Teaching in a Democracy: Why the Garcetti Rule Should Apply to Teaching in Public Schools

Paul Forster, Teaching in a Democracy: Why the Garcetti Rule Should Apply to Teaching in Public Schools, 46 Gonz. L. Rev. 687

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I. Introduction

Courts of appeals have long disagreed over how to resolve First Amendment claims that involve teaching in public schools; some courts have applied employee speech doctrine while others have applied rules from the student speech context. Despite the different analyses, both approaches granted teachers some limited First Amendment protection for their classroom speech, typically on the condition that the speech did not violate pre-existing curricular guidelines or school rules. But the Supreme Court altered the employee speech framework in Garcetti v. Ceballos by holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[1] The majority reasoned that statements made pursuant to official duties count as government speech about which the government may dictate its message.[2] At the same time, the Court explicitly declined to decide whether its holding should extend to scholarship or teaching.[3] If the Garcetti rule does apply to teaching, teachers will no longer receive any protection for their classroom speech, and schools will have plenary power to dictate the content and style of teaching.

This article analyzes whether the Garcetti standard should apply to teaching in primary and secondary public schools. Part II examines pre-Garcetti cases that addressed government employee speech and student speech, and it explores how the lower courts have applied both lines of case law to situations that involve teaching. Part III discusses Garcetti’s impact on employee speech doctrine. Part IV addresses arguments for and against applying the Garcetti rule to teaching in public schools, exploring how the issue fits within existing Supreme Court precedent and also whether traditional First Amendment theories suggest a result. It concludes, first, that courts should analyze teachers’ classroom speech within the employee speech framework because teachers are government employees. If teachers are to be granted greater speech rights than other government employees, courts should make clear that they have created an exception to Garcetti, rather than pretending that teachers and students are similarly situated. Second, proceeding within the employee speech rubric, the classroom speech of public school teachers should not receive First Amendment protection from employer discipline. This is so because it is in students’ best interests to vest ultimate power over the classroom with democratically accountable school boards, and also because teaching qualifies as government speech about which the government should be able to dictate its own message. After concluding that Garcetti should apply to teaching in public schools, the article explores a few problems that may arise in practical attempts to determine what speech qualifies as “teaching.” Finally, Part V distinguishes teaching at the university level and notes that it should likely receive at least some First Amendment protection.%CODE2%%CODE3%

II. Pre-Garcetti Cases

A. Employee Speech Cases

To understand the pre-Garcetti circuit split regarding treatment of teachers’ classroom speech, one must understand how pre-Garcetti jurisprudence treated employee speech claims. For many years, courts held that the First Amendment did not protect public employees from adverse employment decisions, rather conceptualizing employment as a privilege that could be conditioned on the surrender of certain rights. [4] As Justice Holmes put it, a police officer may have had a constitutional right to talk politics, but he had no constitutional right to be a police officer.[5]

In the second half of the twentieth century, the Supreme Court reversed course, and announced a balancing test in Pickering v. Board of Education as the new guiding principle for public employees’ speech rights.[6] In Pickering, a teacher wrote a letter to the editor criticizing his school board’s allocation of funds between educational and athletic programs, so the board fired the teacher.[7] The Court held that the First Amendment protected the teacher’s speech.[8] It balanced the teacher’s interest as a citizen commenting on matters of public concern against the board’s interest in efficiently managing the school system.[9] Reasoning that the teacher’s conduct did not impede his day-to-day teaching duties, the Court concluded that “the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.”[10]

Later, Connick v. Myers clarified that courts need not apply the Pickering balancing if employee speech did not embrace a “matter of public concern.”[11] In that case, an Assistant District Attorney resisted a transfer to a different section within the office, complained about the office’s transfer policy, and circulated a questionnaire about office morale.[12] She was fired as a result.[13] The Court held this speech unprotected, explaining that the First Amendment does not protect public employees from adverse employment decisions when they speak merely “as an employee upon matters only of personal interest.”[14] After Connick, employee speech analysis proceeded with two inquiries: at the threshold, whether the employee had commented on a matter of public concern, and if so, whether the Pickering balancing weighed in favor of employee or employer.[15]

B. Student Speech Cases

Student speech jurisprudence is the other possible source for the law governing how the First Amendment applies to teaching. However, a somewhat incoherent collection of cases governs student speech. The Supreme Court initially announced First Amendment protection for student speech in Tinker v. Des Moines School District.[16] In that case, a school suspended students for wearing black armbands to school in protest of the Vietnam War.[17] The Court held that the speech was protected, announcing that “where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”[18] Although Tinker’s holding reads like a general rule, the Court has not treated it as such, and indeed has retreated from the holding in later student speech cases, generally upholding schools’ power to regulate student speech.[19] For instance, in Bethel School District v. Fraser, the Court determined that protection did not extend to a student who had delivered an innuendo-laden speech at a school assembly.[20] The Fraser opinion held that the First Amendment does not protect speech at an official school assembly that is lewd, vulgar, and offensive.[21]

As Fraser may have foreshadowed, the Court soon after clarified that the Tinker rule does not apply to school-sponsored student speech. In Hazelwood School District v. Kuhlmeier, a high school principal withheld from publication two pages of a student-run newspaper, because of his concerns about material concerning sexual activity and birth control, as well as references to individual pregnant students.[22] Holding the speech unprotected, the Court reasoned that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”[23] Most recently, the Court ruled in Morse v. Frederick—the “BONG HiTS 4 JESUS” case—that the First Amendment does not protect speech at a school-supervised event if the speech can be reasonably viewed as promoting illegal drug use.[24]

C. Circuit Split: The First Amendment Standard for Classroom Speech

Long before Garcetti came along, the circuits split over what First Amendment standard governs the classroom speech of teachers.[25] Some circuits applied the Pickering test from employee cases,[26] others extended student speech cases,[27] and a few merged elements of the two.[28]

Circuits applying the Pickering test have generally found that school interests in overseeing the curriculum and teaching methods outweigh teacher interests in speech.[29] For example, the Fourth Circuit held en banc that selecting a play for drama class is not a matter of public concern and thus not protected.[30] Even where the speech involves a matter of public concern, it will probably not be protected if it strays beyond the bounds of the curriculum.[31] For instance, courts have held that teachers had no right to present in class their personal points of view on evolution[32] or the Vietnam War.[33]

Turning to cases that have examined teaching under student speech standards, at least one case has applied the Tinker standard to student speech, asking whether the speech would materially and substantially interfere with the requirements of appropriate discipline in the operation of the school. In James v. Board of Education, a case that arose only a few years after Tinker, the Second Circuit held that a high school teacher had a right to wear a black armband similar to those at issue in Tinker.[34] The court opined that school authorities could not censor teachers simply because they disagreed with the teacher’s views, especially when “speech does not interfere in any way with the teacher’s obligations to teach, is not coercive and does not arbitrarily inculcate doctrinaire views in the minds of the students.”[35] Of course, the age of the James case and its factual similarity to Tinker probably minimize its importance.[36] The case followed closely on the heels of Tinker—before the Supreme Court’s subsequent retreat from that precedent—and it involved speech nearly identical to that in Tinker.[37] Indeed, the Second Circuit has seemingly abandoned its practice of applying Tinker in teacher speech cases. That said, it does persist in analyzing the cases within the student speech paradigm, applying Hazelwood instead.[38]

Other circuits have also employed the Hazelwood standard[39] to teachers, asking whether the school has a “legitimate pedagogical interest” in exercising editorial control over the style and content of the speech.[40] Various justifications have been advanced for this practice. For instance, the language of the test is tailored to the classroom context,[41] as opposed to the more general Pickering balancing test.[42] Some have expressed a concern that classroom speech implicates values of academic freedom not raised when considering the rights of other government employees.[43] This line of reasoning, that Hazelwood somehow provides greater protection than Pickering, seems odd in light of Hazelwood’s suggestion of rational basis review. After all, a “legitimate pedagogical interest” is merely a legitimate interest—that familiar parlance of highly deferential rational basis review[44]—in a pedagogical context. With student speech, school censorship receives this highly deferential review only with regard to “school-sponsored expressive activities,”[45] but teaching is always a school-sponsored activity. Indeed, one circuit has asserted that regulating the content of a curriculum is “by definition a legitimate pedagogical concern.”[46] Not surprisingly, therefore, courts applying the Hazelwood standard to classroom speech have predominantly sided with school administrators.[47]

