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Freedom of Speech and District Technology

Public School Employee Freedom of Speech and District Technology

Chris Telfer

Edgewood College

ED820 Law Media Relations

Dr. Koch - Professor


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Abstract

Since the Tinker v. Des Moines Supreme Court case 393 U.S. 503 (1969), freedom of speech, for

educators has been acknowledged. However, cases have shown a limitation on this first

amendment right for educators. This paper serves to give a background of protected speech, look

at acceptable use policies regarding electronic communication, then look at applying these

traditional freedom of speech tests with district technology. If a staff member warrants

disciplinary action based on these tests, is it the right thing to do when you consider potential

public and or media ramifications?


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Public School Employee Freedom of Speech and District Technology

The first amendment of the United States constitution grants all individuals the right of

Freedom of Speech, Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the

right of the people peaceably to assemble, and to petition the government for a redress of

grievances. (LII Constitution, 2008, p.1). The true confirmation for public school employees

came with the Tinker v. Des Moines Supreme Court case in 1969, where the court ruled that
neither teachers nor students lose their constitutional rights to freedom of expression when they

enter the public schools. (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 123; Roth, S. V.,

Bennett, B., 1997, p. 2). It should be noted that the court also stated that teachers or students

cannot say of write anything they wish. (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p.

123) Since then the courts have continued to give a legal framework for protected speech.

One of the limitations on public employee freedom of speech was famously stated in the

Bong Hits for Jesus case, where the Supreme Court supported the school district in

disciplining a student on the grounds that the banner violated school policy regarding the display

of any kind of drug message at school events (Neuburger, J.D., 2008, p. 2.) This right of

expression came to another milestone with the Pickering v. Board of Education case 391 U.S.

563, 568. This case gave a precedent setting legal basis to weigh the rights of the individual

against the rights of the government as an employer. (Griffith, M. R., 2007, p.1; Supreme Court

of the United States, 1983, p. 3.) Later in Garcetti v. Ceballos, the United States Supreme Court

held that "when public employees make statements pursuant to their official duties, ... the

Constitution does not insulate their communications from employer discipline." (Griffith, M. R.,

2007, p. 1; Garcetti v. Ceballos, 547 U.S. 410., 2006, p12; Spanierman v. Hughes, No. 06-1196,

2008, p. 28-29).

The court case gave further tests to use if an employees free speech rights were involved.

However, it doesnt guarantee first amendment protection. " Nonetheless, as the Supreme Court
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has held, when a public employee speaks not as a citizen upon matters of public concern, but

instead as an employee upon matters only of personal interest, absent the most unusual

circumstances, a federal court is not the appropriate forum in which to review the wisdom of a

personnel decision taken by a public agency allegedly in reaction to the employees behavior.

Connick, 461 U.S. at 147." (Unites States District Court District of Connecticut, 2008, p. 30;

Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 128.) Courts continued to grant the authority

school boards the broad authority to determine curriculum and control teacher speech in the

classroom. (Law Offices of Spector, Middleton, Young and Minney, LLP, 2005, p. 1.) "Only if
school authorities have by policy or practice opened those facilities 'for indiscriminate use by the

general public" or by some segment of the public, such as student organizations is their

protection, [if this is not the case], the district could restrict speech as it pertains to the materials

and curriculum used by the teacher." (Williams v Vidmar Et. Al., No. C 04-04946, 2005, p. 9.)

In Teachers and the Law by Pearson (2007), there are several questions along with their

court based answers. These are interesting in that they demonstrate the acknowledgement of

protected speech but in many instances also establish limitations.

Can a Teacher Be Dismissed for Publicly Criticizing School Policy?

Not Usually" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 123.) The court ruled

that teachers are members of our society that would be most informed to know if there is any

mismanagement of the schools and therefore should be able to speak without fear of retaliation.

(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 124.)

"Can a School Board Ever Restrict Teachers' Rights to Publicize Their Views?

Yes. in Pickering, Justice Marshal wrote it is possible to conceive of some position in

public employment in which the need for confidentiality is so great that even completely correct

public statements might furnish a permissible ground for dismissal." (Fischer, L., Schimmel, D.,

Stellman, L.R., 2007, p. 125.)


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"Can Teachers Be Disciplined for Publicly Criticizing Their Immediate Superiors?

This depends on the circumstances. In Pickering, Justice Marshall wrote certain forms of

public criticism of the superior by the subordinate would seriously undermine the effectiveness

of the working relationship between them and thus justify appropriate discipline." (Fischer, L.,

Schimmel, D., Stellman, L.R., 2007, p. 125.)

In an Alaska case, the court upheld two teacher dismissals, because their letter contained
false allegations. The allegations "were not consistent with good faith and were made in reckless

disregard of the truth" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 125.)

