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    Speaking Up: The First Amendment and Wisconsin’s Public Educators

    First Amendment free-speech protections accompany teachers into the classroom, but both in and outside school, teachers’ publicly expressed views often draw sharp scrutiny and sometimes official response.

    Amy E. Casey

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    freedom of speech and censorshipThe election of Governor Scott Walker and the shifts in the Wisconsin Legislature after the 2010 general election spurred a wave of changes in Wisconsin educational policy. Topics such as school vouchers, the Common Core State Standards, budget cuts, the weakening of teachers’ unions, and standardized testing continue to capture the attention of the general public. The First Amendment protects the rights of many different stakeholders in public education, from policymakers to parents, to express strong opinions about what goes on in public schools.

    However, one group of residents that holds specialized expertise about education does not always have the same level of free-speech rights as the average taxpayer. Teachers hold crucial perspectives that relate to educational policy, although many feel wary about sharing critical or strong views too loudly. For educators who are public employees, understanding how to freely join political debate without fearing disciplinary action is difficult. This article describes the extent to which the First Amendment protects public teachers’ speech both in the classroom and elsewhere.

    Public Employees, Public Concerns

    A long-standing tension exists between teachers’ desires to comment on political matters and their obligations to their governmental employers. Until the mid-20th century, the U.S. Supreme Court routinely prioritized the rights of employers over the rights of public school employees. This sentiment continued into the 1960s, when the U.S. Supreme Court noted in Adler v. Board of Education that:

    “[Teachers] may work for the school system upon the reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”1

    In 1968, the U.S. Supreme Court reenvisioned how the First Amendment applied to the speech of public employees. Marvin Pickering, an Illinois public-school teacher, was dismissed from his position because of a letter he sent to a local newspaper regarding a tax increase. In the letter, he severely criticized the superintendent of schools and the school board’s decisions on spending.

    In a move that redefined the assertions of Adler, the Supreme Court found that the action against Pickering violated the First Amendment. The Court ruled that public employees have the right to speak on matters of public concern, if the speech does not directly interfere with the particular employee’s work duties and relationships and if it does not contain reckless falsehoods. The majoritydefined the new perspective as follows:

    “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”2

    Amy E. Caseycom harterae gmail Amy E. Casey is a Wisconsin public school teacher, education blogger, and graduate student at U.W.-Milwaukee. Her interest in education law is a pragmatic one, concerned with how it directly affects public school teachers and other public employees. She writes about education and English language arts topics at www.universeastext.com.

    While Pickering established a broader scope for the protected speech of public employees, it also brought with it a problematic term: public concern. In Connick v. Myers, the Supreme Court defined matters of public concern as topics “relating to any matter of political, social, or other concern to the community.”3

    The decisions in Pickering and Connick resulted in the Pickering-Connick test, a two-part standard that upholds a public employee’s free-speech rights if the employee can prove that 1) the speech in question addresses a matter of public concern and 2) the employee’s free-speech interests outweigh the employer’s need for efficiency. The second part of the test requires the court to consider whether the speech 1) interferes with harmony in the workplace, 2) damages working relationships, or 3) interferes with the operation of the employer’s business, any of which would invalidate the plaintiff’s claim.4

    Such difficult-to-define factors have resulted in inconsistent decisions in lower courts.5 Ultimately, in cases of public educators’ speech, the end goal of the courts is to fairly weigh the First Amendment rights of the educator against damage to the school’s environment – a tricky balancing act.

    What Can Public School Teachers Say in the Classroom?

    In 2006, the U.S. Supreme Court heard another case that more explicitly defined the First Amendment rights of public employees – Garcetti v. Ceballos.6 In this case, which involved a critical memo created by a public employee, the court found that any speech which is “pursuant to [an employee’s] official duties” is not protected by the First Amendment. The language of Garcetti allowed employers additional power to regulate the speech of public employees, especially during the work day. While the federal circuits have split on how to interpret this decision, the Seventh Circuit has applied the principle strictly.7

    Plainly put, public school educators’ freedom of speech is sharply limited while they are teaching. No Wisconsin statutesspecifically detail allowable political speech within public school classrooms, but most public schools have their own policies that govern teachers’ political speech during school hours, on school grounds, or at school-sponsored activities, to ensure that teachers are acting in the best interest of the educational mission of the school.

    Under Garcetti, speech that violates such a policy would not receive First Amendment protection. In a public school, the interest in maintaining political neutrality spurs policies preventing teachers from using publicly funded time or resources, such as school computers, to engage in their own political activity. Most schools have policies restricting the posting of political speech on school-owned property. Any political speech that a teacher makes or displays in school may be subject to censorship, depending on whether or not the school can prove interference with the educational environment.

    Most public schools have their own policies that govern teachers’ political speech during school hours, on school grounds, or at school-sponsored activities.