In one sense, then, the split seems somewhat semantic because courts have consistently held that public schools have the right to dictate both what is taught and how it is taught. [48] Simply put, courts have held that schools have broad discretion not only to dictate a curriculum[49] but also to control how teachers convey that curriculum.[50] They may “both write the script and demand that teachers perform it.”[51] For example, a school may both dictate the reading list that a teacher uses[52] and also prescribe the pedagogical techniques that the teacher uses in teaching the books.[53]

On the other hand, cases on both sides of the split have sometimes extended protection to a teacher’s in-class speech.[54] These cases tend to involve situations in which the teacher has been fired despite staying within the bounds of the prescribed curriculum.[55] For instance, a recent Sixth Circuit case held that a school violated the First Amendment when it fired a teacher for using material approved by the school board and purchased by the district.[56] But outside of cases like these, courts seem unsympathetic to teachers claiming an individual right to trump the school concerning what is taught or how to teach it.[57] Thus, in choosing between approaches taken by the courts of appeals, the main practical inquiry seems to be whether and to what extent the First Amendment should protect teaching that, although perhaps controversial, does not contravene the curriculum or other school rules.[58] Some commentators have argued that none of the approaches outlined by courts are sufficiently protective of teacher speech and a new standard should be forged.[59]

III. Garcetti v. Ceballos Changes the Employee Speech Landscape

In 2006, the Supreme Court drastically altered employee speech analysis with Garcetti v. Ceballos, by holding that that the First Amendment does not protect any speech made as a part of one’s official job duties.[60] Richard Ceballos, a deputy district attorney in Los Angeles, was asked by a defense attorney to investigate the accuracy of an affidavit used to obtain a search warrant.[61] After visiting the site described by the affidavit, Ceballos came to believe that a police officer had made serious misrepresentations.[62] The prosecutor wrote a memo that recommended dropping the case, and after his office declined to do so, testified to the affidavit’s inaccuracies at a hearing on the defendant’s motion to traverse.[63] The district attorney’s office allegedly retaliated against the plaintiff by transferring him and withholding promotion.[64]

The Court held that the First Amendment did not apply to the plaintiff’s situation.[65] It asserted that for Pickering’s balancing to apply, the employee must have spoken both 1) as a citizen rather than as an employee and 2) about a matter of public rather than private concern.[66] Here, although the plaintiff’s statements may have involved a matter of public concern, the Court reasoned that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[67] Because the deputy district attorney spoke pursuant to an investigation required by his official duties, the First Amendment did not protect his speech.[68]

That said, Garcetti expressly declined to decide whether its holding should extend to “scholarship or teaching,” noting that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests.”[69]

IV. Extending Garcetti: Whether Teaching in Public Schools Should Receive First Amendment Protection

A. Defining “Teaching”

Before arguing about the proper level of First Amendment protection for teaching, it is important to define the sort of speech with which we are concerned. In referring to “teaching” or “classroom speech,” this article means speech in furtherance of a teacher’s official teaching duties, the quintessential examples being a teacher’s lecturing or moderating class discussion in a classroom setting.[70]

Obviously, not every word spoken in a school constitutes classroom speech. Many teachers’ jobs include administrative duties or other duties unrelated to scholarship or teaching, and courts already agree that Garcetti applies to speech in the course of teachers’ administrative duties. For instance, the regular Garcetti analysis applies to a teacher’s complaints to the administration[71] or his defense of a student at a disciplinary tribunal,[72] assuming that those tasks comprise official duties. Other teacher speech may occur outside the performance of any official duties and therefore receive the greater protections of Pickering.[73] For example, a private conversation between a teacher and a principal about racism in the school would not qualify as classroom speech, nor would social conversations that occurred purely between school employees.[74]

Teaching should also be distinguished from scholarship, the other possible exception to the Garcetti rule.[75] Different sorts of First Amendment protection may be appropriate for scholarship than for teaching because scholarship requires the ability to freely pursue research and candidly share results, while teaching primarily involves the conveyance of information prescribed by the curriculum.[76] Although teaching and scholarship may often be intertwined at the university level, the same cannot usually be said of public primary and secondary schools.[77]

B. Teaching Should Be Analyzed Within the Employee Speech Rubric

Before considering whether Garcetti should apply to teaching, one must first establish that teaching falls within the employee speech rubric. Several arguments support this conclusion. First, and most obviously, teachers are government employees and not students. Student speech cases like Hazelwood and Tinker address not only the well-functioning of schools, but also student interests.[78] Students are a captive audience, and teachers exercise control over them under color of government authority. In fact, stretching the Hazelwood test to cover teacher speech threatens negative consequences for the protection of student speech because extending the test to teachers would necessarily require watering down the amount of protection it provides.[79] Those who advocate treating students and teachers similarly point out that giving too much control to schools could chill the speech of teachers, preventing them from effectively interacting with and teaching their students.[80] Even if this were true, a need for interaction does not necessarily signal equal First Amendment treatment for both parties to the conversation.[81] Otherwise, all government employees would receive full First Amendment protection any time their jobs required interacting with the public.

Furthermore, Garcetti implies that the Court would analyze teaching within the employee speech framework. By expressly declining to decide whether the Garcetti rule applies to teaching, the Court suggested that if teachers are to receive special treatment, it should be as an exception to Garcetti rather than as a shoe-horning into the student speech realm.[82]

C. Garcetti Should Apply to Teaching in Public Schools

1. Framing the Analysis

After establishing that courts should analyze teaching as employee speech, the question remains whether Garcetti applies. If so, teachers would not receive First Amendment protection for most of their interactions with students. If not, courts might decide to apply some sort of balancing test to classroom speech even though the speech comprised an official job duty.[83] An alternative test might, for instance, extend some protection to classroom speech on matters of public importance or to teaching on matters that the curriculum did not expressly forbid.[84] This article argues that, at least in the case of primary and secondary teaching, courts should extend Garcetti to teachers’ classroom speech.

2. Lower Courts Addressing the Issue

Several circuits have avoided resolving whether Garcetti applies to teaching,[85] but both circuits to directly analyze the issue have extended Garcetti to the classroom. In the first, Mayer v. Monroe County Community School Corp., a probationary elementary school teacher sued after her school declined to renew her contract.[86] According to the teacher’s allegations, the school made the adverse decision because of a controversial statement she made in class.[87] During a current events session, a student asked whether the teacher had participated in protests against the Iraq war.[88] The teacher responded that she had recently driven past a demonstration and had honked her horn in response to a placard that read, “Honk for Peace.”[89] Several parents got wind of the exchange and complained to the school, after which the principal instructed the faculty to refrain from taking sides in political controversies.[90] When the school later decided not to bring the teacher back for a second year, she filed a First Amendment claim.[91] A district court granted summary judgment to the school, and the Seventh Circuit affirmed, holding that teachers do not have First Amendment rights in their classroom speech.[92] Because the teacher’s speech occurred in the course of her official teaching duties, the First Amendment provided no protection from adverse employment consequences.[93] Other lower courts have addressed classroom speech since Garcetti but have found it unnecessary to decide whether the Garcetti rule applies to teaching, often because they found the speech unprotected even under the Pickering or Hazelwood standards.[94]

