Chapter 6
PEDG 5344
William Allan Kritsonis, PhD
Pickering v. Board of Education Pickering, a teacher, was dismissed for writing and publishing in a
newspaper a letter criticizing the Board’s allocation of school funds between educational and athletic programs and the Board’s and superintendent’s methods of informing, or preventing the informing of, the school district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The Board, as well as the lower courts, found that the letter, which contained false statements, was detrimental to the interests of the school system and that the interest of the school should take precedence over the teacher’s claim to freedom of expression.
Pickering v. Board of Education The US Supreme Court ruled unanimously that the
school bard was wrong in firing the teacher. Since the statements in the letter were not aimed at any person with whom the teacher would come in contact in carrying out his duties, and the falsehoods were not carelessly made nor did they impede school operations, the Supreme Court concluded that the teacher should not have been dismissed.
Pickering v. Board of Education Pickering is an important case because it recognizes that
educators, and by implication, all public employees do have a right to freedom of expression as citizens in the community.
It also conveys to administrators the burden of documentation they must shoulder to take adverse action against an employee who they believe has abused the right.
If it can be shown that the statements are made recklessly or with knowledge of their falsity, that school functioning or the teacher’s performance is impaired, or that the superior-subordinate relationship is undermined, then sanctions, including dismissal, might appropriately be brought against the employee.
**Pickering recognized that educators have a substantial right to freedom of expression as citizens of the community and conveys to administrators the burden of documentation in order to take adverse action against the employee.
Nieto v. San Perlita ISD
In 1990, Frank Nieto, a school maintenance supervisor, was discharged after he complained that the school’s basketball coach was abusing students. Nieto had conducted his own investigation, which included puling students out of class for questioning. Teachers complained that his actions were highly disruptive.
The court held that Nieto’s speech was of public concern, but the public interest was outweighed by the district’s interest in “promoting the public services it performs.”
Tinker v. Des Moines School District Students wore armbands in opposition of the Vietnam war and were
suspended; their parents sued citing infringement of their children’s right to free speech.
The US Supreme Court agreed with the students noting that “school officials do not possess absolute authority over their students.” The court did not adopt an “anything goes” viewpoint; it was emphasized that student expression in or out of class that “materially disrupts classwork or involves substantial disorder or invasion of the rights of other is, of course not immunized by the constitutional guarantee of freedom of speech”. Since the wearing of the armbands generated no significant disturbance within the school, the court decided for the students.
Alaniz v. San Isidro
The 5th Circuit upheld a lower court ruling in favor of the school district’s deputy tax assessor-collector, who was fired after an opposition political party won control of the board. Alaniz had actively supported the policies and candidates of the incumbent party, headed by her brother-in-law. She maintained she would not have been fired but for her 1st amendment-protected political activities.
The trial court awarded Alaniz $51,000 in back pay and $40,000 in compensatory damages for mental anguish and emotional distress and ordered her reinstated to her position.
Whalen V. Rocksprings ISD
A 7th grade science teacher who became involved in an extended question-and-answer session with her class that encompassed matters related to sex education. In the course of responding to questions about AIDS, contraceptives, and the development of sperm, the teacher engaged in what school officials considered unnecessarily graphic description harmful to the emotional well-being of students of that age and grade level in the largely rural community. For example, with regard to learning more about sperm, the teacher advised male students in her class to go home, lock the bathroom door, and masturbate. The teacher was dismissed mid-year following a due process hearing, a dismissal the commissioner of education upheld.
Whalen V. Rocksprings ISD
The commissioner stated that for a teacher to show that his or her comments were protected by academic freedom, the teacher has to show that the comments were reasonable relevant to the subject matter of the class, had a demonstrated educational purpose, and were not proscribed by a school regulation.
**While teacher discussion rights in the classroom—as contrasted with the right to control teaching methodology—are protected under the weight of judicial authority, they can be abused and lose their protection.
