Dear Legal Mailbag:

I am an avid reader of Legal Mailbag, and your advice has been helpful as I do my job as a principal. For example, I always thought that the First Amendment guaranteed teachers free speech rights, and I was surprised by your recent answer that teachers don’t have a free speech right to talk about politics to students in class. Live and learn.

Just this week, my superintendent called me irate to complain after he read a teacher’s post on Facebook calling him a “lightweight who can’t get out of his own way.” I set my personal feelings aside and told my superintendent that the teacher’s statements were an affront and an outrage. My superintendent was pleased with my show of loyalty, and he told me to think about writing up the teacher for insubordination.

I don’t pretend to understand all the nuances of employee free speech rights, and I need help. This teacher certainly did cross the line here, and I am more than happy to tell him so. But a written reprimand for a Facebook post seems excessive, and I don’t want to lose a grievance. What should I do – counsel this teacher or write him up?

Weighing Options

Dear Weighing:

How about neither? While teachers don’t have protection under the First Amendment for statements they make “pursuant to duty,” i.e., while doing their jobs, they do have free speech rights when they speak outside of their job duties on matters of public concern.

As noted previously, the free speech rights of public employees are not unlimited. To determine whether speech by a public employee on a matter of public concern is protected under the First Amendment, we must apply the balancing test announced by the United States Supreme Court in Connick v. Myers (U.S. 1983). There, the Court held that the importance of the speech must be balanced against the disruption that the speech may cause.

Apropos of your superintendent’s concern, it may be helpful to consider the factors that the courts have identified in considering whether such speech is disruptive:

  • the need for harmony in the public work place;
  • whether there is a need for a close working relationship between the speaker and the persons who
  • could be affected by the speech;
  • the time, manner, and place of the speech;
  • the context in which the dispute arose;
  • the degree of public interest in the speech; and
  • whether the speech impeded the ability of other employees to perform their duties.

Roberts v. Van Buren Public Schools, 773 F.2d 948 (8th Cir. 1985).

Applying these factors to the teacher’s post on Facebook, Legal Mailbag believes that a court on review would not find that the speech was disruptive. Teachers typically do not have a close working relationship with superintendents, and publication of this criticism of the superintendent would not impede the ability of the teacher or of other employees to do their jobs. Rather, the post was simply the expression of the teacher’s personal opinion, one that would likely have no impact on the operation of the school district. Accordingly, the post should not result in discipline of the teacher.

That all said, your impulse may be to counsel the teacher to think twice about publicly criticizing the superintendent. Don’t do it. By expressing concern through such counseling, you will be giving the teacher a potential claim against you at some point in the future. If the teacher later receives a negative performance evaluation or is transferred, for example, the teacher could point to your conversation as evidence that you didn’t like the teacher’s post and then claim that the poor evaluation or transfer (or whatever) was retaliation for exercising protected constitutional rights. Where employee free speech rights are concerned, sometimes it is better to keep your mouth shut.

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