As one might expect, ideas of government speech formed the basis for the Seventh Circuit’s extension of Garcetti to teaching. In the Mayer opinion, Chief Judge Easterbrook characterized the school as a purchaser rather than regulator of teacher speech: “[T]he school system does not ‘regulate’ teachers’ speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.”[95] Thus, although he did not explicitly invoke government speech doctrine, Judge Easterbrook couched his reasoning in similar terms, essentially asserting that the speech was unprotected because classroom speech is government-sponsored expression and thus government speech.[96]

The Sixth Circuit has followed suit, applying the Garcetti rule to a public school teacher in Evans-Marshall v. Board of Education.[97] In that case, a ninth-grade English teacher was fired after she attempted to use various controversial materials in her class, ranging from the books Heather Has Two Mommies and Siddhartha to writing samples that included a first-hand rape account and a story about a young boy murdering a priest.[98] Relying on Garcetti and Mayer, the Sixth Circuit held that the teacher “had no more free-speech right to dictate the school’s curriculum than she had to obtain a platform—a teaching position—in the first instance for communicating her preferred list of books and teaching methods.”[99]

3. Counterargument: Teachers’ Rights

At this point, it will be useful to address one of the most common arguments against extending the Garcetti standard to teachers. Some protest that the broad discretion Garcetti grants to employers would chill innovative or dynamic teaching, casting a “pall of orthodoxy” on the classroom.[100] Many teacher speech cases involve teachers who have strayed considerably and been sanctioned, but schools may sometimes fire teachers for speech that appears relatively innocuous.[101] Under Garcetti, as long as the speech occurred in the course of official teaching duties, the First Amendment would provide no recourse for the teacher.[102] Thus, it is conceivable that a teacher might adhere to all official rules and yet lack First Amendment recourse if the school were to sanction the teacher for some aspect of her teaching. For instance, the plaintiff in Mayer made her reference to the Iraq protest within the context of a current events section presumably prescribed by the curriculum.[103] Assuming that the curriculum simply directed teachers to discuss events “in the news,” then the teacher’s comment arguably fell within the bounds of the curriculum.[104] And if that is the case, wasn’t it an injustice for the school to fire a teacher for doing something that was within the bounds of her job duties? Because Garcetti would deny protection to teachers in this situation, some argue that a more protective standard should apply.[105]

The problem with this argument is that it misconceives a point about employment rights for a First Amendment problem. Those who advance the argument are not so much concerned with a right to speak as they are concerned that schools may discipline teachers without good reason.[106] At bottom, this concern is a matter for contract negotiation and employment law, not First Amendment protection.[107] To be sure, union contracts and varying state laws do not protect all teachers equally,[108] though many benefit from union contracts[109] or tenure statutes.[110] But if one finds this concerning, one should work through the democratic process to pass more protective employment laws. The federal courts should not be made a “super-personnel department” for teachers, any more than for other government employees.[111]

4. Traditional First Amendment Theories

In attempting to discern what sort of First Amendment protection teaching ought to receive, traditional First Amendment theories serve as a good starting point. This article considers the two most common theories, the marketplace of ideas and the town-hall metaphor. Although the marketplace theory provides no clear answers, the town-hall approach suggests that the Garcetti rule may be a tenable approach to classroom speech.

First, take the marketplace of ideas metaphor. This theory analogizes to free market principles; just as open competition in economic markets rewards companies with the best products and most efficient distribution, so open competition between ideas allows the best ideas to rise to the top.[112] One can argue that the classroom should present such a marketplace, where students can test different ideas and decide which are strongest.[113] If free speech by teachers helps facilitate this “market,” then perhaps grounds exist for protecting teachers’ classroom speech.[114] But the marketplace metaphor assumes a marketplace populated with individuals who are both free to exchange ideas and also capable of picking out the “best” ideas. One obvious problem is that students are rarely free to respond in kind to their teachers’ ideas; often, teachers run classes as lectures in which students have limited or no ability to respond, and at those times, the marketplace analogy is of questionable relevance.

Even where the goal is an open class discussion, the assumption of independent thinking may not hold in classrooms of young students. They may, without much thought, simply adopt what they are told by the teacher, an authority figure.[115] And even assuming a classroom of students old enough to think independently, a teacher’s free insertion of ideas into the classroom may pose the risk of “market failure” by stifling what would otherwise be a freer exchange between students. Fears of risking one’s grade or being embarrassed in front of peers are strong incentives not to voice disagreement with a teacher in class. In other words, teachers may just as easily cast a “pall of orthodoxy” over the classroom as may the school’s administration. For these reasons, the marketplace theory carries limited relevance in the classroom setting.

Next, consider the town-hall theory, which conceives the purpose of free speech as cultivating an informed electorate capable of democratic self-governance.[116] Alexander Meiklejohn famously articulated the theory using a town hall meeting to illustrate the way in which speech should be protected; people should be allowed to discuss almost any point of view on the topic at hand, as long as they adhere to procedural rules that ensure orderly discussion.[117] In applying this analogy to classroom speech, one must first acknowledge that for teachers classrooms are places of employment rather than public forums.[118] As a result, it may be acceptable to limit teachers’ free speech on the job as long as they remain free outside of work to contribute to public discussion.[119] And from the students’ perspective, even when the teacher runs class as a “town meeting” style discussion, the same market failure concerns discussed above will arise if teachers have an equal right to inject their views.

Some argue that protecting teachers’ classroom speech illustrates to students that everyone in our society is free to share their ideas. It would help ensure that students hear minority views; for example, in a small town with an overwhelmingly conservative electorate and school board, a maverick teacher might represent the students’ best chance at receiving exposure to alternative points of view. But these arguments bring us back to the problem pointed out by Judge Easterbrook in Mayer—unlike a town hall gathering, students in a classroom are a captive audience.[120] There, the flip side of free speech for teachers is the power to impose one’s own views, because authority to determine what goes on in a classroom always carries with it some risk of indoctrination.[121] If some risk of indoctrination exists no matter who controls the content of teaching, better to entrust that power with the democratically elected school board than to leave students “subject to teachers’ idiosyncratic perspectives.”[122] The curricular positions taken by school boards are at least transparent and subject to public scrutiny, even if the democratic process is imperfect. [123] By contrast, the viewpoints of individual teachers are unpredictable and less susceptible to democratic checks.[124] In the end, perhaps vesting ultimate authority with a democratically elected body provides an even stronger town-hall illustration to the students, because it gives every voter in the district some say in how classrooms are conducted. Attempting to ensure this sort of responsiveness to the electorate is important precisely because schools play such an important role in our society—they not only teach technical skills, but also instill societal values in children.[125] Giving a democratically accountable body ultimate control over classrooms helps to ensure that teachers only inculcate values upon which some measure of democratic agreement exists.

5. Supreme Court Precedent: Government Speech and Academic Freedom

Extending Garcetti to cover teaching fits within the Court’s broader jurisprudence, especially in light of the government speech cases of which Garcetti is a part.[126] Government speech doctrine holds that when the government speaks, it remains free to determine the content of its own message.[127] The doctrine recognizes that the government sometimes acts as a speaker rather than as a regulator of speech.[128] The rule applies not only when the government speaks directly but also when it funds a particular message.[129] For instance, Rust v. Sullivan held that the government could condition its funding for family planning programs on the requirement that the programs not counsel abortion or refer patients to abortion providers.[130] The petitioners argued that the conditions amounted to viewpoint discrimination, but the majority opinion reasoned that the government had merely chosen to “fund one activity to the exclusion of the other.”[131] If the government speech doctrine can be brought to bear in the employee speech context, then the result in Garcetti readily follows.[132] In other words, if employee speech equals government speech whenever employees speak “pursuant to their official duties,” then the government speech doctrine would suggest that the government (rather than the employee) has the right to determine the content of the message.[133]