In a Texas case, the court concluded, "society's interest in information concerning the

operation of its schools far outweighs any strain on the teacher-principal relationship" (Fischer,

L., Schimmel, D., Stellman, L.R., 2007, p. 125.)

"Would Pickering Always Protect Teachers Who Make Unintentional False Public

Statements?

Generally, but not always. In Hartford Connecticut, for example, a tenured high school

teacher was dismissed for distributing leaflets that contained a number of false statements about

her principal.....However, a federal court ruled that her distribution of these leaflets was not

protected by the First Amendment because their basic purpose was to cause dissension, and they

contained serious, damaging, and incorrect accusations that had an immediate and harmful

impact on the school." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 126.)

"Is Private Criticism Protected?

It depends on the circumstances. ...The Court rejected the notion that the First

Amendment does not protect criticism of a principal simply because of the close working
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relationship between principal and teacher. The Court emphasized that freedom of speech is not

lost when a teacher arranges to communicate privately with his employer rather than to spread

his views before the public. On the other hand, a teacher's criticism might not be protected

when it specifically impedes classroom duties or the operation of the schools. In regard to

personal confrontations between an educator and an immediate superior, the Court noted that

judges may also consider the "manner, time, and place" confrontations when balancing the rights

in conflict. " (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 127-128.)

In [a] federal case, a teachers dismissal was upheld for telling her black principal and

assistant principal, "I hate all black folks." Unlike the Pickering case, Anderson' remarks created

tension between the teacher and her principals, they caused an adverse reaction among

coworkers, and they "cast serious doubt on her judgment and general competence as a teacher"

in a school district where most students were black. Under these circumstances, the court ruled

that the school board's interest in maintaining an efficient system and in employing effective

teachers outweighed Anderson's free speech interest and, therefore , that her dismissal was not

unconstitutional." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 128.)

"Are Personal Complaints Protected by the First Amendment?

No. The U.S. Supreme Court ruled in Connick v Meyers that "when a public employee

speaks not as a citizen upon matters of public concern, but instead as an employee upon matters

only of personal interest...a federal court is not the appropriate forum in which to review the

wisdom" of the public agency's personnel decision." (Fischer, L., Schimmel, D., Stellman, L.R.,

2007, p. 128.)

"When Are Teachers' Statements Matters of Public Concern?

According to Connick, when they relate to any matter of political, social, or other
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concern to the communityit also depends on the content, form and context." (Fischer, L.,

Schimmel, D., Stellman, L.R., 2007, p. 128.)

"When Are Teachers' Comments Not Considered Matters of Public Concern?

In Illinois, a federal appeals court wrote that a series of sarcastic, unprofessional, and

insulting memoranda to school officials were not protected because the teacher was not

speaking as a citizen concerned with problems facing the school district, but was expressing his

own private disagreement with policies and procedures which he had either failed to apply or
refused to follow." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 129.)

In Washington D.C., a court did not protect a teacher's letters about overcrowding in her

classroom, which she claimed was a safety hazard. The court explained that if the reason for the

letters was the teacher's personal interests, a passing reference to safety will not transform a

private employee grievance into a matter of public concern. And a federal appeals court ruled

against a coach who was not rehired after controversial newspaper interview about his

termination. According to the court, a teacher's personal grievance does not become a matter of

public concern simply because there is a story about it in a newspaper." (Fischer, L., Schimmel,

D., Stellman, L.R., 2007, p. 129.)

In Pittsburgh, a high school teacher alleged that she lost her coaching position in

retaliation for a faculty newsletter she published that included a discussion of staff problems such

as "undue stress" and "low esteem." A federal appeals court ruled that the teacher did not

comment on any broad social or policy issue" but "solely on employee morale." (Fischer, L.,

Schimmel, D., Stellman, L.R., 2007, p. 129.)


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In Massachusetts, a court ruled that a coach's one-word response to a reporter - "cowards"

- describing his soccer team was not protected expression. Comments of public concern, wrote

the court, are limited to "information needed to enable citizens to make informed

decisions....disclose misconduct, or to generate debate about significant public issues." (Fischer,

L., Schimmel, D., Stellman, L.R., 2007, p. 129.)

"When Are Teachers' Public Comments Not Protected?

When judges consider the time, place, manner, context and consequences of a teacher's

expression and conclude that the school's interest outweighs the teachers. Example: Virginia

decision, Jeffry Newton, a Virginia high school English teacher, was ordered to remove the

banned books pamphlets he posted outside his classroom door. The pamphlets, listed and

described recently banned books that ranged from Catcher in the Rye and The Firm to the Joy of

Gay Sex. A federal court acknowledged that a discussion of censorship is "a matter of important

public policy." But the judge ruled that the posting of material on classroom doors is an

extension of the curriculum, the curriculum is the responsibility of school officials, and teachers

may not claim constitutional rights in order to take control of the curriculum." (Fischer, L.,

Schimmel, D., Stellman, L.R., 2007, p. 131.)

