ED820 Telfer Law Media PaperV1

Speech and Technology 1
Freedom of Speech and District Technology
Public School Employee Freedom of Speech and District Technology
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 brief outline of this protected speech,
look at acceptable use policies regarding electronic communication, then look at applying these
traditional freedom of speech tests with district technology. If a staff member warrants
disciplinary action based on these tests, is it the right thing to do when you consider potential
public and or media ramifications?

Public School Employee Freedom of Speech and Email
The first amendment of the United States constitution grants all individuals the right of
Freedom of Speech (United states house of representatives - amendments to the constitution,
2008). However, it wasnt really confirmed for public school employees until 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) This 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. (Jones Law Review, 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." (Jones Law
Review, 2007, p. 1; Garcetti v. Ceballos, 547 U.S. 410, 421. 2006, p12; Unites States District
Court District of Connecticut, 2008, p. 28-29).
The Garcetti 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 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.) "A teacher's right to freedom of
speech is governed by the broad authority that the legislature and courts have granted school
boards to determine curriculum and control teacher speech in the classroom." (Law Offices of
Spector, Middleton, Young and Minney, LLP, 2005, p. 1.) Therefore, 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.) "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." (United States District Court For The Northern District Of California San Jose
Division, 2005, p. 8.)
The following are several examples over the last several years many of which are
highlighted in Teachers and the Law by Pearson (2007). The following illustrates some
restrictions on freedom of speech as well as the inconsistencies with the courts.
Can a Teacher Be Dismissed for Publicly Criticizing School Policy?
Not Usually" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 123.) "free and open
debate is vital to informed decision making by the electorate. Teachers are, as a class, the
members of a community most likely to have informed and definite opinions as to how funds
allocated to the operation of the schools should be spent. Accordingly, it is essential that they be
able to speak out freely on such questions without fear of retaliatory dismissal." (Fischer, L.,
Schimmel, D., Stellman, L.R., 2007, p. 124.)

"Can a School Board Ever Restrict Teachers' Rights to Publicize Their Views?
Yes. in Pickering, Justice Marshal wrote "it is possible to conceive of some position in
public employment in which the need for confidentiality is so great that even completely correct
public statements might furnish a permissible ground for dismissal."" (Fischer, L., Schimmel, D.,
Stellman, L.R., 2007, p. 125.)
"Can Teachers Be Disciplined for Publicly Criticizing Their Immediate Superiors?
This depends on the circumstances. In Pickering, Justice Marshall wrote "certain forms of
public criticism of the superior by the subordinate would seriously undermine the effectiveness
of the working relationship between them" and thus justify appropriate discipline." (Fischer, L.,
Referencing an Alaska case where two teachers were dismissed, unlike Pickerings letter,
these false 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 contrast to the Alaska case where two teachers were dismissed for false statements
against a superior, a Texas teacher Haywood Lusk. The court concluded that "society's interest in
information concerning the operation of its schools far outweighs any strain on the teacher-
principal relationship"" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 125.)
"Would Pickering Always Protect Teachers Who Make Unintentional False Public
Statements?
Generally, but not always. In Hartford Connecticut, for example, a tenured high school
teacher was dismissed for distributing leaflets that contained a number of false statements about
her principal.....However, a federal court ruled that her distribution of these leaflets was not
protected by the First Amendment because their basic purpose was to cause dissension, and they
contained serious, damaging, and incorrect accusations that had an immediate and harmful
impact on the school." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 126.)
"Is Private Criticism Protected?
It depends on the circumstances. ...The Court rejected the notion that the First
Amendment does not protect criticism of a principal simply because of the close working
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.)
"Is Private Criticism Protected?
In [a] federal case, the court ruled that a tenured teacher, Evelyn Anderson, could be
dismissed for telling her black principal and assistant principal, "I hate all black folks." Unlike
the Pickering case, Anderson' remarks created tension between the teacher and her principals,
they caused an adverse reaction among coworkers, and they "cast serious doubt on her judgment
and general competence as a teacher" in a school district where most students were black. Under
these circumstances, the court ruled that the school board's interest in maintaining an efficient
system and in employing effective teachers outweighed Anderson's free speech interest and,
therefore , that her dismissal was not unconstitutional." (Fischer, L., Schimmel, D., Stellman,
L.R., 2007, p. 128.)
"Are Personal Complaints Protected by the First Amendment?
No. The U.S. Supreme Court ruled in Connick v Meyers that "when a public employee
speaks not as a citizen upon matters of public concern, but instead as an employee upon matters
only of personal interest...a federal court is not the appropriate forum in which to review the
wisdom" of the public agency's personnel decision." (Fischer, L., Schimmel, D., Stellman, L.R.,
2007, p. 128.)
"When Are Teachers' Statements Matters of Public Concern?
According to Connick, when they relate to "any matter of political, social, or other
concern to the community." Whether a statement is a matter of public concern also depends on
the content, form and context." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 128.)
"When Are Teachers' Comments Not Considered Matters of Public Concern?
In Illinois, a federal appeals court wrote that a series of "sarcastic, unprofessional, and
insulting" memoranda to school officials were not protected because the teacher was not
speaking as a citizen concerned with problems facing the school district, but was expressing "his
own private disagreement with policies and procedures which he had either failed to apply or
refused to follow."" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 129.)
In Washington D.C., a court did not protect a teacher's letters about overcrowding in her
classroom, which she claimed was a safety hazard. The court explained that if the reason for the
letters was the teacher's personal interests, a passing reference to safety "will not transform a
private employee grievance into a matter of public concern." And a federal appeals court ruled
against a coach who was not rehired after controversial newspaper interview about his
termination. According to the court, a teacher's personal grievance does not become a matter of
public concern simply because there is a story about it in a newspaper." (Fischer, L., Schimmel,
D., Stellman, L.R., 2007, p. 129.)

