Dear Legal Mailbag:

After a great deal of planning, we have finally started the new school year in this challenging time of COVID. All things considered, I think that we have done a great job. We have PPE (do we have PPE!) and our teachers have really pulled together and are ready to educate our students, both in-person and remote.

I write because one of my teachers has become a real problem. She is constantly on social media complaining that our mitigation efforts are inadequate and that she and her colleagues risk their lives every day they come to school. Yesterday, she even posted pictures on Facebook of different parts of our school, with uninformed but alarmist commentary about the dangers for students and staff lurking around every corner. It has gotten so bad that I am getting calls from parents asking me to tell her to knock it off. One parent even wrote me a nasty letter, questioning my grit and telling me that the teacher would have been fired long ago if she worked for his company.

I feel that I must do something, because this teacher is really upsetting a lot of people with her posts on social media. But I worry that she may have a free speech right to say what she says. What do you say?

Put a Sock in It

Dear Put:

Your concern about the First Amendment is legitimate. However, free speech rights are not absolute, and under these circumstances Legal Mailbag says that you can take this teacher on.

First, we must draw a distinction between speech “pursuant to duty” and personal speech on matters of public concern. The United States Supreme Court has ruled that the First Amendment does not apply when public employees speak in doing their jobs (i.e. pursuant to duty). This teacher has no protection under the First Amendment if she uses class time to complain and alarm students.

Second, the First Amendment protections are applicable only when public employees speak on matters of public concern. When their speech relates to personal grievance (e.g., a Facebook post criticizing a teacher colleague unrelated to public concerns), teachers and other public employees cannot claim free speech protections.

Third, the free speech rights of public employees to speak out on matters of public concern are not absolute. The courts will use a balancing test to determine whether particular speech is protected, balancing the importance of the speech against the disruptive effect, if any, of the speech. When the disruption caused by the speech outweighs its importance, the employer can prohibit the speech and discipline an employee who disrupts the workplace through his or her speech.

Here, Legal Mailbag recommends that you deal with this employee as follows:

  • Share the letter from the parent criticizing the teacher’s posts, and inform her that other parents are complaining as well.
  • Tell her that she is bringing discredit to herself by her irresponsible posts.
  • Acknowledge that she has a right to free speech.
  • Tell her that her right of free speech is not absolute and that speech that disrupts school district operations will not be tolerated.
  • Ask her to reflect on her actions.
  • Warn her that if she continues and her speech causes disruption, disciplinary action will be taken.
  • Follow through with discipline if she continues with her posts and causes disruption.

Please let Legal Mailbag know how it goes!

Originally appeared in the CAS Weekly Newsletter.