"What about Political Speech?

The First Amendment protects teachers' rights to participate in political activity as


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citizens in the community. Teachers may put political stickers on their cars that are parked at

school...However, they must be careful not to try to persuade students to adopt their personal

political views. Furthermore, teachers may be prohibited from using school time to engage in

partisan politics. Thus a federal decision upheld a school policy that prohibited political activity

by employees on school grounds during school hours." (Fischer, L., Schimmel, D., Stellman,

L.R., 2007, p. 132.)

Consciously or otherwise, teachers... demonstrate the appropriate form of civil discourse

and political expression by their conduct and deportment in and out of class. Inescapably, like
parents, they are role models..." (La Morte, M.W., 2008, p. 220.)

"When Discussing a Contract at an Open Meeting, Can a School Board Prohibit

Nonunion Members from Speaking?

No. During contract negotiations in Madison, Wisconsin, a nonunion teacher was allowed

to address the school board concerning a controversial contract provision, over the objection of

the union.... The Court wrote "when the State has opened a forum for direct citizen involvement,

it is difficult to find jurisdiction for excluding teachers...who are most vitally concerned."

Whatever its duties as an employer, when a school board sits in public meeting to hear the views

of citizens, it cannot be required to discriminate against speakers who are not members of the

union." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 132-133.)

"Are Teachers at Private Schools That Receive State Funds Protected by the First

Amendment?

No. This was a ruling of the U.S. Supreme Court in a case concerning teachers who were

dismissed from a private school for publicly opposing policies of the administration and

publishing a letter protesting the school's picketing policy. Although the state paid over 90

percent of the school's budget, the Court ruled that the acts of the school in dismissing the

teachers did not become acts of the government because the government did not influence those
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actions. Thus the First Amendment did not apply to this case because the discharge of the

teachers was not a state action." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 133.)

"Do Whistleblower Statutes Protect Teachers?

Yes. All 50 states have Whistleblower protection statutes. Generally, they cover teachers

and other public employees who in good faith report a violation of law. Many also cover

employees who report gross waste of public funds, or specific dangers to public health, safety or

welfare." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 133.)


Academic Freedom

Academic freedom is an area of free speech that educators believe is a fundamental right

and therefore can dictate what they can or cannot do in a classroom.

Academic freedom includes the right of teachers to speak freely about their subjects, to

experiment with new ideas, and to select appropriate teaching materials and methods. Courts

have held that academic freedom is based on the First Amendment and is fundamental to our

democratic society. It protects a teacher's right to evaluate and criticize existing values and

practices in order to allow for political, social, economic, and scientific progress. Academic

freedom is not absolute, and courts balance it against competing educational values." (Fischer,

L., Schimmel, D., Stellman, L.R., 2007, p. 134. The following cases illustrate some court cases

that shed some light on exactly where the courts see academic freedom.

For example, in Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir.

1998), cert. denied, 526 U.S. 813 (1998) a drama teacher's reassignment due to her choice of

plays for a statewide competition was upheld. The controversial play dealt with a single-parent

family including a divorced mother, a lesbian daughter, and an unmarried pregnant daughter. The

teacher claimed a First Amendment right to participate in the development of the school

curriculum through the selection and production of the play; however, the majority opinion held
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that curriculum development should be left to the local school authorities rather than to teachers.

In its decision, the court held that the play was a part of the curriculum and the choice of plays

was not a matter of public concern, consequently, not protected speech.

"Does Academic Freedom Allow Teachers to Disregard the Text and Syllabus?

No. A federal court considered this question when a biology teacher was not rehired

because he overemphasized sex in his health course. The teacher explained that his students
"wanted sex education and mental health emphasized," and he agreed to only touch on the other

topics covered by the assigned text and course syllabus.The court concluded that academic

freedom is not " a license for uncontrolled expression at variance with established curricular

content." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 138.)

In another federal court case it was determined that a history teacher had no right to

substitute his own reading list for the school's official list without seeking administrative

approval as required by school policy." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p.

138.)

In the Mt. Healthy City School District Board of Education v. Doyle, 429 US 274. The

Court's opinion in Doyle reaffirms the doctrine that non-tenured teachers have First Amendment

rights, and they may established claim to reinstatement if the reason for not being rehired was in

violation of these rights. However, as the Court stressed, engaging in constitutionally protected

conduct may not prevent an employer from dismissing a teacher on the basis of his or her total

performance record." (La Morte, M.W., 2008, p. 214-215.)

