first amendment issues part 1. what can school officials say and do? 1st amendment issues in schools...

First Amendment Issues Part 1

What Can School Officials Say And Do

1st Amendment Issues In Schools

Randall C Farmer Esq

What Can School Officials Say And Do 1st Amendment Issues In

Schools

Overview

bull Public Employee Free Speech IssuesbullWhat is a Matter of public concern

bull Political Activities

bull Religious Activity

bull Internet Speech

Pop Quiz

bull Can a public employee be disciplined for speaking out on a matter of public concern

bull Can teachers or administrators express their personal religious beliefs in the classroom school or at work

bull Can employees engage in unionizing activity during work hours

bull Can a public employee be disciplined for speech on the internet

First Amendment

bull 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

Translation

bull First Amendment applies a prohibition on Congress

bull Prohibition is extended to states and local governments eg school districts through the 14th Amendment

bull Prohibition impacts four areas of civic life religion speechpress association and petition government

Starting Point For Free Speech Garcetti v Ceballos

bull Supreme Court case decided in 2006

bull Generally two-part rule

1048708 Was the employeersquos speech on a ldquomatter of public concernrdquo

1048708 If not there is no cause of action in the First Amendment

Garcetti Continued

If the speech is on a ldquomatter of public concernrdquo thenhellipndash Does the government

entity have good cause for treating the employee differently from any other

member of the general public

This becomes a balancing test ndash the employeersquos right to speak against the governmentrsquos concerns regarding the workplace etc

Background on Garcettibull Ceballos worked for the DA and

reviewed the affidavit and determined that the affidavit contained serious misrepresentations from the sheriffrsquos deputies

bull Ceballos relayed his concerns about the affidavit to his supervisors via a memo and recommended dismissal of the case

bull Called as a witness by defense about his review of the affidavit

bull Ceballos reassigned to a trial deputy position then transferred to another courthouse and denied a promotion

bull Brought First Amendment Claim

Problem With First Amendmentbull Clear as mudbull Rarely any black letter lawbull Dealing with shades of graybull Difficult for administrators to know

when an employee is speaking as a private citizen or pursuant to job duties

bull Cannot predict what a judge is going to do

bull Scale more an employee has discretion responsibility and visibility eg superintendent or high level administrators less likely person will be seen as a private citizen Actions associated with position

Three Categories of Speechbull Speech as an Employee ndash Not protected ldquoWhen public

employees make statements pursuant to their official duties the employees are not speaking as citizens for First Amendment purposes rdquo

bull Speech on Matters that are NOT of public concern ndash Not Protected ldquoIf a school employee does not speak on a matter of public concern The employee has no First Amendment cause of action ldquo

bull Speech as a citizen on matters of public concern ndash Sometimes Protected If the employee ldquospeaks as a citizen on a matter of public concernrdquo then there is the possibility of a First Amendment claim The employer must show that it had an adequate justification for treating the employee differently from any other employee

SO WHEN IS AN EMPLOYEE NOT A PRIVATE CITIZEN

WHAT IS A MATTER OF PUBLIC CONCERN

What is NOT a matter of public concern generally

bull Look at job duties and context of speech

bull Speech related to performance of employeersquos job duties eg internal office disputes

bull Classroom speech no academic freedom and no right to stray from curriculum Most courts rule that teachers do not have the right to trump mandated curriculum eg no right to show R rated movie

ExamplesGreen v Barrett 2007 US App LEXIS 62008 (11th Cir 2007) (No First Amendment

protection for testimony provided by Chief Jailer regarding jail conditions) Morris v Crow 142 F 3d 1379 1381 1382 (11th Cir 1998) (ldquoThe mere fact that Morrisrsquo

statements were made in the context of a civil deposition cannot transform them into constitutionally protected speechrdquo)

Dennis v Putnam County Bd of Educ 260 Fed Appx 171 3 (11th Cir 2007) (statements regarding budget to county commissioner made pursuant to duties as school districtrsquos fiscal officer were not protected)

Vila v Padron 484 F3d 1334 1340 (11th Cir 2007) (No claim for retaliation under the First Amendment for the Vice President of External Affairs who held a policy making position and objected to certain improprieties in the community collegersquos financial dealings)

Abdur-Raham v Walker 2008 US Dist LEXIS 25349 20 (ND Ga 2008) (No First Amendment retaliation claim permitted when employees learned of the problems while performing their job responsibilities)

Miller v Houston Co Bd of Educ 2008 US Dist LEXIS 19394 36 (MD Ala 2008) (No First Amendment retaliation claim when student teacher made complaints about IEPs pursuant to her official duties)


What Can School Officials Say And Do 1st Amendment Issues In Schools


Overview

Pop Quiz

First Amendment

Translation


Garcetti Continued

Background on Garcetti

Problem With First Amendment

Three Categories of Speech

Slide 13


Examples

What Can School Officials Say And Do

1st Amendment Issues In Schools

Randall C Farmer Esq


Schools

Overview





Pop Quiz





First Amendment


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Overview

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Garcetti Continued




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Examples


Schools

Overview





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First Amendment


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Garcetti Continued



































Overview

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Garcetti Continued




Slide 13


Examples

Overview





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First Amendment


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Garcetti Continued



































Overview

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First Amendment

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Garcetti Continued




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First Amendment


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Garcetti Continued



































Overview

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Garcetti Continued




Slide 13


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Garcetti Continued



































Overview

Pop Quiz

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Garcetti Continued




Slide 13


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Translation









Garcetti Continued



































Overview

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Garcetti Continued




Slide 13


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Garcetti Continued



































Overview

Pop Quiz

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Garcetti Continued




Slide 13


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Overview

Pop Quiz

First Amendment

Translation


Garcetti Continued




Slide 13


Examples

first amendment issues part 1. what can school officials say and do? 1st amendment issues in schools...

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