” during finals.^[7] The court held that the “essential thrust” of his letter was a private grievance, and stated that “Personal grievances, complaints about conditions of employment, or expressions about other matters of personal interest do not constitute speech about matters of public concern that are protected by the First Amendment, but are matters more immediately concerned with the self-interest of the speaker as employee.”^[8]

At other times, however, the public/private speech distinction can be difficult to navigate, and often matters that seem like they ought to be public speech are not. In Johnsen v. Independent School District, a school nurse spoke out against the district’s medication policy, arguing that allowing a nurse to dispense prescription and non-prescription drugs with only parental permission violated Oklahoma law. Afraid of losing both her job and her nursing license, she gathered a great deal of information in support of her position from outside agencies. She also filed a formal complaint with the district and spoke at a school board hearing discussing the proposed changes to the medication policy. After the hearing, the policy was revised to address most of the nurse’s concerns. At the next meeting, the board voted not to renew the nurse’s contract, which she alleged was in retaliation for speaking out. She filed suit. A federal court of appeals held that while the medication policy and its impact on children was a matter of public concern, it was not constitutionally protected because her speech “disrupted the operation of the school system, undermined the administration’s authority, and impaired the working relationships of the health services.”^[9]

In contrast, in Luethje v. The Peavine School District of Adair County, a different federal appeals court ruled in favor of Margaret Luethje, a public school cafeteria worker who complained about unsanitary cafeteria practices – including serving spoiled food to children – and the school’s refusal to address the issue. She complained to the principal, school board, and state and county health departments. The school board then adopted a policy forbidding cafeteria workers from complaining to individuals outside the school. Luethje filed suit, alleging her First Amendment rights were violated. The school board rescinded the policy, and Luethje withdrew the suit. In a later suit awarding attorney’s fees, the court said, “Plaintiff's complaints about unsanitary practices in the school's cafeteria and the administration's refusal to address them clearly dealt with matters of public concern.”^[10]

Many other cases also address this issue of public and private speech.^[11] However, even in situations where the expression is public speech by a public employee, it can be very difficult to prove that that public speech was the major motivating factor for punishment or dismissal, as discussed below.

The Right to Control Curriculum

To what extent, if any, does the First Amendment give student media advisers the right to determine the content or method of their teaching? Whether it is defined as a right of “academic freedom” or something else, courts are struggling in their attempt to decide how much control both secondary school teachers and university professors have over what goes on in their own classrooms. For example, does a high school adviser — feeling it is the most educationally appropriate way to teach journalism — have the right to insist on a student-only edited newspaper or to require advance approval of a student yearbook before it goes to the printer? Or does the First Amendment prohibit college administrators from punishing a journalism professor for disobeying a directive and encouraging her students to file freedom of information requests to obtain public records from university officials? Unfortunately, as the following discussion suggests, clear answers to such questions can be difficult to come by.

Academic Freedom

While most people have heard of “academic freedom,” there is little agreement — either among courts or commentators — about precisely what it is, who it protects or where it comes from.^[12] The Supreme Court has never clearly defined the scope of the right of academic freedom, though it has on more than one occasion indicated that expressive activity in the academic setting deserves special constitutional protection.^[13]

Lower courts have been more specific, but frequently at odds with one another in their attempts to clarify what is meant by academic freedom.

At the college level, most courts have recognized at least some loosely defined right of academic freedom, but increasingly individual professors are having a tough time convincing courts that such a right protects their decisions to determine their own curriculum or teaching methods.^[14]

For high school teachers the situation is considerably bleaker, with most courts rejecting teachers’ claims that they have a First Amendment-based right of academic freedom to determine what they teach in their classrooms.^[15] But there are exceptions. For example, a Colorado appellate court held that school officials could not refuse to renew the contract of Judith Watson, a middle school student newspaper adviser, if their only reason for doing so was that that Watson: (1) allowed her students to publish articles that the principal felt “portrayed the school in a negative light,” (2) refused to retract the articles and (3) advised her students in the newspaper class of their right to refuse to retract them.^[16] Watson’s actions, the court ruled, were protected by the First Amendment:

“Academic freedom is within the protections of the First Amendment...This includes a teacher’s interest in choosing a particular pedagogical method for a course, so long as the course is part of the school’s official curriculum and the teaching method serves a demonstrable educational purpose... [Watson’s] class, ‘School Newspaper,’ was part of the school’s official curriculum, and it was the plaintiff’s responsibility to teach her students about the legal concepts applicable to journalism. Accordingly, her conduct was constitutionally protected.”^[17]

While a more thorough discussion of the right of academic freedom is beyond the scope of this article, several sources of additional information are available.^[18]

Other First Amendment Protection

In addition to — or as part of an academic freedom analysis — courts have frequently used two other approaches to analyze teacher classroom speech cases.