Yet the government does not have an unlimited ability to control speech that it subsidizes. For instance, the government may not impose viewpoint-defined conditions on subsidies intended to promote a diversity of viewpoints.[134] In Rosenberger v. Rector and Visitors of the University of Virginia, the Court struck down a state university’s attempt to withhold funding from religious student groups.[135] The university’s rules made funding available to all types of clubs except those that endorsed a specific perspective on religion; the school argued that the restriction was necessary to avoid violating the Establishment Clause.[136] The majority, however, dismissed the Establishment Clause argument and distinguished the case from Rust by asserting that the club funding scheme created a limited public forum.[137] When the government creates a public forum, it may not engage in viewpoint discrimination.[138] When the government “does not itself speak or subsidize transmittal of a message it favors but instead expends funds to encourage a diversity of views from private speakers,” it may not engage in viewpoint discrimination.[139]

Government speech doctrine logically extends to the teaching context, even if applying the idea in other employment contexts causes problems. Insofar as a teacher’s job consists of conveying a government message, embodied in the curriculum, the teacher’s classroom activities are government speech.[140] Indeed, Justice Souter’s dissent in Garcetti illustrates the difficulty of carving out an exception for teaching. The dissent distinguished Garcetti’s situation from the doctors in Rust by noting that a district attorney is not hired to espouse a specific substantive policy position.[141] But the same distinction does not hold up when the job at issue is teaching because conveying government messages embodied in a curriculum constitutes the central purpose of the job.[142] Because government-mandated messages are integral to the job, teaching arguably fits within government speech doctrine even better than the district attorney position at issue in Garcetti.[143]

Government speech doctrine can even extend to non-employees if the government is subsidizing their message. In Rust, the Court held that the government could regulate the advice of non-employee doctors participating in a federally-funded family planning program.[144] Likewise in the student speech context, more government support for speech means more government control over speech. [145] This is the lesson of Hazelwood, which granted schools the power to exercise “editorial control over the style and content of student speech in school-sponsored expressive activities.”[146] As Hazelwood illustrates, the logic behind government speech doctrine does not evaporate at the schoolhouse gates.[147]

Rust also undermines the argument that the special nature of the student-teacher relationship necessitates an exception to government speech doctrine. Few would assert that there is less need for freedom of communication between doctor and patient than between student and teacher.[148] If the doctor-patient relationship was not sufficient to stave off government speech doctrine in Rust, then it seems unlikely that the teacher-student relationship can.[149]

Aside from government speech doctrine, applying Garcetti to public schools also meshes with the Court’s previous pronouncements about academic freedom, which suggest that the school, not the teacher, should be the arbiter of classroom speech.[150] As Justice Frankfurter famously described, academic freedom, “is an atmosphere in which there prevail ‘the four essential freedoms’ of a university—to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”[151] Of course, democratically-elected school boards do not conjure the same ideas of academic independence as the semi-autonomous public universities of which Justice Frankfurter wrote, but the point is that the Court has conceived of schools, not individual teachers, as having the right to determine the substance and style of a curriculum.[152] Thus, even if academic freedom doctrine suggests that school administrators should enjoy some autonomy from the legislature in making curricular decisions, it does not follow that teachers should enjoy the same autonomy vis-à-vis their employers.[153]

In practical terms, extending the Garcetti rule would represent a positive but not dramatic change from how circuits currently approach the matter. As described above, all circuits grant schools a large amount of discretion in determining their curriculum and teaching methods.[154] Teachers typically succeed with free speech claims only if they can show that their classroom speech did not run afoul of existing curricular rules, and then only if the court decides that the speech constituted good teaching.[155] In other words, schools already have near-total power to control classroom speech ex-ante by codifying rules in an official curriculum.[156] Problematically, the current approach creates an incentive for schools to guard against liability by writing overly specific and inflexible curricula, which may stifle creative teaching.[157] Relative to this approach, Garcetti may actually leave schools more open to incremental experimentation by teachers, confident in their power over the classroom should the experimentation not work or go too far.[158] This is so because extending the Garcetti rule would give schools the flexibility to make discretionary judgments about what sorts of teaching styles work and are appropriate, as they observe them working or not working.[159] If school administrators know they have this flexibility, they should no longer feel compelled to overwrite their curricula. Rather than needing to pre-empt every potential problem with iron-clad curricula, they would be free to compose more general curricula and deal with problems as problems arise.

As for the plight of teachers, even where the First Amendment provides no protection against adverse employment decisions, the employee retains the other types of First Amendment protections enjoyed by all citizens.[160] For example, even if the First Amendment does not protect a teacher from termination for allegedly libelous in-class speech, the teacher “would be entitled to the same protection in a libel action accorded an identical statement made by a man on the street.”[161] Simply put, the Garcetti rule leaves government employees in the same position as workers in the private sector. Actually, it leaves government employees somewhat better off because they still may receive protection for speech made outside the scope of their official duties.[162] By contrast, employees of private entities receive no First Amendment protection whatsoever against their employers.[163]

D. The Outer Reaches of Garcetti: What Is the “Scope of Employment”?

After concluding that Garcetti should limit First Amendment protection for speech made while teaching, it remains for courts to decide whether the speech in a given case actually constitutes teaching or otherwise falls within the scope of employment. As the Court noted, scope of employment is a practical inquiry.[164] In many cases it will be obvious, but some interesting problems arise in determining whether given speech qualifies as teaching, so it will be useful to consider a couple of the more obvious problems in this area. This part of the discussion assumes that Garcetti applies to teaching. The following subsections address several issues with classifying in-person and online speech.

1. In-Person Speech

When teachers address students face-to-face, the speech will often be teaching, but borderline situations can occur. One interesting problem involves “passive” speech in the form of a symbolic object worn by the teacher or displayed in the classroom. This speech might include a religious symbol such as a crucifix or hijab[165] worn by the teacher, a poster on the classroom wall, or even an object sitting on top of the teacher’s desk. In trying to determine whether these sorts of displays constitute classroom speech, courts should try to determine whether a reasonable student of the relevant age would have perceived the object as part of the classroom or as a personal effect of the teacher.[166] Under this analysis, something worn by the teacher will rarely count as teaching, whereas objects displayed around the classroom will very likely count.[167] This standard would ensure that schools retain plenary control over the learning environment while recognizing Tinker’s protection of passive personal effects.[168] Of course, even if the object is a personal effect of the teacher (rather than rising to the level of classroom speech) the teacher would need to satisfy a Pickering analysis, which balances the teacher’s interest as a citizen commenting on matters of public concern against the school’s interest in efficiently managing the school system.[169] This standard might, for instance, protect the teacher from viewpoint discrimination[170] but would not prevent the school from putting in place a viewpoint-neutral dress code.[171]

If a passive object or personal effect becomes an explicit topic of conversation during class, the speech ceases to be passive. Thus, even assuming a passive display that does not constitute classroom speech, the teacher may be put in a tricky spot if a student attempts to bring up the object in class.[172] That is the risk the teacher takes by bringing the object into the classroom, but the teacher can always decline to answer a question. Garcetti should apply only if the teacher indulges the question and thus “teaches” on the matter. On the other hand, if a teacher refuses a student’s attempt to discuss an object but nevertheless is disciplined by the school, a court should likely conclude that the teacher was really fired for merely displaying the object. Accordingly, the court may decide that the speech deserves protection under Pickering, as expression that fell outside the teacher’s official duties.[173]

Other questions may arise around quasi-teaching duties such as chaperoning field trips or school events, coaching or leading extracurricular activities, or even tutoring or discussing materials with students outside of official class time. These quasi-teaching duties will most often be a required part of the teacher’s job and therefore within the scope of official job duties, whether or not they properly qualify as “teaching.” [174] If Garcetti extends to teaching, as this article suggests, then all parts of a teacher’s official duties will be governed by the same standard.[175] That is, teachers would not receive First Amendment protection for any speech that occurred in the course of official duties, whether or not that speech constituted “teaching.”[176] If teaching is simply a subset of a teacher’s official duties, it becomes irrelevant to bother about the line between teaching and other official duties. Rather, courts would simply inquire whether the speech occurred in furtherance of the teacher’s official duties.[177] Looking beyond any paper descriptions of the teacher’s job, which the school has an incentive to write too broadly, courts should inquire whether the school actually expected the teacher to perform the function as a part of the job.[178]

2. Internet Speech

Computers have expanded the concept of the classroom, and with the increasingly prevalent use of computers and the Internet in schools and by school-age children, courts have begun to deal with cases in which schools discipline teachers for Internet-based speech. Like any other sort of speech, electronic speech can range from actual instruction of students to speech that has no relation to job duties. For an example of online speech that constitutes teaching, suppose a teacher requires students to make posts on a discussion board concerning some topic being studied by the class and that the teacher also posts to this board. On the other end of the spectrum would be a Facebook page or email account used by a teacher for purely personal purposes.