In Pittsburgh, a high school teacher alleged that she lost her coaching position in
retaliation for a faculty newsletter she published that included a discussion of staff problems such
as "undue stress" and "low esteem." A federal appeals court ruled that the teacher "did not
comment on any broad social or policy issue" but "solely on employee morale."" (Fischer, L.,

In Massachusetts, a court ruled that a coach's one-word response to a reporter - "cowards"
- describing his soccer team was not protected expression. Comments of public concern, wrote
the court, are limited to "information needed to enable citizens to make informed
decisions....disclose misconduct, " or to generate debate about significant public issues."
(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 129.)
In sum, these cases illustrate the (1) all courts recognize that matters of public concern
are protected by the First Amendment, (2) judges do not always agree about what matters
concern the public, and (3) courts have granted school boards the right to control teachers' speech
that is related to their personal interests." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p.
129.)
"How do Courts Rule When Some of a Teacher's Speech Is Protected and Some is
Not?
(1) Are the complaints involved matters of public concern; (if yes then) (2) 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. (3) Was the protected speech a "substantial or
motivating factor" in the board's action against him/her, if yes, then judgment usually goes to the
teacher if other evidence is involved and the decision would have been the same then judgment
goes to the board." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 130.) "When employee
expression cannot be fairly considered as relating to any matter of political, social, or other
concern to the community, government officials should enjoy wide latitude in managing their
offices, without intrusive oversight by the judiciary in the name of the First Amendment.
"However, the majority reiterated the following caveat from Pickering: "Because of the
enormous variety of fact situations in which critical statements by...public employees may be
thought by their superiors...to furnish grounds for dismissal, we do not deem it either appropriate
or feasible to lay down a general standard against which all such statement may be judged."" (La
Morte, M.W., 2008, p. 210-211.)
"When Are Teachers' Public Comments Not Protected?
When judges consider the time, place, manner, context and consequences of a teacher's
expression and conclude that the school's interest outweighs the teachers. Example: Virginia
decision, Jeffry Newton, a Virginia high school English teacher, was ordered to remove the
banned books pamphlets he posted outside his classroom door. The pamphlets, listed and
described recently banned books that ranged from Catcher in the Rye and The Firm to the Joy of
Gay Sex. A federal court acknowledged that a discussion of censorship is "a matter of important
public policy." But the judge ruled that the posting of material on classroom doors is an
extension of the curriculum, the curriculum is the responsibility of school officials, and "teachers
may not claim constitutional rights in order to take control of the curriculum."" (Fischer, L.,
"What about Political Speech?
The First Amendment protects teachers' rights to participate in political activity as
citizens in the community. Teachers may put political stickers on their cars that are parked at
school...However, they must be careful not to try to persuade students to adopt their personal
political views. Furthermore, teachers may be prohibited from using school time to engage in
partisan politics. Thus a federal decision upheld a school policy that prohibited political activity
by employees on school grounds during school hours." (Fischer, L., Schimmel, D., Stellman,
L.R., 2007, p. 132.)
"Fowler V Board of Education of Lincoln County
Consciously or otherwise, teachers... demonstrate the appropriate form of civil discourse
and political expression by their conduct and deportment in and out of class. Inescapably, like
parents, they are role models, Fraser.." (La Morte, M.W., 2008, p. 220.)
"When Discussing a Contract at an Open Meeting, Can a School Board Prohibit
Nonunion Members from Speaking?
No. During contract negotiations in Madison, Wisconsin, a nonunion teacher was allowed
to address the school board concerning a controversial contract provision, over the objection of
the union.... The Court wrote "when the State has opened a forum for direct citizen involvement,
it is difficult to find jurisdiction for excluding teachers...who are most vitally concerned."
Whatever its duties as an employer, when a school board sits in public meeting to hear the views
of citizens, it cannot be required to discriminate against speakers who are not members of the
union." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 132-133.)
"Are Teachers at Private Schools That Receive State Funds Protected by the First
Amendment?
No. This was a ruling of the U.S. Supreme Court in a case concerning teachers who were
dismissed from a private school for publicly opposing policies of the administration and
publishing a letter protesting the school's picketing policy. Although the state paid over 90
percent of the school's budget, the Court ruled that the acts of the school in dismissing the
teachers did not become acts of the government because the government did not influence those
actions. Thus the First Amendment did not apply to this case because the discharge of the
teachers was not a state action." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 133.)
"Do Whistleblower Statutes Protect Teachers?
Yes. All 50 states have Whistleblower protection statutes. Generally, they cover teachers
and other public employees who in good faith report a violation of law. Many also cover
