Professional Documents
Culture Documents
Chris Telfer
Edgewood College
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
The first amendment of the United States constitution grants all individuals the right of
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
Speech and Technology 5
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
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.
"Can a School Board Ever Restrict Teachers' Rights to Publicize Their Views?
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.,
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.,
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,
"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.)
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
Speech and Technology 7
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
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.)
According to Connick, when they relate to any matter of political, social, or other
Speech and Technology 8
concern to the communityit also depends on the content, form and context." (Fischer, L.,
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,
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.,
- 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
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.,
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,
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.)
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
"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
Speech and Technology 11
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.)
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
Academic freedom is an area of free speech that educators believe is a fundamental right
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
Speech and Technology 12
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
"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
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
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.)
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
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
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,
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
Speech and Technology 14
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.)
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.)
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
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
Speech and Technology 15
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.,
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.,
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."
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
Speech and Technology 16
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."
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
"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.)
Yes...Thus when teachers and school boards have a legitimate disagreement about what
Speech and Technology 17
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.)
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.,
"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?
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.)
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
Speech and Technology 19
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.,
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
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
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 &
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
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)
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
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
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,
The following are excerpts, which highlight some of the areas that meet the
recommendations of the Lathrop and Clark LLP legal brief for WASBO.
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
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
gender, race, national origin, age, disability, religion, sexual orientation or any other basis
771.03E Use which is illegal, including the violation of copyright, gambling and
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
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
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
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
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
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
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
References
Connick v. Myers, 461 U.S. 138 (1983). Retrieved 10/26/2008, 2008, from
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/connick.html
Williams v. Vidmar Et. Al., No. C 04-04946 (N. Ca. S.J. April 28, 2005).
Egelco, B. Supreme court denies hearing for fired 'honk for peace' teacher | CommonDreams.org.
http://www.commondreams.org/archive/2007/10/02/4253
Fischer, L., Schimmel, D., & Stellman, L. (2007). Teachers and the law (7th ed.). Boston:
Pearson/A & B.
Harrison v. Racine Unified School District, 272 F3d 964 (2001). Retrieved 11/15/2008, from
http://www.ca7.uscourts.gov/tmp/IG1FG7RR.txt
Egelco, B. (2007). Honk for peace case tests limits on free speech. SFGate. Retrieved
file=/c/a/2007/05/14/MNG9PPQGVV1.DTL
http://www.supremecourtus.gov/opinions/05pdf/04-473.pdf
Griffith, M. R. (2007). The Garcetti test: limiting a public employee's freedom of speech and the
33791399_ITM
Jo, S. H. (2002). "The legal standard on the scope of teachers' free speech rights in the school
setting." Journal of Law and Education (Oct 2002): 13. Retrieved 10/26/2008, from
Speech and Technology 27
http://findarticles.com/p/articles/mi_qa3994/is_200210/ai_n9085282/print?
tag=artBody;col1
Julka, M. J., Curry, J.H., Rohrer, D.E. (2008). Elements of an effective acceptable use policy.
La Morte, M. W. (2008). School law : Cases and concepts (9th ed.). Boston: Pearson/Allyn and
Bacon.
Law offices of Spector, M. Y. and L. L. P. Minney (2005) Teachers' right to freedom of speech
http://www.smymcharterlaw.com/pdf/Freedom_of_Speech_Legal_Alert_(CHP)_051205.
pdf.
http://www.law.cornell.edu/constitution/constitution.billofrights.html
http://www.pbs.org/mediashift/2008/10/teacher-fired-for-inappropriate-behavior-on-
myspace-page289.html.
Mount Healthy School District v. Doyle, 429 U.S. 274 (1977). Retrieved 10/26/2008, from
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/mthealthy.html
O'Day, T. (2007). Public Employee Speech in the Workplace. School Law in Wisconsin.
Pickering v. Board of Education, 391 U.S. 563 (1968). (1968). Retrieved 12/9/2008, 2008, from
http://www.bc.edu/bc_org/avp/cas/comm/free_speech/pickering.html
Roth, S. V., & Bennet, B. (1997). Freedom of speech in high schools. LSC Members' Brief,
Speech and Technology 28
Spanierman v. Hughes, No. 06-1196 (D. Conn. September 16, 2008). Retrieved 11/9/2008, from
http://www.ctemploymentlawblog.com/uploads/file/hughes.pdf
Stover, D. (2006). School boards, teachers' free speech rights often at odds, National School
http://74.125.95.132/search?q=cache:c-YBLMOGxIsJ:www.nsba.org/site/view.asp
%3FCID%3D1793%26DID%3D37661+School+boards,+teachers
%27+free+speech+rights+often+at+odds&hl=en&ct=clnk&cd=1&gl=us&client=firefox-
http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=92-1883.01A
Watts v. United States, 394 U. S. 705 (1969). Retrieved 10/12/2008, 2008, from
http://supreme.justia.com/us/394/705/case.html
Wikipedia contributors. Garcetti v. Ceballos, 547 U.S. 410 (2006 ). Retrieved 12/5/2008, 2008,
from http://en.wikipedia.org/wiki/garcetti_v._ceballos?oldid=248108211
Williams v. Vidmar, No. 04-4946 (N.D.Cal. Apr. 28, 2005). Retrieved 11/9/2008, from
http://www.telladf.org/UserDocs/WvV_MTD_Order.pdf
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Additional Resources
Branti v. Finkel Et. Al., 445 U.S. 507 (1980). Retrieved 10/26/2008, from
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/branti.html
CBS 3. Pa. teacher fired for inappropriate E-mails. Retrieved 11/9/2008, 2008, from
http://cbs3.com/topstories/Spring.Ford.Area.2.664508.html
Employee use, misuse, and abuse of social network sites. Retrieved 11/15/2008, 2008, from
http://www.nsba.org/SecondaryMenu/TLN/TechnologyrelatedarticlesfromSchoolBoardN
ews/SocialNetworkSitesIA08.aspx
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/employpunishment.html
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/publicemployees.htm
Hyman, R. T. (2002). Protected classroom speech of public school teachers: Pickering, its
progeny, its conflicts and policy issues. Illinois School Law Quarterly, Retrieved
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=262&invol=390
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rankin.html
Rappaport, D. (1993). Tinker vs. des Moines : Student rights on trial. New York, NY:
HarperCollins.
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