"Can Teachers Be Punished for Discussing topics or Distributing Materials That

Are Not Relevant?

Yes. Academic freedom does not protect materials, discussions, or comments that are not

relevant to the assigned subject." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 138.)

"Is Academic Freedom the Same in Public Schools and in Colleges?


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No. The scope of this freedom is broader in colleges and universities than in public

schools. In Mailloux v. Likey, Judge Wyzanski explained that his is so because in secondary

schools "the faculty does not have the independent traditions, the broad discretion as to teaching

methods, nor usually the intellectual qualifications, of university professors.... Some teachers and

most students have limited intellectual and emotional maturity... While secondary schools are not

rigid disciplinary institutions, neither are they open forums in which mature adults, already

habituated to social restraints, exchange ideas on a level of parity. Moreover... a secondary

school student, unlike most college students, is usually required to attend school classes and may
have no choice as to his teacher." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 143.)

"In summary, there is a difference between the free speech rights of a university professor

when expressing his or her point of view in Sproul Plaza and those of a fifth grade elementary

school teacher in expressing a point of view as part of classroom instruction." (Williams v.

Vidmar, N.D.Cal. 2005, p. 9.) "Indeed, the Court takes judicial notice that a K-12 classroom in a

public elementary school is a nonpublic forum. " (Williams v. Vidmar, N.D.Cal., 2005., p. 9.)

If school officials or through district practice have established open access to school

facilities then it is much more difficult to restrict any expressions. "School facilities may be

deemed to be public forums only if school authorities have "by policy or by practice" opened

those facilities "for indiscriminate use by the general public," ..or by some segment of the public,

such as student organization." (Roth, S. V., Bennett, B., 1997, p. 4.)

"Does Academic Freedom Protect the Assignment of Controversial Materials?

It may, the sensibilities of parents do not determine what is proper education. (Fischer,

L., Schimmel, D., Stellman, L.R., 2007, p. 135.) Controversial methods might depend on the

specific situation - the age of the students, the word used, its relevance to the curriculum, the

purpose of its use, and whether teachers know of its prohibition." (Fischer, L., Schimmel, D.,

Stellman, L.R., 2007, p. 135.) In Colorado, a federal appeals court upheld a reprimand against a

social studies teacher, John Miles, for discussing a rumor about "two students making out on the
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tennis courts" to illustrate his belief that the quality of education is declining. In rejecting the

teacher's claim that his remarks were protected by the First Amendment, the court wrote that

case law does not support Miles' position that a secondary teacher has a constitutional right to

academic freedom." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 135.)

"Are a Teachers' Controversial Responses to Students' Questions Protected?

They might be if they relate to a matter of public concern and are not disruptive."

(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 138.) According to this judge.."if a question

involves [the certification area of teacher], so much the better. But if the question involves an
important social issue... the teacher need not remain silent, or as [the school's] counsel suggested,

refer the student to a guidance counselor. Rather, the teacher had the right, and perhaps duty, to

respond... I do not believe a public school teacher, when asked by a student for guidance on

important social issues of the day, must stand mute." (Fischer, L., Schimmel, D., Stellman, L.R.,

2007, p. 139.) In contrast, a Missouri appeals court upheld the dismissal of an eighth-grade

teacher who responded to a student's questions about whether she was for or against interracial

relationships. " I'm totally against it.", she replied. She also stated that interracial couples should

be 'fixed' so they don't have children." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 139.)

"Can a Teacher Be Punished for Showing an R-rated Film to Students?

Probably, although it may depend on the students, the movie and how it is shown. An

example of how not to do it is provided by the case of Jacqueline Fowler, a tenured Kentucky

teacher, who was fired for showing an R-rated film, Pink Floyd - The Wall, to students in grades

9 and 11. Fowler argued that the film contained "important, socially valuable messages." But a

federal appeals court held that showing the film was not a constitutionally protected educational

activity. The judge concluded that by introducing a "controversial and sexually explicitly move

into a classroom of adolescents without preview, preparation, or discussion," Fowler "abdicated

her function as an educator" and demonstrated a "blatant lack of judgment" that constituted

"conduct unbecoming a teacher."" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 139-140.)

"Can a Teacher Be Punished for Using a Controversial Method That is Not Clearly
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Prohibited?

Not usually." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 140.)

