Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
Recently, the Board of Education in the district where I live and work decided to reconfigure our schools. I think that it is a terrible decision, and it will directly impact my children. The Board’s plan has now been submitted to the Town Council, which will vote in the coming weeks on whether to approve the reconfiguration.
As a resident of the town, I would like to speak up on this matter of public concern during Public Comment at the Town Council meeting. However, I work as an assistant principal in the school district, and I am worried about the potential impact of such speech on my employment. Can I, as a member of the community and taxpayer, express my view that the reconfiguration plan is a bad idea? In making any such comments, I would take care not to disclose information about my current position or reveal access to information that is not publicly available. I would speak in general terms, but I would make my concerns clear about the harmful impact this ill-advised plan would have on my children.
Thank you for all Legal Mailbag does to help educators with difficult situations.
What Can I Say?
Happily for you, we live in an enlightened age in which the free speech rights of public employees are protected. Historically, public employees were not protected against discipline for their speech or political activity. When Oliver Wendell Holmes served on the Supreme Judicial Court of Massachusetts, the Court rejected a challenge by a police officer who was fired for engaging in political activity, and Holmes famously wrote:
The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of this contract. The servant cannot complain, as he takes the employment on the terms which are offered to him. On the same principle, the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here.
McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (Mass. 1892) (emphasis added).
This view that public employees have no First Amendment protection against retaliation for their speech held true for another seventy-six years until the United States Supreme Court announced a new rule in Pickering v. Board of Education, 391 U.S. 593 (1968). There, a teacher wrote a letter to the editor criticizing the superintendent’s budget, an act for which he was fired. The Illinois Supreme Court affirmed the termination, but the United States Supreme Court reversed. The Court held that teachers and other public employees are protected by the First Amendment when they speak out on matters of public concern. The Court clarified this holding fifteen years later in Connick v. Myers, 461 U.S. 168 (1983), and gave us the analytical framework for determining whether speech by a public employee is protected by the First Amendment, as follows.
First, we must ask whether the speech was on a matter of public concern. Speech about personal grievance is not protected, but speech on a matter of public concern may be protected, depending on the answer to the second question.
Second, we must ask whether the importance of the speech outweighs the disruption, if any, caused by the speech. This balancing test is a concern, because it is difficult to predict how an employer in the first instance, and how a court on review, will strike this balance.
Here, you will have to make your own decision. However, Legal Mailbag believes that your speech expressing opposition to the reconfiguration plan would be protected by the First Amendment. Any such comment you may make clearly relates to a matter of public concern. Applying the balancing test, however, is more challenging. Following Connick, courts have identified the following factors that must be considered in determining whether speech by a public employee is protected:
- 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, place and manner 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).
Legal Mailbag notes that you are an assistant principal, but will assume that you have no employment-related involvement in designing or implementing the reconfiguration plan. Moreover, presumably you do not work directly with members of the board of education or the superintendent in your day-to-day responsibilities. Interference with close working relationships or undermining public confidence in matters for which a public employee has responsibility can be considered disruptive.
Here, Legal Mailbag will presume that you are not involved in this matter through your employment and that you would be expressing your opposition to the plan purely from your perspective as a parent. In the unlikely event that there would adverse consequences for your comments, Legal Mailbag predicts that a court on review would find that (1) you have an important right as a parent to speak out on this plan and (2) your speech did not cause any disruption because, as an assistant principal, you have not been involved in the design or implementation of the reconfiguration plan.
Finally, Legal Mailbag notes that there is a significant difference between speech in one’s role as a resident and speech in one’s role as an employee. In sharp contrast to the protections you have when you speak out as a private citizen, there are no First Amendment protections for speech in the course of employment (which the courts describe as “speech pursuant to duty”). Garcetti v. Ceballos, 547 U.S. 410 (2006). Sharing your opinion on the reconfiguration plan with parents and others you encounter in your work as an assistant principal would not have First Amendment protection.