As with any other type of employee speech, the trick for courts dealing with online speech will be to determine whether the speech fell within the scope of job duties, because speech in furtherance of official job duties would receive no protection, regardless of whether the speech was made pursuant to teaching duties or other official duties.[179] As noted by the Garcetti opinion, the key inquiry will be whether the teacher spoke in furtherance of some responsibility actually imposed by the school.[180]

One difficulty with Internet speech is that physical location and time often bear less relevance than with in-person speech because people often use the Internet to communicate over distances in space and time. Of course, if the teacher requires students to view or respond to a message or website as part of a class assignment, the speech will almost certainly constitute teaching. Classifying the speech becomes more difficult if the teacher uses the Internet to communicate with students in a more informal or social manner. In close cases, courts will need to look to facts such as whether the speech occurred on school email or a school-controlled website; whether students were intended to have access to the message or website; whether students engaged in a dialog with the teacher or merely viewed the message or website; and, of course, the content of the message.

If a court determines that the Internet communications fell within official job duties, Garcetti ends the First Amendment inquiry.[181] Otherwise, the speech may receive protection under Pickering, but only if it involved a matter of public concern.[182] In a way, Pickering offers quite limited protection, because a teacher could conceivably be fired for speech that has little connection to the school. Restrictions imposed by a government entity upon its employees’ speech simply “must be directed at speech that has some potential to affect the entity’s operations.”[183] Maintaining a reputation for responsibility and professionalism is generally a legitimate concern for a government entity,[184] and this concern carries special force with teachers responsible for supervising and teaching other people’s children.

Take, for example, the teacher who maintains a personal Facebook page for purely social purposes. Suppose that none of the information on the teacher’s page refers to the teacher’s job or to the school in any way, or even mentions the teacher’s occupation. Further suppose that the teacher does not use the account to communicate with coworkers or students, and has in fact tailored the account’s settings to ensure that neither coworkers nor students can view the teacher’s page. The page would seem quite divorced from the teacher’s job. Yet if the teacher posts pictures of himself in a drunken state and the school somehow learns of the pictures, it could conceivably discipline the teacher without any First Amendment repercussions.[185] Under Pickering, a court would first ask whether the speech involved a matter of public concern and this speech would not.[186] Thus, even though the speech involved non-school matters, Pickering would not protect the teacher.[187]

Disciplining teachers for postings on social networking sites like Facebook also raises a particularly interesting causation problem within the Pickering analysis: whether giving students access to a personal website that contains some speech on a matter of public concern meets Pickering’s threshold “matter of public concern” requirement.[188] For example, one district court decided it was not enough that a teacher’s MySpace page happened to contain a poem that criticized the war in Iraq, because the evidence showed that the school terminated the teacher for socializing with students through the social networking site rather than for any particular content of the teacher’s page.[189] To receive protection under Pickering, an employee must show that the speech on a matter of public concern caused the adverse employment decision.[190] Plaintiffs must show causation in all cases, but the problem becomes more complex where the school ostensibly disciplines a teacher simply for interacting with students on a social networking site, and yet the teacher’s page contains speech on matters of public concern.[191] The question becomes whether the school punished the teacher for the act of socializing with students or for the content of the speech.[192] Also, even if the school’s decision was content-based, the teacher’s page (or messages to a student) will likely contain some speech on matters of public concern and other speech on private matters.[193] Unless the plaintiff can show that some speech on a matter of public concern caused the adverse action, the claim must fail.[194]

Lastly, if the school did discipline the teacher for material that addressed a matter of public concern, the court must balance the teacher’s interest as a citizen commenting on matters of public concern against the board’s interest in efficiently managing the school system.[195] Schools may have an interest in regulating speech directed at students if the speech is likely to disrupt school in some way, but speech on matters of public concern will often receive protection, much like the teacher’s letter to the editor in Pickering.[196]

V. Distinguishing Higher Education

Finally, a word is merited on why this article only advocates extending Garcetti to primary and secondary classrooms but not colleges. As the Court’s limited academic freedom jurisprudence suggests, the freedom to determine the substance and form of teaching at a college may often lie with the college rather than the professor.[197] But colleges present additional problems for applying the Garcetti rule to classroom speech, because college classes frequently stress critical inquiry and may intertwine scholarship with teaching.[198] For that reason, this article does not advocate extending the Garcetti rule to college and university classrooms.

Classroom teaching at public primary and secondary schools is largely distinguishable from the sort of teaching that occurs at universities. First, the students at a university are not a captive audience in the same way as public school students. Truancy laws require public school attendance, at least up to a certain age.[199] And even in cases where students could legally drop out of high school, they often remain much more subject to the wishes of their parents than the typical college student. Conveniently, graduation from high school also roughly aligns with the age of majority.

College classes also involve a different sort of teaching than do public school classes. The ability of students to think for themselves increases with age, whereas younger students are more likely to accept whatever a teacher says as true.[200] Public school classes primarily convey the specific information contained in the curriculum.[201] In contrast, college classes much more often seek to spur critical thinking by exposing students to diverse ideas or the gray areas of their subject matter.[202] When legislatures create state colleges, they create educational forums of the sort described in Rosenberger.[203] Of course, this bright-line distinction does not ring true in all cases. Some course offerings at community colleges may strikingly resemble a high school curriculum,[204] while some advanced high school courses may be conducted like university classes and even offered for college credit.[205] But it would be extremely difficult to condition First Amendment protection on, for instance, whether “critical thinking” actually occurred in a given classroom. On the whole, a fairly sharp contrast remains between high school and college, which makes the bright-line distinction appropriate.

VI. Conclusion

The Garcetti standard may have its flaws as applied to some professions but withholding First Amendment protection from teachers makes good sense in primary and secondary classrooms. Because of the current circuit split regarding classroom speech, the problem of whether to extend Garcetti has two parts: first, whether courts should consider teaching under student speech or employee speech case law, and if the latter, whether the rule announced in Garcetti should extend to teaching at the primary and secondary levels. This article maintains that courts should analyze teaching within the employee speech rubric because teachers are employees. By contrast, student speech cases focus on protecting the interests of students, who are a captive audience. Proceeding under employee speech analysis, primary and secondary teaching should not receive an exemption from the Garcetti rule. Because public schools teach impressionable youth how to think, voters should be kept close to what goes on in classrooms and democratically elected school boards should have the final say on what is taught and how. Treating teaching as government speech is both true to reality and consistent with Supreme Court precedent. Moreover, applying the rule would not constitute a radical change in the law, because existing circuit approaches generally recognize that schools have the right to define their own curriculum and teaching methods. Extending the Garcetti rule would merely clarify that school administrators have ultimate control over the classroom, regardless of the written curriculum. Counterintuitively, extending Garcetti may even induce some schools to permit greater curricular flexibility; as an alternative to overly specific and inflexible curricula, school administrators would be freed to write more flexible curricula and deal with problems if they arose. Schools boards, and by proxy their constituents, would have the final say on the substance and style of teaching in public schools, as they should in a representative democracy.

