Free Speech Rights of Teachers

1) In cases where public school teacher speech is the basis for adverse employment action, the teacher must first satisfy two preliminary hurdles by showing that the speech that was the basis for the adverse employment action was (a) not official duty speech and (b) was speech on a matter of public concern.

1(a) Under Garcetti v. Ceballos, 547 U.S. 410 (2006), the speech of a government employee, even if it is public concern speech, is not protected if the speech was pursuant to the employee’s official duties rather than in the employee’s private capacity. While the extent to which this ruling applies to teachers speaking in a classroom or writing in a scholarly journal is still unresolved by the Supreme Court, most lower courts have begun to rely extensively on Garcetti in teacher speech cases involving classroom speech by K-12 teachers. These cases consider the teacher's classroom speech to be official duty speech. Since K-12 teachers are not required to write scholarly articles as part of their job responsibilities, the official duty designation is unlikely to apply to scholarly publications by K-12 teachers. Most courts interpret the comments of Justice Kennedy in his Garcetti opinion leaving open the official duty status of teaching and scholarship as directed at college and university professors rather than K-12 instructors because the Supreme Court has recognized the existence of academic freedom for faculty members in the higher education context.

1 (b) To be protected by the First Amendment, the speech of a government employee must be speech on a matter of public concern, rather than relating solely to a private grievance the employee has with her employer. In evaluating whether speech involves a matter of public concern, courts look at the content, form, and context of the speech. If the speech only relates to matters of private concern, the public school is free to take action against the teacher (or other school employee) without concern about the First Amendment. The public concern analysis is based on Connick v. Myers, 461 U.S. 138 (1983).

2) If the government employee speech is protected (does relate to a matter of public concern and is not engaged in as part of the teacher's official duties), a court will balance the teacher’s interest in expression against the school's interest in the effective and efficient operation of the government workplace to determine if engaging in an adverse employment action against the employee as a result of the speech violates the First Amendment. This analysis weighs the value of the teacher's speech against the adverse impact of the speech on the government workplace including the teacher’s relationship with immediate supervisors and co-workers. In discussing the balancing test, derived from Pickering v. Board of Education, 391 U.S. 563 (1968), the Supreme Court has said, "the state interest element of the test focuses on the effective functioning of the public employer's enterprise. Interference with work, personnel relationships, or the speaker's job performance can detract from the public employer's function; avoiding such interference can be a strong state interest."

3) If the employer and the employee do not agree about why the teacher was discharged or some other adverse employment action taken, the court will need to examine the teacher's claim that the reason was based on the fact that the teacher engaged in protected speech and the school's conflicting claim that it was for other reasons. To sort through this dispute, the court will rely on Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), to allocate the burdens of proof.

Under Mt. Healthy, the burden is initially on the teacher to show (1) his or her conduct was constitutionally protected (under Pickering, Connick, and Garcetti) and (2) it was a substantial factor or a motivating factor for the school's adverse employment action (discharge, non-renewal, etc.). If the teacher carries that burden, the burden shifts to the school to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.

4. The exact order in which to consider these elements of the analysis is not clear and not all courts engage in the steps in the analysis in the same way. Compare, for example, Spanierman v. Hughes with the following description in Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007):

After the Supreme Court's recent decision in Garcetti, it is apparent that the "Pickering" analysis of freedom of speech retaliation claims is a five step inquiry which we now refer to as the "Garcetti/Pickering" analysis. First, the court must determine whether the employee speaks "pursuant to [his] official duties." If the employee speaks pursuant to his official duties, then there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Second, if an employee does not speak pursuant to his official duties, but instead speaks as a citizen, the court must determine whether the subject of the speech is a matter of public concern. If the speech is not a matter of public concern, then the speech is unprotected and the inquiry ends. Third, if the employee speaks as a citizen on a matter of public concern, the court must determine "whether the employee's interest in commenting on the issue outweighs the interest of the state as employer." Fourth, assuming the employee's interest outweighs that of the employer, the employee must show that his speech was a "substantial factor or a motivating factor in [a] detrimental employment decision." Finally, if the employee establishes that his speech was such a factor, "the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech." The first three steps are to be resolved by the district court, while the last two are ordinarily for the trier of fact.