Five principals who were suspended because they spoke out against their superintendent’s plan for school reform in Newark, N.J., have sued the superintendent over free speech rights, claiming they had every right, as citizens, to speak out against her plan, NJ.com reports.
The Supreme Court said in Pickering v Board of Education (1968), which was considered on appeal from a decision involving School District 205 in Will County, Ill.:
Free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions [regarding the efficient] operation of schools. … [A]bsent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. … [However,] [i]t is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal.
The public employee in Pickering wrote a letter in a local newspaper that objected to the district’s reallocation of funds into athletic programs and away from other school resources, along with other reform measures the district was implementing. He won his case and showed the district had violated his right to free speech as a citizen.
My understanding of this landmark ruling has always been that speech by teachers is protected under the Free Speech Clause of the First Amendment as long as it:
- Is made as a private citizen, not in uniform or at a school-sponsored event
- Doesn’t mix with any activity that could be considered providing an education to students
- Contains no known or reckless errors or inaccuracies
- Discloses no information that is generally believed to be confidential
But 1968 was long before the Internet, blogs, and social media were even an electrical impulse in anyone’s brain. Today the Internet is replete with blogs by teachers, many of whom are still employed, and they are all commenting on matters of school operations.
Where can we draw a line? A 2006 decision in the Supreme Court clarified this line a little, as Justice Anthony Kennedy wrote for the Court:
We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job.
He wrote that in the Court’s opinion in Garcetti v Ceballos, and it zooms in on the idea of “pursuant to their professional duties” and “in the course of doing [the teacher’s] job.” The case made its way to the Court because other cases had blurred the line between speech by a private citizen that is protected by the First Amendment and speech by a public employee, a teacher, or in Newark’s case, a principal, that is made pursuant to professional duties, which is not protected.
Many blogs come dangerously close to testing this line, and I would say some probably cross it. It is vital to have informed debate about school matters, and for that, informed opinions are essential. The Supreme Court, after the Garcetti decision, issued a legal memo, saying that “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”
That is, the employer, here the Newark school district, if they restrict speech, would have to prove that what the employee said somehow impedes them from operating “efficiently and effectively.” Then, assuming they could prove that—and it’s a substantial burden—the employees, here the principals, would have to prove that they were speaking “as citizens,” not as public employees pursuant to their professional duties.
See, this is why I have always advised teachers not to become friends with their current students on Facebook. Doing so means they’re using Facebook pursuant to their professional duty to provide an education to those students, which means anything else those teachers post on Facebook could be included and considered a part of their professional duties. Facebook’s policies allow the creation of only one account per person, so the speech cannot be separated into “protected speech as a citizen” and “unprotected speech as a public employee pursuant to professional duties.”
I don’t think Garcetti rejects Pickering, just that it clarifies who has to prove what in a lawsuit. We will be following the case in New Jersey very carefully (obviously), as it has ramifications for a legal interpretation of Garcetti that extend beyond the Garden State.
I think every public employee—especially those who know that blogs are a highly effective, albeit informal, way to disseminate information about important public issues to the public—should be cheering for the five Newark principals. They were reinstated in their positions, but the lawsuit has great merit based on the initial action of a superintendent, here Cami Anderson, who wanted to squelch their free speech.