_______________________

* J.D., summa cum laude, Chicago-Kent College of Law, Illinois Institute of Technology, 2010. Thank you to Dean Harold Krent and my Honors classmates for their constructive feedback. Thank you also to my wife for her patience and understanding during the many hours I spent working on this article.

[1]. 547 U.S. 410, 421 (2006).

[2]. Id. at 422 (comparing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)).

[3]. Id. at 425.

[4]. See, e.g., McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517–18 (Mass. 1892).

[5]. Id.

[6]. See 391 U.S. 563, 568 (1968).

[7]. Id. at 565–66.

[8]. Id. at 572–74.

[9]. Id. at 568.

[10]. Id. at 572–73.

[11]. Connick v. Myers, 461 U.S. 138, 147 (1983).

[12]. Id. at 140–41.

[13]. Id. at 141.

[14]. Id. at 147.

[15]. See id. at 146-48.

[16]. See generally 393 U.S. 503 (1969).

[17]. Id. at 504.

[18]. Id. at 509 (quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)).

[19]. Most scholars agree that Tinker marked the high point of protection for student speech, and some have observed that the contemporary protections for student speech more closely mirror the dissent than the majority opinion in Tinker. See, e.g., Erwin Chemerinsky, Students Do Leave Their First Amendment Rights at the Schoolhouse Gates: What’s Left of Tinker?, 48 Drake L. Rev. 527, 529-30 (2000).

[20]. 478 U.S. 675, 677-80, 685 (1986).

[21]. Id. at 685.

[22]. 484 U.S. 260, 263 (1988).

[23]. Id. at 273.

[24]. 551 U.S. 393, 397, 403 (2007).

[25]. See Karen C. Daly, Balancing Act: Teachers’ Classroom Speech and the First Amendment, 30 J.L. & Educ. 1, 6–7 (2001).

[26]. See Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 229-32 (6th Cir. 2005) (school violated the First Amendment by firing a teacher for assigning materials purchased and approved by the school board); Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990) (applying Pickering, holding that a teacher had no interest in using “Learnball,” a favorite teaching technique); Nicholson v. Bd. of Educ., 682 F.2d 858, 864-65 (9th Cir. 1982) (teacher could be fired for refusing to submit a student newspaper to the principal for approval); Goldwasser v. Brown, 417 F.2d 1169, 1176–77 (D.C. Cir. 1969) (Air Force could fire language instructor for in-class comments about Vietnam protests and discrimination against Jewish people).

[27]. See Lacks v. Ferguson Reorganized Sch. Dist. R-2, 147 F.3d 718, 724 (8th Cir. 1998) (upholding the punishment of a teacher who allowed students to write profane plays and poems); Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 721–23 (2d Cir. 1994) (guest lecturer had no right to show clips involving partial nudity); Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993) (applying Hazelwood’s standard to permit the non-renewal of a teacher’s contract after her in-class discussion of the abortion of Down’s Syndrome fetuses); Miles v. Denver Pub. Sch., 944 F.2d 773, 776–77 (10th Cir. 1991) (holding that a classroom was a nonpublic forum and that the school had a legitimate pedagogical interest in punishing a teacher for repeating rumors about students during class); Bishop v. Aronov, 926 F.2d 1066, 1075–77 (11th Cir. 1991) (holding that a public university could prevent a professor from sharing his religious views in class); Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1008 (7th Cir. 1990) (upholding a ban on the teaching of creationism).

[28]. See Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364, 368–70 (4th Cir. 1998) (en banc) (asserting both that the speech did not involve a matter of public concern under Pickering-Connick and that the school had a legitimate pedagogical interest in controlling its curriculum under Hazelwood); Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 799–802 (5th Cir. 1989) (same).

[29]. See supra note 26.

[30]. Boring, 136 F.3d at 368–70.

[31]. See, e.g., Goldwasser, 417 F.2d at 1176–77 (Air Force could fire a language instructor for in-class comments about Vietnam protests and discrimination against Jewish people).

[32]. Webster, 917 F.2d at 1008.

[33]. Goldwasser, 417 F.2d at 1176–77.

[34]. James v. Bd. of Educ., 461 F.2d 566, 573–75 (2d Cir. 1972).

[35]. Id. at 573.

[36]. Compare id. at 568–69, with Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. at 504.

[37]. Compare James, 461 F.2d at 568–69, with Tinker, 393 U.S. at 504.

[38]. See, e.g., Silano v. Sag Harbor Union Free Sch. Dist. Bd. of Educ., 42 F.3d 719, 722–23 (2d Cir. 1994) (employing Hazelwood’s test in holding that a guest lecturer had no right to show clips involving partial nudity).

[39]. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (“[E]ducators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored activities so long as their actions are reasonably related to legitimate pedagogical concerns.”).

[40]. See supra note 27.

[41]. See Hazelwood, 484 U.S. at 273.

[42]. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[43]. Vanderhurst v. Colo. Mountain Coll. Dist., 208 F.3d 908, 913–14 (10th Cir. 2000); Alison Lima, Shedding First Amendment Rights at the Classroom Door?: The Effects of Garcetti and Mayer on Education in Public Schools, 16 Geo. Mason L. Rev. 173, 198 (2008).

[44]. See generally Williamson v. Lee Optical, 348 U.S. 483 (1955).

[45]. Hazelwood, 484 U.S. at 273.

[46]. Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364, 370 (4th Cir. 1998) (en banc) (school had a right to regulate selection of a play for drama class).

[47]. See supra note 27.

[48]. Sheldon Nahmod, Academic Freedom and the Post-Garcetti Blues, 7 First Amendment L. Rev. 54, 64 (2008).

[49]. See, e.g., Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007) (citing Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004 (7th Cir.1990)).

[50]. See, e.g., Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1176 (3d Cir. 1990) (holding that a teacher had no interest in using “Learnball,” a favorite teaching technique).

[51]. Nahmod, supra note 48, at 64.

[52]. Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 799–801 (5th Cir. 1989) (teacher had no right to circulate an unapproved supplemental reading list).

[53]. See Bradley, 910 F.2d at 1176.

[54]. See Evans-Marshall v. Bd. of Educ., 428 F.3d 223, 229–32 (6th Cir. 2005) (school violated the First Amendment by firing a teacher for assigning materials purchased and approved by the school board); Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1055 (6th Cir. 2001) (lesson on industrial hemp); Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1111–14 (5th Cir. 1980) (racial role-playing project in class); cf. also James v. Bd. of Educ., 461 F.2d 566, 573–75 (2d Cir. 1972) (high school teacher had a right to wear a black armband similar to those at issue in Tinker).

[55]. See Evans-Marshall, 428 F.3d at 229–32; Cooper, 611 F.2d at 1113–14; Stachura v. Truszkowski, 763 F.2d 211, 213–15 (6th Cir. 1985), rev’d and remanded on other grounds, (regarding issue of compensatory damages), 477 U.S. 299 (1986) (First Amendment protected teaching of an approved sex education unit to a junior high school class), rev’d on other grounds, 477 U.S. 299 (1986) (reviewing only the issue of compensatory damages); Cockrel, 270 F.3d at 1054–55 (school had given prior approval for a lesson on industrial hemp).

[56]. See Evans-Marshall, 428 F.3d at 229–32.

[57]. See supra notes 26–27.

[58]. Compare Evans-Marshall, 428 F.3d at 229–32 (school violated the First Amendment by firing a teacher for assigning materials purchased and approved by the school board), with Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 478–80 (7th Cir. 2007) (teacher had no right to comment about personal views on Iraq war during a current events lesson).

[59]. See, e.g., Daly, supra note 25, at 3–4; JoNel Newman, Will Teachers Shed Their First Amendment Rights at the Schoolhouse Gate? The Eleventh Circuit’s Post-Garcetti Jurisprudence, 63 U. Miami L. Rev. 761, 791–92 (2009).

[60]. 547 U.S. 410 (2006).

[61]. Id. at 413.

[62]. Id. at 413–14.