    In 2008, the Wisconsin Court of Appeals, affirming the Wisconsin Employment Relations Commission and the Milwaukee County Circuit Court, ruled in favor of Milwaukee Public Schools (MPS) teachers’ right to wear buttons and post classroom signs with union slogans because their speech, while political, was also “lawful concerted activity within the protection of [Wis. Stat. section] 111.70(2).”8 The protection of Wis. Stat. section 111.70 was found to outweigh the MPS policy against teachers’ political speech.9

    However, had the Milwaukee Board of School Directors been able to show a more consistent regulation of all noneducational materials (such as posters depicting popular musical artists), the ruling may have easily gone the other way.10 Bottom line: public school teachers must be prudent about politics within school walls.

    Since courts consistently uphold the rights of schools to determine their own curriculum, teachers have no constitutional right to include unapproved texts or materials of their own choosing in course content.11 However, certain subjects in education will naturally lend themselves to the discussion of controversial topics. Such discussion is an essential part of fostering critical thinking and democracy within the classroom. But it also is potentially thin ice to tread for a teacher.

    In 2007, the Seventh Circuit Court of Appeals ruled against an Indiana teacher who felt the Pickering-Connick test should weigh in her favor after she was terminated for briefly revealing her own anti-war viewpoints during a current-events lesson.12 Classrooms are not considered public forums, and teachers must work within school limitations in their approach to sensitive topics, careful not to take sides on political controversies.13

    To foster class discussion in light of these parameters, a teacher can pose questions that explore both sides of an issue and then allow the students to control the flow of the discussion, while the teacher facilitates from a neutral point of view. Even after Garcetti, courts will still protect a teacher’s presentation of certain concepts or utterance of certain words that surround controversial topics, as long as doing so is part of advancing the school-sanctioned, politically neutral curriculum.14 Despite the laws and policies that control teachers’ speech in the classroom, students’ access to important ideas must not be limited in ways that could inhibit state-mandated educational goals such as “the skills to participate in political life” and “an appreciation of different value systems and cultures.”15

    Outside the Classroom

    Thanks to Pickering and Connick, public employees enjoy constitutionally protected speech on matters of public concern when acting as private citizens, which means that their freedom of speech expands considerably once they exit the school building. Public employers may not make employment decisions of any kind that are motivated by the protected free speech of their employees.16 But that line between acting as an employee and acting as a private citizen is not always clear, especially in the case of public school teachers, whose politics are sometimes inextricably linked to their own jobs.

    In 2012, Wisconsin teacher John Koszarek stirred up threats of disciplinary action at Slinger High School when he wrote an email to his state representative that included a reference that indirectly compared Republican political candidates to Hitler.17 Although the email was sent on Koszarek’s own time and with his own resources, school officials felt that the statements disrupted Koszarek’s immediate working relationships and reflected poorly on the school.

    With assertions like that from a public employer, even a comment made while acting as a private citizen is potentially punishable under Garcetti. In Koszarek’s case, any eventual disciplinary action he might have received was not publicized. At the time of the incident, he had already submitted his retirement to the district, which the school board approved.18

    Social media muddies the line between teachers’ private and public lives even further. Online networking offers troublesome ground for public employees whose employers might object to speech made as part of employees’ online identities. A teacher’s social media profile may directly or indirectly identify her as an employee of a school district. In such a case, is the speech contained on a social media profile fair grounds for an employment decision?

    This question does not yet appear to have a consistent answer. A teacher in Beaver Dam was placed on administrative leave in 2009 because of a parent’s complaint about her Facebook profile picture, which featured her aiming a rifle at the camera, even though she removed the picture immediately.19

    In another Facebook-related case, a teacher in Georgia was pressured to resign when parents and school staff members objected to photos of her holding alcohol beverages and using the phrase “crazy bitch bingo.” She filed a lawsuit to get her job back, but the court held that she was not entitled to relief, since her decision to resign was voluntary and her one-year period of probationary employment had already expired by the time the case was heard.20

    Still another example involved an art teacher in Virginia who showcased his unconventional artistic methods on a cable-television show. Under a pseudonym and wearing a disguise, he created images by applying paint to a canvas using his exposed buttocks. When other staff members brought a leaked YouTube video of the broadcast to the attention of the district, the teacher was fired; however, he won a settlement of $65,000 after filing a First Amendment suit.21

    In each of these cases, the material that prompted disciplinary action depicted legal activities that were separate from the teachers’ official duties. But a court could still conceivably rule in favor of a school in similar situations, depending on the case. The complication lies in the implicit assumption that teachers are held to a higher than normal code of moral propriety because of their position as role models for children.22

    In fact, Wisconsin law includes the word “immorality” in its language about acceptable reasons for discharging a public school teacher.23 When moral standards are applied to an employee’s overall conduct, it can be difficult to tell where a teacher’s life – and the speech that accompanies it – transitions from public to private. Educators should be aware that the law might not protect them from employer punishment for material posted on the Internet. School districts’ social media policies should be communicated clearly to staff, who should in turn take these policies seriously.

