Expression and Associational Rights

William Allan Kritsonis, PhD

Educator Rights of Expression

The Constitution protects all persons, regardless of profession. Therefore, “[a]ny inhibition of freedom of thought, and of action upon thought in the case of teachers brings the safeguards of [the First Amendment] vividly into operation. Nevertheless, because teachers are not only private citizens, but also agents of the state, courts have held that “the rights of teachers in public schools are not automatically coextensive with the rights of adults in other settings.” The following is an overview of how the courts have weighed these competing interests in determining the rights of public school teachers.

Expression outside the school

The extent of a teacher’s First Amendment freedoms depends largely upon thecontent of the expression as well as the context in which the teacher chooses to exercisethose freedoms. The Supreme Court has spoken clearly in defense of the FirstAmendment rights of public school teachers in their capacities as private citizens.

Pickering Board of Education (1986): a teacher was fired because he sent a local newspaper

a letter he had written criticizing the Board of Education concerning past efforts to raiserevenue for schools. The Supreme Court held that “a teacher’s exercise of his right tospeak on issues of public importance may not furnish the basis for his dismissal frompublic employment.” The Court reasoned that because the letter concerned “a matter ofpublic interest” and there was no evidence that it interfered with (1) his or her ability toperform classroom duties or (2) the regular operation of the school, the teacher’s rightswere no different than those of any other member of the general public. Thus, the teachercould not be dismissed for the exercise of his freedom of speech.

Expression outside the school

The U. S. Supreme Court extended the Pickering principle to the following cases:

City of Madison v. Wisconsin Employment Relations Commission (1976): The Court upheld the teachers rights to speak out at a school board meeting about employment matters.

Nieto v. San Perlita ISD (1990): A school maintenance supervisor was discharged after he complained that the school’s basketball coach was abusing students. Nieto conducted his own investigation pulling students out of class for questioning. Teachers complained about disruptions. The court held that although Nieto’s speech was of public concern, the district’s interest in “promoting the public services it performs” outweighed the public interest.

Pickering principle

If an employee occupies a policy-making or confidential position then the Pickering principle is limited. The Pickering principle did not apply to the following cases:

Kinsey v. Salado ISD (1992): Nolan Kinsey, Superintendent of Salado ISD supported candidates that were replaced by new board members. This support affected his relationship with the newly elected board which eventually led to his removal. After a long battle the Pickering test was denied because of the close working relationship he had with the board.

Mt. Healthy City School District Board of Education v. Doyle (1977): A marginally qualified teacher on a probationary contract made comments critical of the school over a local radio station. As a result, he was terminated. The teacher had to prove that he was terminated because of retaliatory reasons. This was evident in a memo the superintendent wrote him listing the negative comments made as part of the decision for termination. After the burden was sustained the school district had the opportunity prove other reasons for termination. Since the district’s burden was sustained and substantiated the termination was upheld in 1982.

Mt. Healthy test

The legacy of Pickering is a balancing test. The three-step Mt. Healthy test was a later elaboration on the Pickering balance: 1) Is the speech protected? 2) Did it play a substantial part in the decision to terminate the employee? 3) If so, was it the deciding factor? The test was used in the following cases:

Johnson v. Longview ISD (1989) North Mississippi Communication, Inc. v. Jones (1996) Brantley v. Surles (1985)

School districts and public information

School districts are limited in their ability to file lawsuits against those who make critical comments about the district and its employees.

Port Arthur ISD v Klein & Associates Political Relation (2002): Port Arthur School District sued a political relations firm for defamation. The Texas appeals court rejected the claim by stating The Port Arthur district’s argument undermines the basic principle of free expression.

Peavy v. New Times, Inc. (1997): A Dallas newspaper was not held liable for violating the federal wiretapping statute when it published transcripts of a Dallas school board member’s racist and profane comments obtained by a third party through an illegal telephone wiretap. The newspaper prevailed because the elected official’s racist views appeared in public record and were matters of significant public concern.

Employment Reassignments

Although reassignments are within the discretion of school officials and is supported by contracts, they cannot be made in retaliation of an employees exercising their expression of rights. This stands true for contracted employees as well as at-will employees.

Reeves v. Clairborne County Board of Education (1987): Reeves was reassigned from being a Chapter 1 coordinator to director of reading after she had testified on behalf of several teaching assistants who were suing the district over their terminations. The appeals court agreed with the trial court that the reassignment was an unconstitutional retaliation for her previous trial testimony, a protected form of expression. The Mt. Healthy test was followed since their wasn’t any other reasons to support the reassignment.