In a Massachusetts case, a federal appeals court explained that a school may restrict a

teacher's classroom activities if two conditions are met. First, the restriction must be "reasonably

related to a legitimate pedagogical concern" According to the court, this will depend on "the age

and sophistication of the students, the relationship between teaching method and valid

educational objective and the context and manner of the presentation." Second, the school must

have notified the teacher about what conduct was prohibited....However, the court did not hold
that schools must "expressly prohibit every imaginable inappropriate conduct," since such a

requirement would be an "impossible and undesirable burden." Rather, the question is: Was it

reasonable for the teacher to know that her method was prohibited?" (Fischer, L., Schimmel, D.,

Stellman, L.R., 2007, p. 141.)

"When Are Controversial Methods Not Protected?

When methods are inappropriate for the age and maturity of the students., when they are

not supported by any significant professional opinion, or when they are prohibited by reasonable

school policy, they are not protected by academic freedom. " (Fischer, L., Schimmel, D.,

Stellman, L.R., 2007, p. 141-142.)

A New York court upheld the punishment of a tenured high school English teacher for

repeatedly using the words penis, clitoris, and other sexual imagery and for failing to follow

administrative directives to de-emphasize the sexual aspects of the literacy works he dealt with in

class. In rejecting the teacher's academic freedom defense, the court ruled that school officials

must be permitted to establish the curriculum in a way that does not offend community values."

(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 142.)

In a court case involving MySpace, Spanierman v. Hughes, No. 06-1196 (D. Conn.

September 16, 2008), Spaniermans behavior on his MySpace page was determined that it was

"likely to disrupt school activities." (Spaniermann v. Hughes, No. 06-1196, 2008, p. 35). It is on

this point that the court drilled down to Spanierman's contacts with his students. Excerpts of a
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number of exchanges with students were included in the opinion. And while to some these

exchanges may seem innocuous, the court concludedit was not unreasonable for the

Defendants to find that the Plaintiff's conduct on MySpace was disruptive to school activities.

The above examples of the online exchanges the Plaintiff had with students show a potentially

unprofessional rapport with students, and the court can see how a school's administration would

disapprove of, and find disruptive, a teacher's discussion with a student about "getting any"

(presumably sex), or a threat made to a student (albeit a facetious one) about detention."

(Neuburger, J.D., 2008, p. 2.)


"The school district judged that Spanierman's behavior on his MySpace page was "likely

to disrupt school activities." It is on this point that the court drilled down to Spanierman's

contacts with his students. Excerpts of a number of exchanges with students were included in the

opinion. And while to some these exchanges may seem innocuous, the court concluded as

follows:" (Neuburger, J.D., 2008, p. 2.)

"In another recent case, the so-called drunken pirate case, a teacher in training was

denied a teaching degree just prior to her graduation when officials at her teaching school found

a photo on her MySpace page showing her in a pirate hat, drinking alcohol. In Snyder v.

Millersville University, filed in federal court in Pennsylvania there was apparently no contact

with students, and it is disputed whether any students at the school ever saw the photo or the

MySpace page. The school district contends that Snyder's conduct as a student teacher was

unprofessional in ways unrelated to her MySpace page" (Neuburger, J.D., 2008, p. 3.)

These illustrate the disruptive test where the court has stated "[c]onduct that materially

disrupts class work or involves substantial disorder or invasion of the rights of others is not

immunized by the constitutional guarantee of freedom of speech." (Roth, S. V., Bennett, B.,

1997, p. 2.)

"Can a School Board Require or Prohibit the Use of Textbooks?

Yes...Thus when teachers and school boards have a legitimate disagreement about what
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tests to use, the boards have the ultimate authority to make these decisions in elective as well as

in required courses." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 135.)

"Are Curricular Disputes Matters of Public Concern?

Recent decisions indicate that courts do not consider disagreements between teachers and

school officials about curricular and curricular - related issues to be matters of public concern"

(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 135.) The court noted that academic

freedom "has never conferred upon teachers the control of public school curricula." (Fischer, L.,
Schimmel, D., Stellman, L.R., 2007, p. 136.) However, the court has also ruled that

[a teacher] could not be fired for discussing controversial issues. The judge

acknowledged that a teacher has a duty to be "fair and objective in presenting his personally

held opinions" and to ensure that different views are presented." (Fischer, L., Schimmel, D.,

Stellman, L.R., 2007, p. 136-137.)

"On the other hand, teachers have no right to promote views in school that contradict the

curriculum. This was illustrated by the 2000 case of Robert Dawns, a Los Angeles high school

teacher who wanted to post material in opposition to the school's bulletin boards that promoted

tolerance during Gay and Lesbian Awareness Month. A federal appeals court ruled that a school

may not only advocate tolerance but also may prohibit contrary speech by its teachers. The court

concluded: "Just as a school can prohibit a teacher from posting racist material" during Black

History Month, "it may prohibit [Downs] from posting intolerant materials during Gay and

Lesbian Awareness Month."" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 137.)

"Do Teachers Have the Right to Preach Their Religious Beliefs in School?

No." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 137.)

"Can a Teacher Be Punished for Failing to Submit Lesson Plans?


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Yes. In New York State, Richard Meyer, a tenured high school science teacher, was fined

$8,000 for repeatedly failing to provide comprehensive weekly lesson plans. According to the

court, the teacher's lesson plans were seriously deficient despite repeated counseling directives

over an extended periodthe school district had "final authority to review and assign grades"

and therefore did not violate [teacher's] academic freedom by requesting her lesson plans and

grade book." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 142.)

"Is It Legal for a School to Refuse to Rehire a Teacher Because of Disagreement

over Teaching Methods and Philosophy?


Probably. .. [a federal court ruled that it] is not which educational philosophy has greater

merit but whether a school "has the right to require some conformity" to its educational

philosophy and whether it may decline to hire a teacher whose methods are not conducive "to the

achievement of the academic goals they espoused" In ruling for the administration, the court

wrote that academic freedom does not encompass the right of a non tenured teacher to have her

teaching methods insulated from review." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p.

143.)

"A review of modern case law dealing with academic freedom reveals that it is no longer

as strong a defense as it once was for teachers. Recent decisions suggest that the concept of

academic freedom provides more protection for what is said outside the school as a private

citizen that for what is said inside the classroom. For the academic freedom defense to prevail for

classroom conduct, it must be shown that the teacher did not defy legitimate state and local

curriculum directives, followed accepted professional norms for that grade level and subject

matter, discussed matters that were of public concern, and acted professionally and in good faith

when there was no precedent of policy." (La Morte, M.W., 2008, p. 223.)

How do the Courts determine what is Protected Speech and what is not?

First of all, all the courts recognize that when speech rises to a level of public concern it

is protected. However, not all courts agree on what constitutes speech rises to the level of public

concern. Lastly, courts have granted school boards the right to control teachers speech when it is
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related to their personal interests. (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 129.)

Once the courts have determined that the speech is protected, then they use the Pickering

test. This is an important point. The courts determine what speech is of public concern not the

individual. If a high school geometry teachers is out with friends on the weekend and speaks to

his or her friends about a school related issue. Do his friends see him as Joe Q. Public or a high

school teacher? Thus the court asks (1) Are the complaints involved matters of public concern;

(if yes then) [the] Pickering Test - balancing the teacher's interest as a citizen in discussing
public issues against the board's interest as an employer in promoting efficiency. (Fischer, L.,

Schimmel, D., Stellman, L.R., 2007, p. 130.) This second determination, the Pickering test is b

..based on: (1) the need for harmony in the workplace; (2) the need for a close working

relationship between the speaker and superiors and whether the speech in question undermines

that relationship, especially if personal loyalty and confidence are involved; (3) whether the

speech impedes an employees ability to perform his or her daily responsibilities; (4) the time,

place, and manner of the speech; (5) the context in which a dispute arises; (6) the degree of

public interest in the speech; (7) and whether the matter was one on which debate would be vital

to informed decision making." (La Morte, M.W., 2008, p. 211; O'Day, T.,2008). The final

question, [w]as the protected speech a "substantial or motivating factor" in the board's action

against him/her, if yes, then judgment usually goes to the teacher if other evidence is involved

and the decision would have been the same then judgment goes to the board." (Fischer, L.,

Schimmel, D., Stellman, L.R., 2007, p. 130.)

The courts have also clearly stated that if the speech cannot be determined to a greater

public concern then government employers should feel comfortable in managing their

organizations and not be concerned about judiciary oversight (La Morte, M.W., 2008, p. 210).

Employers must have wide discretion and control over the management of its personnel and

internal affairs. This includes prerogative to remove employees whose conduct hinders efficient

operation and to do so with dispatch. (Griffith, M. R., 2007, p.1.) HoweverBecause of the
Speech and Technology 20

enormous variety of fact situations in which critical statements by...public employees may be

thought by their superiors...to furnish grounds for dismissal, we do not deem it either appropriate

or feasible to lay down a general standard against which all such statement may be judged." (La

Morte, M.W., 2008, p. 211.)

Acceptable Use Policies

The Spanierman case dealt with current technology and social networking as it relates to

Freedom of Speech. Social networking and email are new facets to look at when considering
protected speech. The Wisconsin Association of School Boards (WASBO) had a brief developed

by Lathrop and Clark for guidance on what an acceptable use policy or AUP should contain.

Such policies dictate the parameters school district employees have when using district

technology. These qualities will then be tested against the AUP for the Oregon School District.

