Dear Legal Mailbag:

Teaching Civics or anything remotely connected to how our government functions (or doesn’t function) has become a contact sport for teachers and administrators. It seems that no matter what we do, somebody claims that we’re biased one way or another.

Recently, a parent accused a teacher of making biased comments against the President. The student wrote down various comments the teacher allegedly said in class and gave them to me. When I questioned him, the teacher readily admitted that he’s not fond of the current occupant of the White House, and he conceded that he may go too far from time-to-time. At some point, I read about “matters of legitimate public concern” and free speech for public employees. But I don’t remember the details, and I just don’t know what to say anymore.

Sign Me Speechless
Dear Speechless:

You recall correctly that “matters of legitimate public concern” relate to the free speech rights of public employees. However, when teachers are doing their jobs, their free speech rights are severely limited. You are free to speak up and tell teachers and other employees that they should not share their political views when they are acting in their capacity as teachers, whether in the classroom or in other situations.

The basic principles are clear. As first announced by the United States Supreme Court in 1968, teachers (and other public employees) have free speech rights. Pickering v. Board of Education (U.S. 1968). The Court subsequently established the conceptual framework that still generally governs free speech rights of public employees. Connick v. Myers (U.S. 1983). First, the speech must relate to a matter of public concern, as you mentioned above. Speech that relates simply to matters of personal grievance is not protected under the First Amendment. Second, the importance of the speech must be balanced against any disruptive impact of the speech. Speech that expresses a political perspective will generally be protected. By contrast, speech that disrupts close working relationships or the operation of the public entity will generally not be protected. In any event, the balancing test will be applied based on all the facts of the particular case.

The rules are very different when teachers (and other public employees) are fulfilling their job responsibilities. In 2006, the Court ruled 5-4 that public employees may not claim protection under the First Amendment for speech made “pursuant to duty,” i.e., speech required to do their jobs. Garcetti v. Ceballos (U.S. 2006). When a teacher is in the classroom or otherwise dealing with students or their parents, he or she doing his or her job, and, accordingly, he or she does not have the right to express personal political views when acting in that capacity.

In sum, you do not have to put up with teachers who “go too far.” You are free to direct that teacher (and teachers in general) to refrain from discussing their political views in class, including expressing opposition to or support for the President or any of his challengers. Once teachers are on notice of your expectations in this regard, you will then be free to hold them accountable if they continue inject their personal political views into classroom discussion.

Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.