[63]. Id. at 414–15.

[64]. Id. at 415.

[65]. Id. at 421.

[66]. Id. at 418.

[67]. Id. at 421.

[68]. Id.

[69]. Id. at 425.

[70]. See Gorum v. Sessoms, 561 F.3d 179, 185–86 (3d Cir. 2009); Renken v. Gregory, 541 F.3d 769, 773–75 (7th Cir. 2008).

[71]. Renken, 541 F.3d at 773–75.

[72]. Gorum, 561 F.3d at 185–86.

[73]. Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006).

[74]. Cf. Givhan v. W. Line Consol. Sch. Dist. 439 U.S. 410, 411-13 (1979) (holding that a teacher could not be dismissed for criticizing the school’s racially discriminatory practices while talking with a principal).

[75]. Garcetti, 547 U.S. at 425 (“We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.”).

[76]. See Nahmod, supra note 48, at 67–70 (advocating different standards for public schools and public higher education).

[77]. See id.

[78]. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266–67 (1988); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511 (1969).

[79]. See Emily Gold Waldman, Returning to Hazelwood’s Core: A New Approach to Restrictions on School-Sponsored Speech, 60 Fla. L. Rev. 63, 65 (2008).

[80]. See, e.g., Lima, supra note 43, at 189–97.

[81]. See Garcetti v. Ceballos, 547 U.S. 410, 421–23 (2006) (no exception for employees who must interact with the public).

[82]. See id. at 425.

[83]. Cf. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[84]. Cf. Cockrel v. Shelby Cnty. Sch. Dist. 270 F.3d 1036, 1055 (6th Cir. 2001) (lesson on industrial hemp); Kingsville Indep. Sch. Dist. v. Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980) (racial role-playing project in class).

[85]. See Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 171 n.13 (3d Cir. 2008) (resolving case against the teacher based on pre-Garcetti precedent); Lee v. York Cnty. Sch. Div., 484 F.3d 687, 694 n.11 (4th Cir. 2007) (same); Panse v. Eastwood, 303 Fed. App’x 933, 935 (2d Cir. 2008) (same).

[86]. 474 F.3d 477, 478 (7th Cir. 2007).

[87]. Id.

[88]. Id.

[89]. Id.

[90]. Id.

[91]. Id.

[92]. Id. at 478.

[93]. See id. at 480.

[94]. See, e.g., Panse v. Eastwood, 303 Fed. App’x 933, 934 (2d Cir. 2008) (holding that an art teacher had no right to encourage students to enroll in a for-profit course he was teaching that involved nude models); Lee v. York Cnty. Sch. Div., 484 F.3d 687, 693-94 (4th Cir. 2007) (applying earlier circuit precedent to hold that a teacher had no speech right in postings on a classroom bulletin board); Weingarten v. Bd. of Educ., 591 F. Supp. 2d 511, 519–20 (S.D.N.Y. 2008) (holding that teachers’ wearing of campaign pins to work is not protected speech because it would “bear the school’s imprimatur” within the meaning of Hazelwood).

[95]. Mayer, 474 F.3d at 479 (emphasis omitted).

[96]. Compare id. at 478–79, with Rust v. Sullivan, 500 U.S. 173, 193 (1991) (“[T]he Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of another.”).

[97]. 624 F.3d 332 (6th Cir. 2010).

[98]. Id. at 334–36.

[99]. Id. at 340.

[100]. See, e.g., Lima, supra note 43, at 189–97.

[101]. See, e.g., Mayer, 474 F.3d at 478.

[102]. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[103]. Mayer, 474 F.3d at 478.

[104]. See id.

[105]. See Daly, supra note 25, at 53–62 (arguing for a presumption of protection if the speech was not explicitly forbidden by the curriculum or school rules); Newman, supra note 59, at 791–92 (arguing that courts should protect classroom speech unless it “creates a significant disruption to the educational process”).

[106]. See Ceballos v. Garcetti, 361 F.3d 1168, 1189–91 (9th Cir. 2004) (O’Scannlain, J., concurring specially) (“Ceballos had no personal stake (other than in doing his job well), and no cognizable First Amendment interest, in the speech for which he now seeks protection . . . .”), rev’d, 547 U.S. 410 (2006); cf. also Mayer, 474 F.3d at 479 (holding that teachers have no constitutional right to determine what they say in class).

[107]. The clarity of the Garcetti rule would help prevent use of the First Amendment to bootstrap employment disputes into federal court. The temptation to “constitutionalize” what is really an employment dispute is a very real practical litigation problem. See, e.g., Brief of Defendants-Appellees at 34–39, Mayer, 474 F.3d 477 (No. 06-1993), 2006 WL 2618024 at *34-39.

[108]. See, e.g., Mayer, 474 F.3d at 478 (probationary teacher); Snyder v. Millersville Univ., No. 07-1660, 2008 WL 5093140, at *1 (E. D. Pa. Dec. 3, 2008) (student teacher). Courts have generally held that student teachers should be treated as teachers rather than students for First Amendment purposes. See id. at *15 (collecting cases).

[109]. See generally Myron Lieberman, Understanding the Teacher Union Contract: A Citizen’s Handbook (2000).

[110]. See generally Annotation, Teachers’ Tenure Statutes, 127 A.L.R. 1298 (2010).

[111]. See Garcetti, 547 U.S. at 423 (“This displacement of managerial discretion by judicial supervision finds no support in our precedents.”).

[112]. See Gitlow v. New York, 268 U.S. 652, 673 (Holmes, J., dissenting) (“Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.”).

[113]. See Keyishian v. Bd. of Regents, 385 U.S. 589, 603–05 (1967); Daly, supra note 25, at 37.

[114]. See Daly, supra note 25, at 37.

[115]. Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364, 370 (4th Cir. 1998) (en banc) (quoting Plato, The Republic: Book II 281 (Benjamin Jowett trans., 1942) and Edmond Burke, Letter to a Member of the National Assembly (1791), in The Philosophy of Edmond Burke 247 (Ralph Gilbert Ross ed., 1960)).

[116]. Whitney v. California, 274 U.S. 357, 375–76 (1927) (Brandeis, J., concurring) (advocating “the power of reason as applied through public discussion”); Alexander Meiklejohn, Free Speech and its Relation to Self-Government 24–27 (1948) (discussing town meeting analogy).

[117]. Meiklejohn, supra note 116, at 22–27.

[118]. See Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007).

[119]. Cf. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968) (“[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”).

[120]. Cf. Mayer, 474 F.3d at 479 (“[P]upils are a captive audience. Education is compulsory, and children must attend public schools unless their parents are willing to incur the cost of private education or the considerable time commitment of home schooling. Children who attend school because they must ought not be subject to teachers’ idiosyncratic perspectives.”).

[121]. See id.

[122]. Id. at 479–80.

[123]. See id. at 479.

[124]. See id.

[125]. See Nahmod, supra note 48, at 58–60.

[126]. See 547 U.S. 410, 421–22 (2006) (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995)).

[127]. See Rosenberger, 515 U.S. at 833 (“[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.”); Wooley v. Maynard, 430 U.S. 705, 717 (1977) (“The State is seeking to communicate to others an official view as to proper appreciation of history, state pride, and individualism. Of course, the State may legitimately pursue such interests in any number of ways.”).

[128]. Rosenberger, 515 U.S. at 833; Nahmod, supra note 48, at 56–57.

[129]. See Rust v. Sullivan, 500 U.S. 173, 192–200 (1991).

[130]. Id.

[131]. Id. at 193.

[132]. See Garcetti v. Ceballos, 547 U.S. 410, 421–-22 (2006) (citing Rosenberger, 515 U.S. at 833).

[133]. Id. at 421.

[134]. See Rosenberger, 515 U.S. at 833.

[135]. Id. at 845–46.

[136]. Id. at 822–23, 837.

[137]. Id. at 829–30, 833–46. Recognizing that the “forum” at issue was not a physical space, the majority noted, “The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable.” Id. at 830.