    Conclusion

    Due to their prominent community positions, teachers must exhibit a high level of professionalism to engender the trust of their employers and students and the many other stakeholders in public education. The limitations on teachers’ freedom of speech are, in the best scenarios, in service of preserving this necessary trust. For teachers to be embraced by a community, they must be seen as dependable leaders with sound morality and a steadfast sense of responsibility to the education of their young charges. Community members’ buy-in of a school’s mission and staff is a pivotal part of a school system’s effectiveness and achievement.24 Many people believe that some degree of sacrifice of teachers’ right to expression is acceptable to ensure that young people are being safely influenced by positive role models at school

    Critics of the Garcetti decision, though, fear the potential chilling effect on educators who might otherwise speak up about important issues or wrongdoing in their workplaces.25 In many ways, teachers are some of the most qualified people to speak about, as well as criticize, what goes on in schools. Much of value can be gained from their perspectives; educators have a strong potential to influence educational policy, and have valuableexpertise to share about the workings of education.26 Laws and policies that keep teachers silent may contribute to misinformed and ineffective decisions about public education.

    Endnotes

    1 Adler v. Board of Educ., 342 U.S. 485, 492 (1952).

    2 Pickering v. Board of Educ., 391 U.S. 563, 568(1968).

    3 Connick v. Myers, 461 U.S. 138 (1983).

    4 David L. Hudson Jr., Balancing Act: Public Employees and Free Speech, 3First Reports1 (2002).

    5 Rodric Bruce Schoen, Pickering Plus Thirty Years: Public Employees and Free Speech, 30 Tex. Tech L. Rev. 5 (1999).

    6 Garcetti v. Ceballos, 547 U.S. 410 (2006).

    7 Callahan v. Fermon, 526 F.3d 1040 (7th Cir. 2008); Chrzanowski v. Bianchi, 725 F.3d 734 (7th Cir. 2013); Renken v. Gregory, 541 F.3d 769 (7th Cir. 2008). See also Emily White Kirsh, First Amendment Protection of Teachers ‘ Instructional Speech: Extending Rust v. Sullivan to Ensure That Teachers Do Not Distort the Government Message, 58 Clev. St. L. Rev. 185. (2010).

    8 Milwaukee Bd. of Sch. Dirs. v WERC, 2008 WI App 125, ¶ 2, 313 Wis. 2d 525, 758 N.W.2d 814.

    9 Wis. Stat. § 111.70(2).

    10 Michael J. Julka & Shana R. Lewis, Union Buttons and Signs in the Classroom. Wis. Sch. News18 (Jan. 2007).

    11 Evans Marshall v. Board of Educ., 624 F.3d 332 (6th Cir. 2010).

    12 Mayer v. Monroe Cty. Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007).

    13 Murray v. Pittsburgh Bd. of Pub. Educ., 919 F. Supp. 838 (1996).

    14 ACLU-WA.org. Free Speech Rights of Public School Teachers (2015) (last visited July 30, 2015).

    15 Wis. Stat. § 118.01(2)(c).

    16 Harris v. Victoria Independent Sch., 336 F.3d 343 (5th Cir. 1999).

    17 Tom Tolan, Slinger Teacher Draws Heat for Hitler Reference, Milw. J. Sentinel, Jan. 12, 2012.

    18 School District of Slinger Board of Education, Minutes, Meeting of Oct. 22, 2012.

    19 Tony Galli, Teacher Placed on Leave for Questionable Facebook Posting, WKOW.com (Feb. 3, 2009) (last viewed Aug. 13, 2015).

    20 Payne v. Barrow Cty. Sch. Dist., Case No. 09CV-3038-X (Super. Ct. Ga. 2009).

    21 Murmur v. Chesterfield Cty. Sch. Bd. (E.D. Va. 2007) (last viewed Aug. 13, 2015).

    22 Emily H. Fulmer, Privacy Expectations and Protections for Teachers in the Internet Age. 9 Duke L. & Tech. Rev. 1 (2010).

    23 Wis. Stat. § 118.23.

    24 Dennis Van Roekel, Parent, Family, Community Involvement in Education. NEA Education Policy & Practice Department (2008).

    25 Martha M. McCarthy & Suzanne E. Eckes, Silence in the Hallways: The Impact of Garcetti v. Ceballos on Public School Educators. Boston Univ. Pub. Int. L.J. (2007-2008).

    26 Julie Underwood, Do You Have the Right to Be an Advocate? 95 Phi Delta Kappan 26 (2013).