Teachers and the 1st Amendment - Part II
Part II - Teacher Speech Under The Standard
When evaluating a teacher's speech, leaders must first determine if the teacher was indeed speaking pursuant to their official duties. In many cases, this is easy to determine. A teacher's speech in the classroom (virtually now), while conducting their daily duties or in accordance with assignments would likely not be protected by the First Amendment.
According, gossip, venting, or general complaints would likely not be protected as they would not be "matters of public concern". However, more specific complaints on public policy issues, such as board expenditures or safety measures would likely pass the first hurdle. For example, a teacher who sends out an email of complaints with the administration would likely not meet the first element, whereas a social media post concerning the need for SRO’s in schools would.
If the speech was not pursuant to their duties and it was a matter of public concern then a teacher must finally pass the last hurdle of the Pickering Balancing Test. A teacher’s speech that might normally be protected may still not be upheld if such speech substantially disrupts the efficiency of the school so that the disruption outweighs the value of the speech. For example, while a teacher may be free to make social media post regarding the need for SRO's to improve school security, they cannot go on the loudspeaker and make announcements directing students to walk out in protest. Similarly, the widespread use of social media may provide teachers the same ability to spread such speech that likely might not be protected based on the resulting circumstances that may be involved.
Teachers need to be aware of state employment laws and local school policy concerning their speech, use of technology, and social media. Violations of such policies can result in disciplinary action, including termination, and the courts have not smiled on plaintiffs who raise the 1st Amendment to justify insubordination.
Finally, it’s important to note that information gained solely from employment would not be protected as Free Speech. For example, the 1st Amendment does not allow an educator to share information otherwise protected under FERPA on social media, or disclose information that could have only been gained because of their employment. However, there is an exception that covers speech given under Oath even when that speech relates to public employment or information gained through that employment. Lane v. Franks, 573 U.S. 228.
We hold 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.
Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960, 164 L. Ed. 2d 689 (2006)