Anderson v. Pasadena ISD (1999): A veteran administrator with an unblemished track record was reassigned because criticizing a bond election and speaking out against the reorganization of the district. The administrator wanted to argue that the interests of the district did not outweigh the exercise of his first Amendment rights and the courts agreed.

Expression within the school

Expression within the school has three important dimensions.

Expression outside the classroom but on the school grounds, Classroom academic freedom, and Retaliation for speaking out about suspected wrongdoing under

the Texas Whistleblower statute.

Expression outside the classroom but on school grounds

In the Givhan v. Western Line Consolidate School District (1979) the U.S. Supreme Court ruled that the First and Fourteenth Amendments to the U.S. Constitution can under certain circumstances protect private communication between a public-school teacher and a school principal.

Following the Givhan decision, the U. S. Supreme Court issued two important rulings pertaining to teacher expression within the work place; involving mailboxes and teacher complaints over working conditions.

Expression outside the classroom but on school grounds cont…

Perry Education Association v. Perry Local Educators’ Association (1983): School mailboxes are not automatically “public forums” available to teachers, their associations, and others to disseminate information. By contrast, the closed forum government property that is traditionally not a place for public communication.

Texas State Teachers Association v. Garland ISD (1985): Texas does not have a state law allowing schools to grant exclusive recognition rights to one organization rights to one organization. Since the campus is not a public forum, the school district could deny all employee organizations access during school hours yet allow other, unrelated groups, such a civic and charitable organizations, to meet with students and faculty during non-class school hours.

Expression within the school

Ysleta Federation of Teachers v. Ysleta ISD (): The Fifth Circuit ruled that a policy giving the superintendent complete discretion to review all material prior to its distribution between employees and their organizations was a violation of the First Amendment. Court rulings suggest that administrators must be sensitive to employee First Amendment rights when making decisions about school mailboxes, websites, and similar types of communication systems.

Perry test

Ysleta has a three part test for determining when particular speech by a public employee is protected:

The speech must have involved a matter of public concern. The public employee’s interest in commenting on matters of

public concern must outweigh the employer’s interest in promoting efficiency.

The employee’s speech must have motivated the decision to discharge the employee.

In-school employee speech

Hall v. Board of School Commissioners of Mobile County (1982): Prior-review policies involving teacher expression to have sufficient guidance through “clearly articulated prior-submission procedures and approval standards of viewing literature through the mail system to prohibit “the unbridled discretion that is proscribed by the Constitution.”Chiu v. Plano ISD (2003): Administrators in the Plano ISD organized a series of “math nights” a few years ago to inform parents about its new math curriculum. The Fifth Circuit ruled that the parents sought to speak on a matter of public concern, the district’s math curriculum, and that the prior-review request was unconstitutional for the same reasons expressed in the Ysleta and Hall decisions.

In-school employee speech cont.

Connick v. Myers (1983): This decision involved the issue concerning whether employee expression concerning on-the- job complaints is constitutionally protected and thus cannot be used in a negative employment decision. The U.S. Supreme Court reversed a lower courts decision by ruling that such expression is not protected. The court held that 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.

Connick’s case implications

Administrators must determine if the expression is protected by the First Amendment before recommending a negative employment decision on the basis of that expression. These implications are evident in the following cases:

Waters v. Churchill (1994) Bowen v. Channelview ISD (1983) McDaniel v. Vidor ISD

Grievances

Employees in Texas have a statutory right to present grievances to their employees under Chapter 617 of the Government Code. Also, school employees have a right to present a complaint to the school board under Article I Section 27 of the Texas Constitution.

Day v. South Park ISD Dorsett v. Board of Trustees for State Colleges and

Universities (1991) Association of Texas Professional Educators v. Ysleta ISD

(1983)

Academic Freedom

The following guidelines should be observed in relation to the teacher’s claim of academic freedom in the classroom:

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 do have a constitutional right in Texas by virtue of the Fifth 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 relevant to their subject matter, 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 better to check with board policy and administrative directives before proceeding.

Academic Freedom cont…

Court cases regarding academic freedom:

Epperson v. Arkansas (1968): Landmark decision which struck down an Arkansas statute forbidding the teaching of evolution in the public schools, because of its conflict with the constitutional mandate separating church and state.

Mercer v. State (1979): The U.S. Supreme Court affirmed a lower court ruling that a state has the right to prohibit discussion of birth control in its public schools.

Kingsville ISD v. Cooper (1971): A teacher conducted a controversial role- play while studying the post-Civil War era. Cooper was admonished not to discuss “blacks” in the classroom, and that nothing controversial should be discussed. Principal and superintendent recommended her for reemployment but board failed to issue her a contract. The court ruled that the proper test to determine if a teacher has abused the right is “not whether substantial disruption occurs but whether such disruption over balances the teacher’s usefulness as an instructor”.