employees who report gross waste of public funds, or specific dangers to public health, safety or
welfare." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 133.)
"What is Academic Freedom?
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.) [T]he government, as an employer, must have
wide discretion and control over the management of its personnel and internal affairs. This
includes the prerogative to remove employees whose conduct hinders efficient operation and to
do so with dispatch." (Jones Law Review, 2007, p. 1.)
"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.)
EXAMPLE
A drama teacher's reassignment due to her choice of plays for a statewide competition
was upheld in Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998),
cert. denied, 526 U.S. 813 (1998),...
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 that curriculum development should
be left to the local school authorities rather than to teachers. In its decision, the court held that the
play was a part of the curriculum and the choice of plays was not a matter of public concern,
consequently, not protected speech,
"Conduct 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.)
"In summary, there is a difference between the free speech rights of a university professor
when expressing his or her point of view in Sproul Plaza and those of a fifth grade elementary
school teacher in expressing a point of view as part of classroom instruction." (Northern District
of California San Jose Division, 2005, p. 9.) " In fact, the complaint alleges that there are specific
standards for instructional speech and that the standards are allegedly too strict. Indeed, the
Court takes judicial notice that a K-12 classroom in a public elementary school is a nonpublic
forum. " (Northern District of California San Jose Division, 2005, p. 9.)
"Does Academic Freedom Allow Teachers to Disregard the Text and Syllabus?
No. A federal court considered this question when a biology teacher was not rehired
because he overemphasized sex in his health course. The teacher explained that his students
"wanted sex education and mental health emphasized," and he agreed to "only touch on the other
topics covered by the assigned text and course syllabus."The court concluded that academic
freedom is not " a license for uncontrolled expression at variance with established curricular
content."" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 138.)
..a federal court held 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.)
Notes on Mt. Healthy City School District Board of Education v. Doyle, 429 US 274
The Court's opinion in Doyle reaffirms the doctrine that non-tenured teachers have First
Amendment rights, and they may established claim to reinstatement if the reason for not being
rehired was in violation of these rights. However, as the Court stressed, engaging in
constitutionally protected conduct may not prevent an employer from dismissing a teacher on the
basis of his or her total performance record." (La Morte, M.W., 2008, p. 214-215.)
"Can Teachers Be Punished for Discussing topics or Distributing Materials That
Are Not Relevant?
Yes. Academic freedom does not protect materials, discussions, or comments that are not
relevant to the assigned subject." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 138.)
"Is Academic Freedom the Same in Public Schools and in Colleges?
No. The scope of this freedom is broader in colleges and universities than in public
schools. In Mailloux v. Likey, Judge Wyzanski explained that his is so because in secondary
schools "the faculty does not have the independent traditions, the broad discretion as to teaching
methods, nor usually the intellectual qualifications, of university professors.... Some teachers and
most students have limited intellectual and emotional maturity... While secondary schools are not
rigid disciplinary institutions, neither are they open forums in which mature adults, already
habituated to social restraints, exchange ideas on a level of parity. Moreover... a secondary
school student, unlike most college students, is usually required to attend school classes and may
have no choice as to his teacher." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 143.)
"School facilities may be deemed to be public forms only if school authorities have "by
policy or by practice" opened those facilities "for indiscriminate use by the general public," ..or
by some segment of the public, such as student organization." (Roth, S. V., Bennett, B., 1997, p.
4.)
"Are a Teachers' Controversial Responses to Students' Questions Protected?
They might be if they relate to a matter of public concern and are not disruptive."
(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 138.) According to this judge.."if a question
involves math [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.)
"Does Academic Freedom Protect the Assignment of Controversial Materials?
[a] 1969 appeals court decision concluded that the sensibilities of offended parents "are
not the full measure of what is proper in education."" (Fischer, L., Schimmel, D., Stellman, L.R.,
2007, p. 135.) Parducci and Keefe reflect the views of those courts that place a high value on
academic freedom. But these decisions do not man that teachers have the right to use any
language in the classroom. Even the Keefe case acknowledged that some regulation of classroom
speech "is inherent in every provision of public education." Thus, a judge's decision about
whether offensive language can be prohibited 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, for example, 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 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.""
"Can Teachers Be Punished If Their Use of Approved Materials Causes Substantial
Disruption in the Community?
No." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 139.)
"Can a Teacher Be Punished for Showing an R-rated Film to Students?