Expression Within the School
There are three dimensions: (1) expression outside the classroom but on the
school grounds (2) classroom academic freedom (3) retaliation for speaking out about suspected
wrongdoing under the Texas Whistle Blower Statute
Expression Within the School
In 1979, the US Supreme court ruled that the 1st and 14th amendments can, under certain circumstances, protect private communication between a public-school teacher and a school principal.
At the same time, the court stated that since subordinate-superior relations are particularly sensitive, the content of what is said, as well as the time, place, and manner in which it is said, can be taken into account in deciding what is and is not constitutionally protected.
Expression Within the School
In 1983 (Perry Education Assn v. Perry Local Educator Assn) the Court decided that school mailboxes are not automatically “public forums” available to teachers, the associations, and others to disseminate information.
Expression Within the School
Administrators must be sensitive to employee 1st amendment rights when making decisions about school mailboxes, Web sites, and similar types of communication systems.
Expression Within the School
Connick v. Myers (1983) an assistant DA was fired for distributing questionnaires
that dealt with internal working conditions; the question involved the issue of whether employee expression concerning on-the-job complaints is constitutionally protected and thus cannot be used in a negative employment decision.
The Court ruled that such expression is not protected and thus can serve as grounds for dismissal. In terms of school, an administrator must determine whether the expression is protected by the 1st amendment—if the expression does not deal with community interests, then in general it is not protected.
Expression Within the School
An employee’s speech is protected when the employee speaks as a citizen on matters of public concern but not when he or she speaks on matters only of personal interest.
Expression Within the School
In 1995, the 5th circuit identified a 3-part test for determining when particular speech by a public employee is protected: (1) the speech must have involved a matter of
public concern (2) the public employee’s interest in commenting
on matters of public concern must outweigh the employer’s interest in promoting efficiency
(3) the employee’s speech must have motivated the decision to discharge the employee
Texas Whistleblower Act In 1983, the legislature passed a law known as “The Whistleblower Act”
prohibiting a governmental body from retaliating against an employee who reports a violation of law to the appropriate law enforcement authority if the report is made in good faith.
Each governmental body is required to post a sign in a prominent place informing employees of their rights under this act. A violation of school policy is not within this definition (Lane v. Galveston ISD).
An employee or appointed officer who is fired or otherwise penalized for reporting may sue for injunctive relief, money damages, court costs and attorney’s fees (a cap on the amount is set).
The Texas Attorney General has advised that a school district that prevails in a whistle-blower lawsuit is under no obligation to pay the non-prevailing employee’s legal fees.
The employee has the burden of proving that the adverse personnel action was in retaliation for reporting a violation of the law, through the law presumes this to be the case if the termination occurs within ninety days of making a report.
The governmental entity is not liable if it can show that it would have made the same negative employment decision in the absence of the employee’s reporting.
Texas Whistleblower Act
In Castleberry ISD v. Doe, the court made clear that the 90 day timeline stops while the grievance is being processed.
School districts can bear a heavy burden of responsibility if they uphold retaliatory action against an employee who reports in good faith an alleged violation of the law.
The Texas Supreme Court has defined “good faith” to mean an honest belief that the conduct is a violation of the law, a belief that is reasonable in light of the employee’s training and experience.
**Example of test question: Mr. Smith brought into class an unapproved book. Mrs. Farmer disapproved of the book and turned in the teacher. What could be the outcome? According to the Texas Whistleblower Act…
Academic Freedom
Involves four sometimes clashing interests: (1) interests of the state and local school board in
seeing that the curriculum reflects the collective will of the community
(2) the interest of the student in having access to knowledge and ideas
(3) the interest of the teacher as a professional in controlling class discussions & choosing instructional methodologies
(4) the interest of parents in controlling their children’s education.
Academic Freedom
Epperson v. Arkansas- Supreme Court struck down an Arkansas statute forbidding the teaching of evolution in public schools The 5th Circuit court of appeals has ruled that public-school
teachers do have a 1st and 14th amendment liberty right to engage in classroom discussion.
Profanity in the classroom has no constitutional protection. The use of profanity in a college classroom to “motivate” students is not related to any matter of public concern and is not protected by the 1st amendment.