The following issues highlight a well written AUP: (1) a purpose statement; (2) a

descriptions of security measures; (3) an explanation of the limitations on user privacy rights; (4)

a statement prohibiting use related to discrimination, harassment, and defamation; (5) copyright

infringement prohibitions, (6) a description of other unacceptable uses; [7] an explanation of

monitoring, supervision, enforcement, and penalties, and (8) acknowledgement by the users of

receipt of the AUP." (Julka, M. J., Curry, J.H., Rohrer, D.E., 2008, p. 1.)

The introduction of the AUP should have an explanation that covers all the internal and

external systems that make up the system. This would include cell phones, pda systems, laptops,

the routers, printers, etc. as well as externally contracted providers and the systems they use to

assist the district in fulfilling the mission of educating students. Furthermore it should state that

students and staff use the various systems to meet and support the district mission (Lathrop &

Clark, LLP, 2008, p. 1.)

Limitations are also highly recommended. Starting with the explicit purpose of

supporting the districts mission, limiting use of these systems is crucial. This will help reduce

the chance of personal use such as selling items for any kind of economic benefit. (Julka, M. J.,
Speech and Technology 21

Curry, J.H., Rohrer, D.E., 2008, p. 2.) In the Oregon School District the technology department

has developed forums for staff to place items for sale and or purchase, sort of an internal

electronic swap meet. However, enforcement of this is haphazard, especially when it comes to

Badger Football Tickets. This is an important point, having a policy prohibiting economic gain,

yet not enforcing it, creates a problem when a staff member is disciplined for something and

others have not.

Within the purpose statement it should be very clear that the system is a privilege and that

there is no expectation of privacy. It should be clear that Internet Use and E-Mail are not private
in nature and subject to district oversight. In addition, it should state that all aspects of the system

used by district officials can (a) inspect information stored on its computer system, including

district computers, whether desktop or laptop (b) search and read e-mail messages stored on

either the district's computer network or by the district's contracted computer services; and (c)

review electronic communications, including the current range of electronic communication

devices owned and used by the school district, as well as new devices and communication

methods that bay be put in use." (Julka, M. J., Curry, J.H., Rohrer, D.E., 2008, p. 3-4.)

Furthermore, rules should be established for governing behavior when using personally

identifiable information as well as student records (Julka, M. J., Curry, J.H., Rohrer, D.E., 2008,

p. 2-3.)

Harassment has increased in the virtual world with students as well as adults. It is

extremely important to maintain a harassment and discrimination free environment as it pertains

to the districts technology. Districts must be conscientious of the fact that actions by their

employees could be attributed to the districtand employers have a duty to take effective

measures to stop co-employee harassment. (Julka, M. J., Curry, J.H., Rohrer, D.E., 2008, p. 4-

5.)

School officials should regularly monitor the computer usage of all users. Excessive use

of e-mail may lead to a disruption of a staff members ability to perform their job and meet

student needs. Districts must also be aware of the bargaining agreements they have with the
Speech and Technology 22

various unions to be sure any policy adopted doesnt conflict with these agreements. (Julka, M.

J., Curry, J.H., Rohrer, D.E., 2008, p. 6-7.) In addition, when students are on campus using

district computers or related communication technologies, it should be required that they are

supervised. (Julka, M. J., Curry, J.H., Rohrer, D.E., 2008, p. 7.)

A clear process should be identified and followed when a user violates the AUP or for

that matter other policies or handbooks that users are expected to follow. The procedures should

include (1) identify the person(s) in the organization who should be notified upon discovery of a

violation of the AUP; (2) state how the person is to be notified of the violation; and (3)
emphasize the need to preserve a hard-copy version of a document, such as e-mail message or

images on a monitor screen, that substantiate the violation." (Julka, M. J., Curry, J.H., Rohrer,

D.E., 2008, p. 7.)

The following are excerpts, which highlight some of the areas that meet the

recommendations of the Lathrop and Clark LLP legal brief for WASBO.

771.02 ECS is provided to staff/employees to assist in instruction, perform work

assignments, conduct research, and communicate with others. Access to ECS is a privilege and

not a right. The district expects the staff/employees will use the ECS in a responsible and ethical

manner and in conformance with the following rules. The district reserves the right to restrict or

revoke any staff member/employee authorization for use and access to ECS at any time for any

reason. (Oregon Schl.Dist. B.O.E., 2007, p. 1)

771.07 The District shares responsibility for control over access to inappropriate Internet

materials. In light of that responsibility the District utilizes hardware and software that is

designed to filter and block inappropriate sites and high risk activities. The District reserves the

right to block sites that do not enhance classroom activities. This filtering will at a minimum

meet the requirement of the Childrens Internet Protection Act to provide protection from

obscene, pornographic and other materials considered harmful to minors (Oregon Schl.Dist.