Probably, although it may depend on the students, the movie and how it is shown. An
example of how not to do it is provided by the case of Jacqueline Fowler, a tenured Kentucky
teacher, who was fired for showing an R-rated film, Pink Floyd - The Wall, to students in grades
9 and 11.
Fowler argued that the film contained "important, socially valuable messages." But a
federal appeals court held that showing the film was not a constitutionally protected educational
activity. The judge concluded that by introducing a "controversial and sexually explicitly move
into a classroom of adolescents without preview, preparation, or discussion," Fowler "abdicated
her function as a n 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
Prohibited?
Not usually." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 140.)
In a Massachusetts case, a federal appeals court explained that a school may restrict a
teacher's classroom activities if two conditions are met. First, the restriction must be "reasonably
related to a legitimate pedagogical concern" According to the court, this will depend on "the age
and sophistication of the students, the relationship between teaching method and valid
educational objective and the context and manner of the presentation." Second, the school must
have notified the teacher about what conduct was prohibited....However, the court did not hold
that schools must "expressly prohibit every imaginable inappropriate conduct," since such a
requirement would be an "impossible and undesirable burden." Rather, the question is: Was it
reasonable for the teacher to know that her method was prohibited?" (Fischer, L., Schimmel, D.,
Stellman, L.R., 2007, p. 141.)
"When Are Controversial Methods Not Protected?
When methods are inappropriate for the age and maturity of the students., when they are
not supported by any significant professional opinion, or when they are prohibited by reasonable
school policy, they are not protected by academic freedom. " (Fischer, L., Schimmel, D.,
Stellman, L.R., 2007, p. 141-142.)
A New York court upheld the punishment of a tenured high school English teacher for
repeatedly using the words "penis," "clitoris," and other sexual imagery and for failing to follow
administrative directives to de-emphasize the sexual aspects of the literacy works he dealt with in
class. In rejecting the teacher's academic freedom defense, the court ruled that school officials
must be permitted to establish the curriculum in a way that does not offend community values."
"DISRUPTIVE TO SCHOOL ACTIVITIES
The school district judged that Spanierman's behavior on his MySpace page was "likely
to disrupt school activities." It is on this point that the court drilled down to Spanierman's
contacts with his students. Excerpts of a number of exchanges with students were included in the
opinion. And while to some these exchanges may seem innocuous, the court concluded as
follows:
In the court's view, it was not unreasonable for the Defendants to find that the Plaintiff's
conduct on MySpace was disruptive to school activities. The above examples of the online
exchanges the Plaintiff had with students show a potentially unprofessional rapport with
students, and the court can see how a school's administration would disapprove of, and find
disruptive, a teacher's discussion with a student about "getting any" (presumably sex), or a threat
made to a student (albeit a facetious one) about detention." (Neuburger, J.D., 2008, p. 2.)
"The school district judged that Spanierman's behavior on his MySpace page was "likely
to disrupt school activities." It is on this point that the court drilled down to Spanierman's
contacts with his students. Excerpts of a number of exchanges with students were included in the
opinion. And while to some these exchanges may seem innocuous, the court concluded as
follows:" (Neuburger, J.D., 2008, p. 2.)
"This is not the first case in which a teacher, or an aspiring teacher, was discharged or
disciplined for conduct involving a MySpace page. 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 (the
case documents are available here), 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.)
"Can a School Board Require or Prohibit the Use of Textbooks?
Yes...Thus when teachers and school boards have a legitimate disagreement about what
tests to use, the boards have the ultimate authority to make these decisions in elective as well as
in required courses." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 135.)
"Are Curricular Disputes Matters of Public Concern?
Recent decisions indicate that courts do not consider disagreements between teachers and
school officials about curricular and curricular - related issues to be matters of public concern"
(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 135.) The court noted that academic
freedom "has never conferred upon teachers the control of public school curricula."" (Fischer, L.,