Public/Private speech approach

Some courts have looked to Pickering’s public/private speech standard, discussed above in the context of extracurricular teacher speech, to determine whether a teacher’s in-class speech is protected. Under this approach, a teacher’s classroom speech about a matter of public concern is protected; speech about a matter of private concern is not. Unfortunately, courts have had little success settling on a uniform test for determining which type of speech is which.

One group of courts apparently thinks the test is easy. Under their analysis, teachers in the classroom setting are first and foremost employees and questions about curriculum are simple employment disputes that are never matters of public concern. These courts reject all notions of academic freedom for public high school teachers and have made clear that individual teachers’ decisions about curriculum are never protected by the First Amendment.^[19] The U.S. Court of Appeals for the Fourth Circuit (which covers professors in Maryland, North Carolina, South Carolina, West Virginia, and Virginia) has applied a similar test to the speech of college professors^[20].

Other courts applying the public/private speech test have relied on a much broader definition of what constitutes a matter of public concern. For example, in Cockrel v. Shelby County School District, a federal court of appeals explicitly ruled that matters of public concern are those that can “be fairly considered as relating to any matter of political, social or other concern to the community.”^[21] Applying such a standard, the court found that school officials had violated the First Amendment rights of a Kentucky elementary school teacher when they fired her for allowing actor Woody Harrelson to give a controversial talk to her class about industrial hemp as an alternative to cutting down trees, despite her principal having pre-approved the actor’s visit. The court held that the “discussion of industrial hemp plainly meets the broad concept of ‘public concern’ as defined by the Supreme Court... The key question is not whether a person is speaking in his role as an employee or citizen, but whether the employee’s speech in fact touches on matters of public concern.”

Hazelwood approach

Other courts have ignored the public/private speech test and have instead turned to the Supreme Court’s standard in Hazelwood School District v. Kuhlmeier.^[22] While Hazelwood specifically addressed the First Amendment rights of students working on a school-sponsored newspaper, a number of courts have seen fit to apply the standard to the school-sponsored speech of teachers as well. Under this approach, a teacher’s classroom speech is protected by the First Amendment unless school officials can show that they have a legitimate pedagogical (educational) interest in restricting the speech. Unfortunately — just as has been the case for student speech — such a vague standard provides little protection in practice and teachers have had a difficult time convincing courts that administrative regulation or punishment of their in-class speech was unlawful. For example, a federal appellate court had little trouble concluding that school officials acted lawfully in disciplining a Colorado high school teacher for his classroom criticism of two unnamed students for “making out” on a tennis court.^[23] The court concluded that the school’s asserted interest in preventing the teacher from spreading unsubstantiated rumors and in ensuring that “teacher employees exhibit professionalism and sound judgment” were legitimate educational interests that justified the school’s punishment.

While most Hazelwood-based teacher speech cases have involved secondary school teachers, at least one court has applied Hazelwood to the classroom speech of a college professor. The court readily acknowledged that it had serious reservations about whether a high school-based censorship standard was appropriate in the context of a college classroom and it refused to “decide definitively...hether [Hazelwood] does in fact govern a public college or university’s control over the classroom speech of a professor or other instructor.”^[24]

Contract-based academic freedom

While most high school teachers, and even some college professors, may have a tough time arguing that they have a First Amendment-based right of “academic freedom,” such protection can be found in other sources. Most college — and many high school — faculty members have a contract or letter of appointment that spells out, with varying degrees of specificity, the faculty member’s terms and conditions of employment. Often such documents make reference to more detailed policies, rules or procedures that are found in a faculty handbook, union agreement or other outside document. These documents frequently contain provisions relating to faculty academic freedom^[25] and are sometimes held to be legally binding contracts.^[26] In some states, provisions in a state law or state constitution may be relevant as well.^[27]

Even if a faculty handbook, union agreement or state tenure law, for example, does not contain explicit language forbidding administrators from punishing or removing an adviser based on her work with student media, such agreements frequently set up specific rules, or a process, for how such disciplinary measures can be meted out. Where administrators fail to comply with the rules, an adviser may find some relief by filing a “due process” complaint.^[28] For example, an agreement may require that an administrator provide written notice to a newspaper adviser 90 days before failing to renew his or her contract or it may require that the school provide the teacher with a hearing, perhaps with the opportunity to have a lawyer or union representative present, before imposing any disciplinary measures. Veteran student media advisers in the Anchorage School District, for instance, are protected by a union agreement that requires that they be put on probation for one year prior to being removed from their position. Such a provision prevents hot-headed administrators from firing a qualified adviser because of complaints from disgruntled school officials or parents about published stories — an unfortunately common occurrence at many high schools.

An administrator’s failure to follow established rules often voids the punishment and can — at least temporarily — provide advisers a reprieve.