[138]. Id. at 829.

[139]. Id. at 834.

[140]. See Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 479 (7th Cir. 2007).

[141]. Garcetti v. Ceballos, 547 U.S. 410, 437 (2006) (Souter, J., dissenting).

[142]. Compare id. at 437, with Mayer, 474 F.3d at 479.

[143]. Compare Garcetti, 547 U.S. at 437, with Mayer, 474 F.3d at 479.

[144]. 500 U.S. 173, 177–78 (1991). The Court claimed that its holding did not “significantly impinge upon the doctor-patient relationship,” because the program did not claim to offer comprehensive medical advice or force doctors to endorse opinions they did not hold, but the case undoubtedly gave the government significant power to control speech by doctors to patients. Id. at 200.

[145]. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

[146]. Id. (emphasis added).

[147]. Id. at 266.

[148]. Cf. id. at 200.

[149]. Cf. id.

[150]. Urofsky v. Gilmore, 216 F.3d 401, 414–15 (4th Cir. 2000) (collecting cases).

[151]. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (quoting The Open Universities in South Africa 10-12 (1957)); see also Urofsky, 216 F.3d at 414 (“[C]ases that have referred to a First Amendment right of academic freedom have done so generally in terms of the institution, not the individual.”); Stronach v. Va. State Univ., No. 3:07CV646-HEH, 2008 WL 161304, at *3 (E.D. Va. Jan. 15, 2008) (holding that the rights of academic freedom are purely institutional rights); Paul Horwitz, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, 54 UCLA L. Rev. 1497, 1497–98 (2007) (arguing that universities should be considered First Amendment actors distinct from the government and individual students and employees).

[152]. See Sweezy, 354 U.S. at 262-63.

[153]. See id.

[154]. See supra notes 26–28.

[155]. See supra notes 54–57 and accompanying text.

[156]. See Nahmod, supra note 48, at 64.

[157]. See Daly, supra note 25, at 49-50.

[158]. Compare id. at 479–80 (briefly disposing of claim), with Cockrel v. Shelby Cnty. Sch. Dist., 270 F.3d 1036, 1048–55 (6th Cir. 2001) (lengthy Pickering analysis).

[159]. Cf. Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 480 (school instructed teachers to avoid taking sides in political controversies).

[160]. See Connick v. Myers, 461 U.S. 138, 147 (1983).

[161]. Id.

[162]. See Garcetti v. Ceballos, 547 U.S. 410, 419–20 (2006).

[163]. See generally The Civil Rights Cases, 109 U.S. 3 (1883) (holding that the Fourteenth Amendment does not restrict private actors).

[164]. Garcetti, 547 U.S. at 424–25.

[165]. In terms of the Free Exercise Clause, the government could probably prohibit wearing these items even if they were required by the employee’s religion, so long as the prohibition took the form of a generally applicable law that was religion-neutral on its face. See generally Emp’t Div. v. Smith, 94 U.S. 872 (1990). Of course, the employee may well receive protection from a state statute or employment agreement.

[166]. Compare Lee v. York Cnty. Sch. Div., 484 F.3d 687, 699–700 (4th Cir. 2007) (holding that a teacher had no speech right in postings on a classroom bulletin board based on a Pickering analysis), with Montle v. Westwood Heights Sch. Dist., 437 F. Supp. 2d 652, 655–56 (E.D. Mich. 2006) (holding that a school’s interest in a professional work environment outweighs a teacher’s interest in wearing a shirt that protested working without a contract).

[167]. Compare Nichol v. ARIN Intermediate Unit 28, 268 F. Supp. 2d 536, 560–61 (W.D. Pa. 2003) (applying Pickering and granting a preliminary injunction against enforcement of a school rule that forbade the wearing of religious symbols such as cross necklaces), with Caruso v. Massapequa Union Free Sch. Dist., 478 F. Supp. 2d 377, 384 (E.D.N.Y. 2007) (denying summary judgment because questions of fact existed as to whether a picture of George W. Bush on a classroom wall was speech within scope of employment and, if not, whether Pickering balancing supported teacher or school).

[168]. Cf. 393 U.S. 503, 509 (1969).

[169]. Id. at 568.

[170]. Cf. Nichol, 268 F. Supp. 2d at 560–61.

[171]. See Commc’ns Workers of Am. v. Ector Cnty. Hosp. Dist., 467 F.3d 427, 437–41 (5th Cir. 2006) (no First Amendment violation to forbid the wearing of buttons and pins by hospital staff); Montle, 437 F. Supp. 2d at 655–56 (holding that a school’s interest in a professional work environment outweighs a teacher’s interest in wearing a shirt that protested working without a contract).

[172]. Cf. Mayer v. Monroe Cnty. Cmty. Sch. Corp., 474 F.3d 477, 478 (7th Cir. 2007) (teacher disciplined for her answer to a student’s question).

[173]. Cf. Tinker, 393 U.S. at 509 (protecting speech in part because it did not disrupt class); Nichol, 268 F. Supp. 2d at 560–61 (protecting a teacher’s right to wear a cross necklace).

[174]. See Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[175]. See Mayer, 474 F.3d at 479 (holding that teachers do not have First Amendment rights in their teaching).

[176]. See id.

[177]. See Garcetti, 547 U.S. at 421.

[178]. See id. at 424–25.

[179]. See id. at 421.

[180]. See id. at 424–25.

[181]. See id. at 421.

[182]. See Spanierman v. Hughes, 576 F. Supp. 2d 292, 309 (D. Conn. 2008).

[183]. Garcetti, 547 U.S. at 418.

[184]. See, e.g., Philip v. Cronin, 537 F.3d 26, 34 (1st Cir. 2008).

[185]. See Snyder v. Millersville Univ., No. 07-1660, 2008 WL 5093140, at *6, *16 (E.D. Pa. Dec. 3, 2008) (“drunken pirate” MySpace picture).

[186]. See id. at *13.

[187]. See id.

[188]. See Spanierman v. Hughes, 576 F. Supp. 2d 292, 309–11 (D. Conn. 2008).

[189]. See id.

[190]. See id. at 311.

[191]. See id.

[192]. Id. at 311.

[193]. See id. at 310.

[194]. Connick v. Myers, 461 U.S. 138, 147 (1983).

[195]. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[196]. See id. at 571–72.

[197]. See, e.g., Urofsky v. Gilmore, 216 F.3d 401, 414–15 (4th Cir. 2000).

[198]. See Nahmod, supra note 48, at 68–69.

[199]. See, e.g., Cal. Educ. Code §§ 48260-48273 (West 2006) (California truancy laws); 105 Ill. Comp. Stat. 5/26-1 to 5/26-16 (2009) (Illinois truancy laws).

[200]. See Boring v. Buncombe Cnty. Bd. of Educ., 136 F.3d 364, 370 (4th Cir. 1998) (en banc) (quoting Plato, The Republic: Book II 281 (Benjamin Jowett trans., 1942) and Edmond Burke, Letter to a Member of the National Assembly (1791), in The Philosophy of Edmond Burke 247 (Ralph Gilbert Ross ed., 1960)).

[201]. See Nahmod, supra note 48, at 68–69.

[202]. See id.

[203]. See 515 U.S. 819, 829–30 (1995); Nahmod, supra note 48, at 69.

[204]. See, e.g., City Colleges of Chicago, Academic Catalog 227 (2011), available at http://www.ccc.edu/files/2011/CCCAcademicCatalog2011.pdf (offering a composition class that teaches “reading, writing and speaking basic English” and a basic writing skills class that teaches “expression in paragraph form, sentence clarity through knowledge of sentence structure, and correct word forms”).

[205]. See AP Course Audit, C. Board, https://apcourseaudit.epiconline.org/ledger/search.php (last visited Jan. 20, 2011) (listing over 15,000 high schools that offer Advanced Placement courses).

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