"But the court ruled that he could not be fired for discussing controversial issues. The
judge acknowledged that a teacher has a duty to be "fair and objective in presenting his
personally held opinions" and to ensure that different views are presented." (Fischer, L.,
Schimmel, D., Stellman, L.R., 2007, p. 136-137.)
"On the other hand, teachers have no right to promote views in school that contradict the
curriculum. This was illustrated by the 2000 case of Robert Dawns, a Los Angeles high school
teacher who wanted to post material in opposition to the school's bulletin boards that promoted
tolerance during Gay and Lesbian Awareness Month. A federal appeals court ruled that a school
may not only advocate tolerance but also may prohibit contrary speech by its teachers. The court
concluded: "Just as a school can prohibit a teacher from posting racist material" during Black
History Month, "it may prohibit [Downs] from posting intolerant materials during Gay and
Lesbian Awareness Month."" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 137.)
"Do Teachers Have the Right to Preach Their Religious Beliefs in School?
No." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 137.)
"Can a Teacher Be Punished for Failing to Submit Lesson Plans?
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 period." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 142.)
"the school district had "final authority to review and assign grades" and therefore did not
violate [teacher's] academic freedom by requesting her lesson plans and grade book.
" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 142.)
"Is It Legal for a School to Refuse to Rehire a Teacher Because of Disagreement
over Teaching Methods and Philosophy?

Probably. .. The issues in this case, wrote a federal court, is not which educational
philosophy has greater merit but whether a school "has the right to require some conformity" to
its educational philosophy and whether it may decline to hire a teacher whose methods are not
conducive "to the achievement of the academic goals they espoused" In ruling for the
administration, the court wrote that academic freedom "does not encompass the right of a non
tenured teacher to have her teaching methods insulated from review."" (Fischer, L., Schimmel,
D., Stellman, L.R., 2007, p. 143.)
In summary, the key questions for determining public speech and possible disciplinary
action are:
C. The Pickering-Connick Balancing Test (two-step inquiry before Garcetti)
1. Whether the employee is speaking as a citizen upon matters of public concern
a) The Connick prong
2. If so, balance the employees interest as a citizen in commenting on matters of
public concern against the employers interest, as an employer, in promoting effective and
efficient public services.
a) The Pickering balancing test
3. Where does the interest of the public figure in the Pickering-Connick test?
a) San Diego v. Roe (2004)
(O'Day, T.,2008)
"Subsequent decisions have discussed a two-step process to determine whether a teacher's
speech enjoys First Amendment protection. First, the disputed speech must address a matter of
"public concern." Second, the interests of the teacher must be balanced against the interests of
the state as employer in rendering a public service through its employees. This second
determination, known as "Pickering balancing," may be 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.)
Now to take this in to the virtual world of electronic communication we will first look at
what all school districts should already have in place. The WASBO association had a brief
developed by Lathrop and Clark for guidance on what an acceptable use policy or AUP should
contain. These qualities will then be tested against the AUP for the Oregon School District.
The following issues highlight a well written AUP:
"elements of an effective AUP, which should include the following:
(1) a purpose statement;
(2) a descriptions of security measures;
(3) an explanation of the limitations on user privacy rights;
(4) a statement prohibiting use related to discrimination, harassment, and defamation;
(5) copyright infringement prohibitions,
(6) a description of other unacceptable uses;
[7] an explanation of monitoring, supervision, enforcement, and penalties, and
(8) acknowledgement by the users of receipt of the AUP." (Lathrop & Clark, LLP, 2008,
p. 1.)
These eight qualities will be further explained using the legal brief followed by the
portion of the Oregon School District AUP that meets that criteria.
(1) Purpose Statement