Miscellaneous Rights

In addition to some of the rights discussed above, courts have ruled that advisers may not be fired for assisting students with the publication of non-school-sponsored or “underground” newspapers.^[29] A 1976 decision by the New Jersey Supreme Court held that a college adviser could not be fired because of an editorial she wrote for the paper she advised.^[30] And a pre-Hazelwood decision suggested that a high school adviser could not be fired when the paper “upset” certain school board members, but upheld the dismissal when the adviser failed to prove that the offending content was the reason for the board’s decision.^[31]

What if it is a First Amendment firing?

In order to assert a First Amendment claim, an adviser must show that the speech was in fact protected. Unfortunately for advisers (and other public employees) that is not the end of it. Even if an adviser shows that he or she was punished for engaging in protected speech, he must still prove that the protected speech was a substantial and motivating factor in the punitive decision. The school then has a chance to rebut this and show that there are other legitimate grounds for the punishment even in the absence of the unconstitutional motives.^[32]

For example, in Nicholson v. Board of Education Torrance Unified School District, the adviser of a California high school paper claimed that he was put on probationary status for refusing to follow an administrative order to submit the paper to the principal for prior review. In this case, the court ruled that prior review request was not unconstitutional.^[33]

However, the court said, even if the prior review had been unconstitutional, Nicholson needed to show that the protected expression was a motivating factor in the punitive action against him. If he could do so, then the burden would shift back to the school to show that there were other legitimate grounds for the punishment. In the Nicholson case, the court found that the school board did have other legitimate reasons for the punitive action, including Nicholson’s failure to follow rules governing bookkeeping duties.

So even if Nicholson had been able to show that his speech was protected, he would have lost the case because there were other ground for his firing. The lesson of Nicholson is that it is imperative for advisers not to give administrators other legitimate grounds for punishment. Advisers who are consistently late for class, do not turn grade reports in on time, or otherwise flout school regulations unrelated to First Amendment issues do not tend to win otherwise legitimate First Amendment firing cases.

In Others' Stead

In some cases, advisers may have the right to sue on behalf of their students when the students’ rights are violated. Students may often be reluctant or unable to sue, due to lack of parental support, community pressure, graduation or a host of other issues. In these situations, an adviser may have “standing” to sue when the student publication is censored.

The law is split on this issue. In Olson v. State Board for Community Colleges and Occupational Education, the Supreme Court of Colorado found that while the adviser herself had no constitutionally protected rights relating to censorship of the student newspaper, she was a proper third-party plaintiff and could continue the case on behalf of her students.^[34] Similarly, in Romano v. Harrington, the New York court allowed a high school newspaper adviser to file suit on behalf of his students for violation of their First Amendment rights, although the court rejected Romano’s claim that his own rights were violated when he was fired.^[35] In that case, the court noted that the law allows third-party standing more readily in First Amendment cases than others.^[36] Likewise, a 2001 Georgia case, Schmitt v. Prater, also dealt specifically with the third-party standing rights of a college newspaper adviser and found that the adviser did have standing.^[37] A Wyoming court held that “In cases like this where the rights of high school students to freedom of expression are at issue, teachers are often the only logical adult litigants” when it allowed an adviser to sue on behalf of her students.^[38] The 9th Circuit federal appeals court held similarly in Nicholson v. Board of Education Torrance Unified School District.^[39]

However, in a 1992 case, a Louisiana court found differently. Geraldine Moody, a social studies teacher, allowed her students to write a newspaper for class credit. The newspaper was entitled Your Side and was unrelated to the official school paper; the students undertook the project to learn more about the First Amendment’s guarantee of press freedom. The school administration felt Your Side contained inappropriate material, and were disturbed that the paper had been sold instead of distributed for free. Moody was transferred and reprimanded. She subsequently resigned. The court found that she did not have standing to sue on behalf of her students because she neither wrote nor edited the students’ publication, and because the students could have sued on their own behalf.^[40]

Another case to note is Cullen v. Gibson, where the 6th Circuit federal court of appeals held that a college adviser at Kentucky State University had no standing to sue because she had voluntarily resigned from KSU and thus rendered the case moot.^[41] Cullen sued both on her own behalf and that of her students’; the court found her entire suit to be moot.

Conclusion

Advisers have no easy task. They must teach their students responsible, incisive journalism – but doing so effectively can endanger the adviser’s job when school officials are unfriendly to a free press that covers the inadequacies of the school, the failings of the officials, or controversial topics that upset the community. The best solution is prevention: Make sure the relationships among you, the newspaper, and the school are clear. Have it put in your contract, if possible.

Advising is not easy, but it shapes the journalists of the future. As Chicago’s University High School publications adviser Wayne Brasler has said, “I find advisers are overworked, underpaid, underappreciated and overpressured. I am convinced God put us here to teach journalism and that’s why we do it, warts and all.”^[42]

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For some practical suggestions for advisers caught up — or trying to avoid being caught up — in a legal battle, see our SPLC Tip Sheet: A Student Media Adviser’s Guide to Fighting (and Surviving) Censorship.