Teachers and the 1st Amendment - Part I

Part I - Protected Speech

Question: When is a teacher's speech protected under the 1st Amendment?

ANSWER: A public teacher’s speech is protected when:

1.     The teacher is speaking as a regular citizen rather than a public employee; AND

2.     The subject matter of the speech is a matter of public concern; AND

3.     Interest in preserving the efficiency of the school does not outweigh the teacher's 1st Amendment interest.

Element 1 – Speech Not Pursuant To Employment. 

In 2006, the Supreme Court ruled that speech conducted according to one's employment is not protected.[1] In that case, a prosecutor claimed he was demoted because of a memo he distributed criticizing the then-District Attorney Gil Garcetti. This 5-4 decision altered the traditional test (discussed below) by essentially prohibiting claims made of 1st Amendment violations when speech was made according to a public employee's duties. 

Pickering-Connick Test

Element 2 – A Matter of Public Concern. 

In 1983, in Connick v. Myers (another 5-4 decision), the Court emphasized the requirement that a public employee's speech is protected when such speech is a matter of public concern while balancing the employer’s interest. In Connick, an assistant district attorney was fired for refusing a transfer and undermining his authority by passing out a questionnaireconcerning the district attorney’s office. The Court there made it clear the criteria for public concern was fact-intensive and must be reviewed in context, form, and as a whole.[2] Since Myers's questionnaire was focused on internal office operations rather than a broad moral or social concern, the Court ruled Myers's speech was not protected by the 1stAmendment. The result of Connick to future claims essentially requires a claimant to first establish that their speech was of “public concern” before moving to the balancing test set out in Pickering (see Element 3). 

Element 3 – Balancing the Interest of the Employer 

The third part of the test often referred to as the Pickering Balancing Test, comes from the landmark Pickering v. Board of Education case. There a science teacher was terminated after he published an article that was critical of the expenditures of the board in areas of athletics rather than academics. Reversing the prior Illinois Supreme Court ruling, the U.S. Supreme Court held in favor of Mr. Pickering and set form the balancing test listed above.[3]

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[1] Garcetti v. Ceballos, 547 U.S. 410, 410

[2] Connick v. Myers, 461 U.S. 138, 147–48.

[3] Pickering v. Board of Education, 88 S.Ct. 1731