The introduction of the AUP should have an explanation that covers all the internal and
external systems that make up the system. This would include cell phones, pda systems, laptops,
the routers, printers, etc. as well as externally contracted providers and the systems they use to
assist the district in fulfilling the mission of educating students. Furthermore it should state that
students and staff use the various systems to meet and support the district mission (Lathrop &
Clark, LLP, 2008, p. 1.)
Limitations are also highly recommended. Starting with the explicit purpose of
supporting the districts mission, limiting use of these systems is crucial. This will help reduce
the chance of personal use such as selling items for any kind of economic benefit. (Lathrop &
Clark, LLP, 2008, p. 2.) In the Oregon School District the technology department has developed
forums for staff to place items for sale and or purchase, sort of an internal electronic swap meet.
However, enforcement of this is haphazard, especially when it comes to Badger Football Tickets.
This is an important point, having a policy prohibiting economic gain, yet not enforcing it,
creates a problem when a staff member is disciplined for something and others have not.
Within the purpose statement it should be very clear that the system is a privilege and that
there is no expectation of privacy. It should be clear that Internet Use and E-Mail are not private
in nature and subject to district oversight. In addition, it should state that all aspects of the system
used by district officials can (a) inspect information stored on its computer system, including
district computers, whether desktop or laptop (b) search and read e-mail messages stored on
either the district's computer network or by the district's contracted computer services; and (c)
review electronic communications, including the current range of electronic communication
devices owned and used by the school district, as well as new devices and communication
methods that bay be put in use." (Lathrop & Clark, LLP, 2008, p. 3-4.) Furthermore, rules should
be established for governing behavior when using personally identifiable information as well as
student records (Lathrop & Clark, LLP, 2008, p. 2-3.)
School officials have an obligation to provide employees and students with a work and
school environment free of discrimination and harassment (a form of discrimination)

Defamation is an intentional publication of a false communication that injures another person's
reputation or good name. If this information is distributed by an employee despite its known
inaccuracy, the employee's actions could be attributed to the district." (Lathrop & Clark, LLP,
2008, p. 4.)
[W]hen the employer knows or has reason to know that such harassment is part of a
pattern of harassment that is taking place in the workplace and in settings that are related to the
workplace, "employers have a duty to take effective measures to stop co-employee harassment."
(Lathrop & Clark, LLP, 2008, p. 5.)

"An AUP, therefore, should contain a statement that is consistent with the district's
general policy against discrimination, including harassment." (Lathrop & Clark, LLP, 2008, p.
5.)
"Employees should be warned against the excessive use of e-mail during the work day
and the potential for interference with their ability to perform their job responsibilities
Whether a restriction on e-mail use is a violation of employee rights will largely depend on the
specific facts of a particular case." (Lathrop & Clark, LLP, 2008, p. 6.)
"School boards will also need to review any collective bargaining agreements to make
sure that any policy they adopt is not in conflict with any provision in the agreements regarding
the use of e-mail by bargaining unit members." (Lathrop & Clark, LLP, 2008, p. 7.)
"School officials should, therefore, establish procedures to systematically and regularly
monitor the computer usage by all of its users." (Lathrop & Clark, LLP, 2008, p. 7.)
"With regard to students, school officials should require staff supervision of students
computer usage." (Lathrop & Clark, LLP, 2008, p. 7.)
"School officials should (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." (Lathrop & Clark,
LLP, 2008, p. 7.)