B.O.E., 2007, p. 3)
Speech and Technology 23

771.04K The districts ECS is the sole property of the district. All electronic

communications transmitted by, received from, or stored in the districts ECS are owned by the

district. Employees should have no expectation of privacy with regard to the use of the districts

ECS or information, messages, files and other data stored on these systems. The district may

access, search, monitor and/or disclose to appropriate authorities any communication at any time

without prior notice being given. Nothing residing in an employees computer system or files or

the districts e-mail system will be deemed personal, private or confidential. (Oregon Schl.Dist.

B.O.E., 2007, p. 2)
771.03A Downloading, displaying, viewing, accessing or attempting to access, storing

or transmitting any images, cartoons, messages or material which are sexually explicit or that

may be construed as threatening, harassing, offensive or intimidating to others based upon

gender, race, national origin, age, disability, religion, sexual orientation or any other basis

protected by applicable law; (Oregon Schl.Dist. B.O.E., 2007, p. 1)

771.03E Use which is illegal, including the violation of copyright, gambling and

pornography laws; (Oregon Schl.Dist. B.O.E., 2007, p. 1)

Up to this point a framework of case law on freedom of speech along with the guidelines

for an AUP has been established. The following scenarios will hopefully, help deepen your

understanding as well as foster more questions on freedom of speech as it pertains to district

technology use.

SCENARIO 1

Remember in 'Pickering v. Board of Education 391 U.S. 563 (1968), a Pickering wrote a

letter to the newspaper which had criticism of the Board of Education and Superintendent, with

regard to allocation of funds. He was dismissed for righting this letter and proceeded to ask for a

review of the board of educations decision in circuit court, which upheld the dismissal. Pickering

then appealed to the Illinois Supreme Court, which upheld the dismissal as well. Finally, he

appealed to the U.S. Supreme Court stating his dismissal was unconstitutional because his
Speech and Technology 24

speech was protected by the First and Fourteenth Amendments. The Court reversed the decision

and voted in favor of Pickering. (Pickering v. Board of Education, 391 U.S. 563 (1968), p. 1)

What if Pickering was at home but used the school email account? If the districts AUP

states Taking the Pickering case, were Pickering to write that letter via email, using the school

districts computer system would it make a difference?

SCENARIO 2

In Garcetti v. Ceballos , 547 U.S. 410 (2006), is a decision by the Supreme Court of the

United States involving the First Amendment free speech protections for government employees.
The plaintiff in the case was a district attorney who claimed that he had been passed up for a

promotion for criticizing the legitimacy of a warrant. The Court ruled that because his statements

were made pursuant to his position as a public employee, rather than as a private citizen, his

speech had no First Amendment protection (Garcetti v. Ceballos, 547 U.S. 410, 2006, p.14;

Wikipedia Contributors, 2008, p.1). Were this involving a school district employee, would using

a district computer to write his memo changed the outcome?

SCENARIO 3

A well respected teacher sends an email from his home computer to a local media station

complaining of unruly children and discipline in a school. Is the person acting in their official

duties? If data shows that there is not as severe situation as portrayed, yet there is a public outcry,

does that constitute a disruption of the governmental agency? If so, would the district wish to

pursue disciplinary action? If so, what type of action? What if the community bought in to this

and an administrator was asked to leave or was moved from his/her assignment because the

public lost faith him due to the employees accusations that were determined to be lacking

factual evidence?

SCENARIO 4

A staff member in a school building questions the competency of another staff member.

In frustration, the staff member emails others in the building asking for their input on the

competency of this other staff member. The person sending the email is also a member of the
Speech and Technology 25

bargaining unit for the local union. What do you do?

CONCLUSION

Regardless of where speech takes place it is not the person who determines whether it is

protected or not, the court determines that based on several factors. If dismissing an employee

and the speech is protected it cannot, in some cases, be the sole reason for dismissal. If speech is

not protected then it is not the courts place to decide the outcome of a situation. If it is protected

speech then the balancing tests must be used.

Although it appears the courts have ruled in favor of restricting employee speech when it

is not with aligned curriculum or within the scope of their position or disrupting the effectiveness

and efficiency of the organization, there is still the elephant in the room. The potential political

cost to remove a member of the union. What are those ramifications district wide? If the teacher

has alienated many staff then probably not too much, however, are you setting a precedent? If

you are not consistently enforcing action against inappropriate speech, that too has a potential to

create a negative climate within your building or district.

Reviewing your organizations AUP, using the Lathrop and Clark LLC AUP guidelines

should be a must do task in the near future, [a]s online tools of communication continue to

expand through blogs, forums and social sites, these will continue to bring more challenges with

speech as it flows between the various constituents of a school district. (Neuburger, J.D., 2008, p.

3.)
Speech and Technology 26

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