First Amendment Issues Part 1

1. First Amendment Issues Part 1

2. What Can School Officials Say And Do? 1st Amendment Issues In Schools Randall C. Farmer, Esq.

3. What Can School Officials Say And Do? 1st Amendment Issues In Schools

4. Overview • Public Employee Free Speech Issues •What is aMatter of public concern • Political Activities • Religious Activity • Internet Speech

5. Pop Quiz • Can a public employee be disciplined for speaking out on a matter of public concern? • Can teachers or administrators express their personal religious beliefs in the classroom school or at work? • Can employees engage in unionizing activity during work hours? • Can a public employee be disciplined for speech on the internet?

6. 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.

7. Translation • First Amendment applies a prohibition on Congress • Prohibition is extended to states and local governments, e.g., school districts, through the 14th Amendment • Prohibition impacts four areas of civic life: religion, speech/press, association, and petition government

8. Starting Point For Free Speech: Garcetti v. Ceballos • Supreme Court case decided in 2006 • Generally, two-part rule: 􀂄 Was the employee’s speech on a “matter of public concern”? 􀂄 If not, there is no cause of action in the First Amendment

9. Garcetti Continued ● If the speech is on a “matter of public concern”, then… • Does the government entity have good cause for treating the employee differently from any other member of the general public ● This becomes a balancing test – the employee’s right to speak against the government’s concerns regarding the workplace, etc.

10. Background on Garcetti • Ceballos worked for the DA and reviewed the affidavit and determined that the affidavit contained serious misrepresentations from the sheriff’s deputies • Ceballos relayed his concerns about the affidavit to his supervisors via a memo and recommended dismissal of the case • Called as a witness by defense about his review of the affidavit • Ceballos reassigned to a trial deputy position, then transferred to another courthouse, and denied a promotion • Brought First Amendment Claim

11. Problem With First Amendment • Clear as mud • Rarely any black letter law • Dealing with shades of gray • Difficult for administrators to know when an employee is speaking as a private citizen or pursuant to job duties • Cannot predict what a judge is going to do • Scale: more an employee has discretion, responsibility and visibility, e.g., superintendent or high level administrators, less likely person will be seen as a private citizen. Actions associated with position

12. Three Categories of Speech • Speech as an Employee – Not protected: “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes . . . .” • Speech on Matters that are NOT of public concern – Not Protected: “If a school employee does not speak on a matter of public concern . . . The employee has no First Amendment cause of action . . . “ • Speech as a citizen on matters of public concern – Sometimes Protected: If the employee “speaks as a citizen on a matter of public concern” then there is the possibility of a First Amendment claim. The employer must show that it had an adequate justification for treating the employee differently from any other employee.

13. SO WHEN IS AN EMPLOYEE NOT A PRIVATE CITIZEN? WHAT IS A MATTER OF PUBLIC CONCERN?

14. What is NOT a matter of public concern generally? • Look at job duties and context of speech • Speech related to performance of employee’s job duties, e.g., internal office disputes • Classroom speech; no academic freedom and no right to stray from curriculum. Most courts rule that teachers do not have the right to trump mandated curriculum, e.g., no right to show R rated movie

15. Examples Green v. Barrett, 2007 U.S. App. LEXIS 6200*8 (11th Cir. 2007) (No First Amendment protection for testimony provided by Chief Jailer regarding jail conditions); Morris v. Crow, 142 F. 3d 1379, 1381, 1382 (11th Cir. 1998) (“The mere fact that Morris’ statements were made in the context of a civil deposition cannot transform them into constitutionally protected speech.”); Dennis v. Putnam County Bd. of Educ., 260 Fed. Appx. 171 *3 (11th Cir. 2007) (statements regarding budget to county commissioner made pursuant to duties as school district’s fiscal officer were not protected); Vila v. Padron, 484 F.3d 1334, 1340 (11th Cir. 2007) (No claim for retaliation under the First Amendment for the Vice President of External Affairs who held a policy making position and objected to certain improprieties in the community college’s financial dealings); Abdur-Raham v. Walker, 2008 U.S. Dist. LEXIS 25349 * 20 (N.D. Ga. 2008) (No First Amendment retaliation claim permitted when employees learned of the problems while performing their job responsibilities.); Miller v. Houston Co. Bd. of Educ., 2008 U.S. Dist. LEXIS 19394 *36 (M.D. Ala. 2008) (No First Amendment retaliation claim when student teacher made complaints about IEPs pursuant to her official duties.)