"Users should be reminded that all rules of conduct and acceptable behavior in other
board policies, employee contracts or collective bargaining agreements, and student handbooks,
as well as applicable statutes, apply to the use of the district's computer system." (Lathrop &
Clark, LLP, 2008, p. 7.)
Oregon School Districts policy contains all of the following and some of the exceptions
Purpose Statement
771.02 ECS is provided to staff/employees to assist in instruction, perform work

assignments, conduct research, and communicate with others. Access to ECS is a privilege and
not a right. The district expects the staff/employees will use the ECS in a responsible and ethical
manner and in conformance with the following rules. The district reserves the right to restrict or
revoke any staff member/employee authorization for use and access to ECS at any time for any
reason. (Oregon Schl.Dist. B.O.E., 2007, p. 1)
771.07 The District shares responsibility for control over access to inappropriate Internet
materials. In light of that responsibility the District utilizes hardware and software that is
designed to filter and block inappropriate sites and high risk activities. The District reserves the
right to block sites that do not enhance classroom activities. This filtering will at a minimum
meet the requirement of the Childrens Internet Protection Act to provide protection from
obscene, pornographic and other materials considered harmful to minors (Oregon Schl.Dist.
B.O.E., 2007, p. 3)
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)
771.03 The following uses of ECS are prohibited:
771.03A Downloading, displaying, viewing, accessing or attempting to access, storing or
transmitting any images, cartoons, messages or material which are sexually explicit or that may
be construed as threatening, harassing, offensive or intimidating to others based upon gender,
race, national origin, age, disability, religion, sexual orientation or any other basis protected by
applicable law; (Oregon Schl.Dist. B.O.E., 2007, p. 1)
771.03E Use which is illegal, including the violation of copyright, gambling and
pornography laws; (Oregon Schl.Dist. B.O.E., 2007, p. 1)
Taking the Pickering case, were Pickering to write that letter via email, using the school
districts computer system would it make a difference? Remember in the Pickering case If
Pickering wrote it from his home computer using his own email account would it make a
difference? Remember in 'Pickering v. Board of Education 391 U.S. 563 (1968), a Township
High School teacher who was dismissed after writing a letter to a local newspaper which
criticized how the Township Board of Education and the district superintendent had handled past
proposals to raise new revenue for the schools. The claim that his writing the letter was protected
by the First and Fourteenth Amendments was rejected by the Board of Education. He appealed
the Board's action to the Circuit Court of Will County and then to the Supreme Court of Illinois,
which both affirmed his dismissal. The Supreme Court of the United States agreed the teacher's
First Amendment right to free speech were violated and reversed the decision of the Illinois
Supreme Court. {{96 Wikipedia contributors ;}}
What if Pickering was at home but used the school email account? If the districts AUP
states
Lets look at Garcetti. 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 (Wikipedia Contributors, 2008).
Would using a district computer to write his memo changed the outcome?
Scenario one, a wellespected 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 two, 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 bargaining unit for the local union. What do you do?
Regardless of where speech takes place it is not the person who determines whether it is
protected or not, the court determines that based several factors. If dismissing an employee and
the speech is protected it cannot be the sole reason for dismissal. If speech is not protected then it
is not the courts place to decide the outcome of a situation. If it is protected speech then the
balancing tests must be used.
As 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.)

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Speech and Technology 1

Freedom of Speech and District Technology

Public School Employee Freedom of Speech and District Technology

public and or media ramifications?

Public School Employee Freedom of Speech and Email

Freedom of Speech (United states house of representatives - amendments to the constitution,

Court District of Connecticut, 2008, p. 28-29).

Division, 2005, p. 8.)

restrictions on freedom of speech as well as the inconsistencies with the courts.

Can a Teacher Be Dismissed for Publicly Criticizing School Policy?

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

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

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

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

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

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

"Is Private Criticism Protected?

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

"Is Private Criticism Protected?

L.R., 2007, p. 128.)

"Are Personal Complaints Protected by the First Amendment?

"When Are Teachers' Statements Matters of Public Concern?

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

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

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

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

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

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

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

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

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

Morte, M.W., 2008, p. 210-211.)

"When Are Teachers' Public Comments Not Protected?

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

"What about Political Speech?

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

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

"Fowler V Board of Education of Lincoln County

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

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

Nonunion Members from Speaking?

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

"Do Whistleblower Statutes Protect Teachers?

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

"What is Academic Freedom?

do so with dispatch." (Jones Law Review, 2007, p. 1.)

cert. denied, 526 U.S. 813 (1998),...

consequently, not protected speech,

(Roth, S. V., Bennett, B., 1997, p. 2.)

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

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

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

Are Not Relevant?

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

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

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

"Does Academic Freedom Protect the Assignment of Controversial Materials?

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

"Can Teachers Be Punished If Their Use of Approved Materials Causes Substantial

Disruption in the Community?

No." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 139.)

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

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

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