Originally appeared in the CAS Weekly Newsletter Written by Attorney Thomas B. Mooney
Dear Legal Mailbag:
Last week, we had three teachers “take the knee” during the playing of the National Anthem at a whole-school pep rally. Fortunately, only a few of the students noticed their actions. However, some of the other staff saw them “taking the knee” and made some comments to them and to me. We are concerned that these teachers are sending the wrong message to students. We did have some parent complaints as well, and we directed them to the teachers who made the public display. Does the First Amendment protect them in this case? I am not looking to discipline them, but I don’t want it to happen again. Can I tell them this is not allowed?
It looks like these teachers sorely lack appropriate pep. Unfortunately, picking a fight over their actions may pep them up in the wrong way. To be sure, you can tell them that they are not allowed to use a pep rally to express their political views. However, here in Connecticut, they could claim that you have violated their free speech rights, albeit under the Connecticut Constitution.
Teachers and other public employees have free speech rights under the First Amendment to the United States Constitution. The general rule is that public employees have a right to speak on matters of public concern. However, that right is not unlimited, and employers may restrict speech if the employer’s interest in promoting the efficient performance of public service outweighs the importance of the employee’s speech. Connick v. Myers, 461 U.S. 138 (1983). Given the difficulty in predicting how the courts will apply this balancing test in particular situations, employers typically give public employees a wide berth in their public statements and only seek to restrict employee speech on a matter of public concern when it clearly causes a problem.
That said, in 2006, the United States Supreme Court ruled that speech by a public employee that is “pursuant to duty” is not protected by the First Amendment. There, an assistant district attorney claimed that he suffered retaliation in violation of his First Amendment free speech rights because of statements he made in a memorandum he wrote for his job. Concerned that it not be asked to adjudicate employment disputes in the form of First Amendment claims, the United States Supreme Court ruled that speech made in fulfilling job responsibilities (“pursuant to duty”) is not protected by the First Amendment. Garcetti v. Ceballos, 547 U.S. 410 (2006).
Applying this rule to the teachers taking a knee at a pep rally, I believe that such conduct would not be protected by the First Amendment under the Garcetti rule because the teachers in your case were acting “pursuant to duty” in their capacity as teachers overseeing students. However, complicating the analysis is a recent decision by the Connecticut Supreme Court in which the court considered the scope of employee free speech rights under the Connecticut Constitution. Trusz v. UBS Realty Investors LLC (2015). There, the court rejected the per se rule of Garcetti that any speech pursuant to duty is unprotected, and instead it adopted the Connick balancing test as the appropriate standard for determining whether employee speech is protected by the Connecticut Constitution.
Given the foregoing, you have a difficult decision to make. I understand that parents and others may be annoyed by the teachers’ selfish display of their political views at a pep rally; it is not about them, after all. One can thus reasonably argue that their actions are disruptive and undermine the purpose of the pep rally. If you tell the teachers to knock it off, your action will survive First Amendment challenge, given the Garcetti rule. However, if they challenge your directive as a violation of their free speech rights under the Connecticut Constitution, your interests and the teachers’ interests will be subject to a Connick balancing test. I say that you win, but I am not the judge.
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