Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
As the principal in my building, I try to give teachers some space, so I don’t often stop by the teachers’ lounge. But yesterday I did so, and now I have a question. The teachers were chatting animatedly about the planned National School Walkout on March 14 to protest gun violence. One of the teachers announced grandly that he would be walking out of class at exactly 10:00 a.m. that day and that he would be encouraging his students to follow suit. The room got quiet, however, when I asked him rhetorically where he was planning to work starting on March 15. Then, after a minute’s reflection, the teacher became somewhat aggressive, and he pushed back, claiming that he has a right under the First Amendment to participate in the protest.
I am not proud to admit that then we got into it. In a condescending tone, the teacher cited a couple of Supreme Court cases about free speech and “comment on matters of public concern.” I responded by telling the teacher that he could protest sixteen hours a day, but not when he is being paid to teach. At the end of this brief and somewhat antagonistic exchange, the teacher told me that we would have to agree to disagree.
I don’t want to agree with this teacher on anything. Is he correct in his claim that he has the right under the First Amendment to walk out on March 14?
As regards your teacher friend, a little learning is a dangerous thing. Teachers do have rights under the First Amendment. They don’t, however, have the right to disrupt the educational process.
As you presumably know, the United States Supreme Court famously said in the seminal case of Tinker v. Des Moines Independent School District (1969), “It can hardly be argued that students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Interestingly, the Court had ruled the year before that a teacher’s free speech rights under the First Amendment were violated when he was fired for writing a letter to the editor criticizing the superintendent’s budget proposal. Pickering v. Board of Education (1968).
Fifteen years later, the Court elaborated on the free speech rights of public employees in Connick v. Meyer (1983). First, to be protected, speech by a public employee must relate to a matter of public concern. Speech about purely private grievances does not trigger First Amendment protection. Second, the importance of the speech must be balanced against any disruption that the speech may cause. For example, it may be appropriate for a teacher to comment critically on the budget decisions of the board of education, but speech that disrupts close working relationships, such as harsh public criticism by a principal of the superintendent, may not be protected.
Finally, in 2006 the Court held that First Amendment protections do not apply to speech that is made “pursuant to duty,” i.e., speech that is required to do one’s job. Any concerns over such speech relate to employment, not constitutional rights. Garcetti v. Ceballos (2006). Accordingly, a teacher has no right to use instructional time to promote his or her personal ideological views, including walking out of school at 10 a.m. on March 14.
Applying these principles to the teacher’s assertion, you have every right to disagree with the teacher because the teacher is wrong and you are right. When a teacher is scheduled to teach, he or she has no First Amendment right to coopt that time to pursue a personal agenda, even one as worthy as protesting gun violence. As you pointed out to him, the teacher has the right to express his views on the subject most of the time. But when he is scheduled to teach, he should teach, and he does not have the right to decide to do something else, like walking out of the building in protest.
That all said, the calls for a walk-out or other protest on March 14 or later pose significant challenges to superintendents and other school officials, who must reconcile competing concerns of (1) giving voice to students who are rightfully frustrated by the continued threat of violence in the schools, (2) maintaining order and discipline in the schools, and (3) keeping students safe. Responding appropriately to the planned walk-outs is a significant and complex challenge, and school officials throughout the state are planning appropriate responses to the planned walk-outs. The key is to work closely with students, parents and district leadership to deal with the planned walk-outs in a constructive and collaborative way. No one wants to suspend half the student body, and no one wants to fire teachers whose passionate views on the subject of safe schools may lead them to make bad decisions for the school and for themselves.