First Amemdment Issues Part 2

1. First Amemdment Issues Part 2

2. Internet Speech • Internet provides another potential forum for public employees to speak. E.g., emails, blogs • Can the School District legally monitor internet activity? • When will School District monitor the activity? • How will School District notify employees of its intent to monitor internet activity? • Can the School District discipline the employee for the activity, i.e., First Amendment protection?

3. Lawful Access To Internet Site • Lawful access: Federal law limits access to electronic information. Employer can access public websites. If it is password protected, and employee using computer during school hours or with a school computer, can monitor the activity. • Can seek access to password protected site through someone who will cooperate with a password • Can ask the employee whether they made any improper posting

4. Is the Posting Protected? • National Labor Relations Act (NLRA) permits “concerted activity” by employees (whether they are in a union or not) to engage in activity regarding wages, hours and working conditions • NLRA prohibits retaliation • May have an issue of retaliation if employer monitors or comments on employee’s concerted activity in a chatroom or blog • First Amendment permits speech on a matter of public concern by a private citizen

5. Is the Posting Protected? Cont’d • Examples of Unprotected Speech: bickering with department heads, classroom assignments, responses to parent complaints, and evaluations. • Examples of Potentially protected speech: corruption, wastefulness, educational standards, discrimination.

6. If Speech Not A Matter of Public Concern, then what happens? • If not a matter of public concern or not a private citizen, then the speech does not receive any First Amendment protection • The Administration may discipline the teacher, including termination

7. What Is A Matter of Public Concern? • “any matter of political, social, or other concern to the community” • Quintessential example: Pickering case • Teacher who wrote letter to editor regarding a bond issue • Letter complained about how school board was spending money • Supreme Court stated that in this context the “interest of school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its limiting a similar contribution by any member of the general public”

8. Translation • The farther removed that the employee’s speech is from his/her job duties, the more likely it may be on a matter of public concern or speaking as a private citizen

9. Permissible Limits On Public Employee’s Speech • Need a legitimate business or educational reason to restrict speech • Need to maintain discipline and harmony in workforce • Need for confidentiality • Employee’s access to information make it difficult to counter • Statements hinder performance of duties • Unfounded statements question employee’s ability to do job • Close personal relationship of employee

10. Examples • Perry v. Sinderman 408 U.S. 592 (1972) Instructor publicly criticized junior college’s governing board at state legislature hearing. • Givhan v. Western Line Consolidated Dist. 439 U.S. 410 (1979). Teacher speaking out on racial issues at a PTA meeting • McAvey v. Orange-Ulster BOCES School social worker speaking to press about an alleged cover up of teacher on student harassment • Russo v. Stafford Board of Educ. Former school bus driver spoke out on mold issues in schools at school board meetings and in letters to editor • Generally speech relating to the safety of the public involves a matter of public concern or if the speech is directed outside of the workplace or outside of the employee’s chain of command

11. Factors That Court May Consider • Where does speech occur, e.g., in class regarding curriculum? School District may only need a legitimate educational reason • Does statement impair discipline by superiors • Does statement have a detrimental impact on a close working relationship where loyalty is important • Does speech interfere with the operation of the school

12. Is there an adverse employment action? • Don’t overact to an employee’s speech. Make any reassignments as appropriate based on business need • For an employment action to be considered adverse, the decision must be a material alternation of the terms of employment • Managers require broad discretion to distribute job duties as they see fit Shannon v. BellSouth Tele., 292 F.3d 712, 714-15 (11th Cir. 2002). • “Whatever the benchmark, it is clear that to support a claim, the employer’s action must impact the ‘terms, conditions, or privileges’ of plaintiff’s job in a real and demonstrable way.” Davis v. Town Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001)

13. Checklist For Preventing First Amendment Claims • DO consider all key elements of speech: who is saying what in what context to whom? • Review employee’s description and determine who closely related speech is to duties • Review policies/procedures on First Amendment activities • Gather/document facts • Interview employee • Review any similar personnel decisions (be consistent) • Determine appropriate personnel action • Remember whistleblower law potential

14. First Amendment and Political Activities • Generally employer cannot control what employee does off duty • Right of public employees to associate and the Government may not retaliate against individuals for the expression of particular views it opposes • Employees can participate in union organizing activity • Close call on political activity related to educational issues

15. Examples • Smith v. Atlanta Ind. Sch. Dist., 633 F. Supp. 2d 1364 (N.D. Ga. 2009) Former teacher and local teacher president alleged that the school district refused her retirement request in retaliation for exercising her free speech rights because she had voiced opinions on controversial topics at school board meetings. • Cook v. Gwinnett Co. Sch. Dist., 414 F.3d 313 (11th Cir. 2005). School bus driver and co-president of the United School Employees Association ("USEA"), a union-like organization,  was allegedly transferred due to her speech. During layovers when she had no duties to complete, Cook recruited fellow employees to join the USEA and raised various safety concerns and other matters to supervisors on behalf of her fellow bus drivers. Court found such speech was a public concern.

16. Teacher Religious Activities • Off duty, off campus religious activity cannot be restricted • Public employees can pray at work • Public employees can wear religious clothing • Teachers cannot promote religion at work or school sponsored events (Federal Equal Access Act) • Teachers cannot lead student religious organizations (FEAA)

17. Answers to Pop Quiz • Can a public employee be disciplined for speaking out on a matter of public concern? If it is a matter of public concern and the employee is speaking as a private citizen, then probably not. Review balancing test. • Can teachers or administrators express their personal religious beliefs in the classroom school or at work? Probably not. • Can employees engage in unionizing activity during work hours? Probably during breaks. • Can a public employee be disciplined for speech on the internet? Must determine if speech is on a matter of public concern and employee is speaking as a private citizen.