The 5th Circuit ruled that academic freedom does not include the right to award a grade (Hillis v. SFASU)
Academic Freedom Given the tenuous nature of the teacher’s claim to classroom
academic freedom, the following guidelines should be observed: Teachers should be careful not to use their freedom of expression
rights within the school in such a way as seriously to erode their ability to work with school administrators and colleagues.
Before teachers make any determination for themselves about what they can or cannot do in the classroom, they should endeavor to ascertain what school policy is with respect to curriculum practices and the role of the teacher.
While teachers to have a constitutional right in Texas by virtue of the 5th circuit decision in Kingsville to engage in classroom discussion, the right has not been accorded much support by the Commissioner of Education. Teachers should make sure that the discussion is germane to their subject-matter area, is balanced, and has not undermined their effectiveness.
Teachers should proceed with caution when it comes to selecting materials and teaching methodology, as well as awarding grades. It is always best to check with board policy and administrative directives before proceeding.
Shelton v. Tucker (1960)
US Supreme Court struck down an Arkansas statute requiring teachers to file affidavits listing their membership in organizations for the previous 5 years.
Ch 617 of the TX government code
recognizes that “An individual may not be denied public employment because of the individual’s membership or non-membership in a labor organization.
TEC 21.407
prohibits a school district from directly or indirectly requiring or coercing a teacher to join a group or to refrain from participating in political affairs.
TEC 21.408
provides professional employees have a right to join or not to join any professional organization or association.
Hazelwood School District v. Kuhlmeier (1988)- Concerning school sponsored student publications The Supreme Court ruled that school administrators have broad
censorship powers over student newspapers produced under the auspices of the school as long as their actions are based on “legitimate pedagogical concerns” and as long as the school has not by policy or practice converted the school-sponsored student newspaper into a public forum where controversial views can be freely expressed. When students create messages on their own outside of school
hours without using school equipment, they normally are beyond the purview of the school.
When classroom expression involves threats, students are less likely to find their speech constitutionally protected.
Clark v. Dallas ISD
Concerning non-school sponsored publications
Students wanted to meet outside the cafeteria to pray, read the bible, and distribute religious materials to students as they exited school buses. The school rejected the plan based on 3 premises but a federal district court rejected all 3 premises based on Tinker.
Clark v. Dallas ISD
Most TX schools have adopted a prior review policy with 5 components:(1) criteria that spell out what is forbidden (2) procedures by which students submit proposed materials to be
reviewed (3) a brief period of time during which the principal or other school
official must make a decision (4) an appeal procedure(5) a reasonable time during which the
appeal is to be decided. These prior review systems must be carefully worded and applied
to withstand constitutional scrutiny. School officials also have the right to determine the time, place, and manner of distribution of non-school sponsored materials (Shanley v. Northeast ISD).
These prior review systems must be carefully worded and applied to withstand constitutional scrutiny. School officials also have the right to determine the time, place, and manner of distribution of non-school sponsored materials (Shanley v. Northeast ISD).
Concerning Student Freedom of Association
High school students have a right to assemble peacefully for expressive purposes in the vicinity of the public school, and students at the collegiate level have a relatively unfettered right to assemble and to associate
TEC 37.105
Students at the secondary level also have a right to come together for expressive purposes on the public school campus as long as no material disruption or invasion of the rights of others occurs; the right of association does not automatically extend to non-students.
Does the right to associate restrict school officials in deciding which student groups may or may not function as school-recognized organizations?It depends on the type of group and the
legitimacy of the school’s reasons in denying status as a campus organization to a student group.
TEC 37.121
It is a crime for students or non-students to be a member of or pledge membership to fraternities, sororities, etc in public elementary or secondary schools
Can a school district refuse to recognize a controversial student organization, such as a gay student rights club, if the students obtain a faculty sponsor and meet other criteria for school recognition?
In 2002, a federal court dismissed a case (Caudillo v. Lubbock ISD) when students were not allowed by the school board to begin an organization called GAP Youth (Gay and Proud Youth Group).