Texas Whistleblower Act

A law passed in 1983 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 (Texas Government Code, Chapter 554).

Whistleblower Act cont…

The Whistleblower Act creates an exception to general immunity from damage suits for school districts:

District holds a heavy burden of responsibility if it upholds retaliatory action who reports in good faith an alleged violation of the law.

Texas Supreme Court 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.

The act protects a public employee from retaliation even if the report was erroneous and even if the employee had a malicious motive (Wichita County, Texas v. Williams, 1996).

Educator Freedom of Association

The First Amendment as applied to the states through the Fourteenth Amendment has been construed to guarantee the public-school teacher the freedom to associate.

Educator Freedom of Association cont.

Damages/decisions can result from denial of associational and expression rights. The following cases have demonstrated these denials:

TSTA v. San Antonio ISD (1983): The federal district court ruled in favor of SATC asserting that retaliation was the motivating factor for the board’s actions (privileges revoked). District was ordered to pay $21,135 in compensatory and punitive damages to SATC and its officers, plus attorney’s fees and court costs in the amount of $188,281. The district was also ordered to reinstate all the organizations privileges and recognize TSTA as the exclusive representative of its teachers, a decision at odds with Texas state law.

Valencia v. Ysleta ISD (1999): The commissioner ruled in favor of a teacher who was notified that, as president of the Ysleta Teachers Association, she was ineligible to run for the District Educational Improvement Council.

Educator Freedom of Association cont.

Texas statutory law also protects the right of association. School districts are precluded by state law from recognizing teacher unions as bargaining agents and from engaging in collective negotiation.

Texas Government Code Chapter 617 recognizes that “an individual may not be denied public employment because of the individual’s membership in a labor organization”.

TEC 21. 407 prohibits a school district from directly or indirectly requiring or coercing a teacher to join any group, club, committee, organization, or association or to refrain from participating in political affairs.

Student Rights of Expression

During mid 1960’s students had little rights in the public school site.

Students were under the authority of their parents at home.

Students were under the authority of teachers and administrators at school.

Student Rights of Expression

Loco parentis- is the relationship of school personnel to students that means “in place of parents.”

Student Rights of Expression

In 1960’s had a dramatic expansion of student constitutional rights.

In 1970’s federal courts began to accord greater deference to school districts decision making.

In 1980’s the expansion of student rights ended.

Reasons for student rights

Pressure of minorities for student protection Liberalism of the Warren Court Abuses of in loco parenitis authority in

schools Student radicalism generate by Vietnam War

Student Rights of Expression

Tinker v. Des Moines School District 1969-Three Iowa students were suspended for wearing black armbands to school.

Students wearing an armbands in school imply their resistance to the Vietnam War.

Armband Rule

This rule only applies to secondary schools– Schools administrators and teachers may ask for

them to remove it.– If students don’t remove the armband, the

principal has the power to suspend the student.

Consequences Can ask them to remove it If they fail to comply they can face: School suspension

Texas Court Cases

Blackwell v. Issaquena County Board of Education-30 students at Henry Weathers High School wore "freedom buttons" to school. The School Board prohibited students from using “freedom buttons.”

Olesen v. Board of Education-Student was suspended for wearing earrings.

Texas Court Cases

Chalifoux v. New Caney- Two students that attend New Caney High School in New Caney filed a law suit against the school district Students were prohibited to wear rosaries outside their clothing.

Phoenix Elementary School v. Green- School came up with a mandatory dress code for all students where no restrictions were towards speech but to dress code.

Bethel School District No. 403 v. Fraser

Bethel School District No. 403 v. Fraser -A senior student that attended Spanaway Washington expressed a speech nominating classmate another student for Vice President. The speech contained sexual innuendos, which triggered disciplinary action from the administration personnel.

Rutherford v. Cypress Fairbanks I.S.D- A senior Cy-Fair student wrote a will leaving a debt of $40,000 to the football coach for failure to secure college scholarships because of the team’s record.

School-Sponsored Student Publications

Hazelwood School District v. Kulmeier - public school officials can censor school sponsored student expressions as long as they have a valid educational reason for doing so (article describing school students' experiences with pregnancy and another article discussing the impact of divorce on students at the school).

School-Sponsored Student Publications

Texas Court Cases

Beussink v. Woodland R-IV School District- A junior woodland high school student created a web page of the Woodland High School staff without the principals consent and was available for public view. The web page contained inappropriate language and expressed his opinion towards staff.

Texas Court Cases

Virgil v. School Board of Colombia County, Florida -Parents of students at Columbia High sued the school board seeking some removal of book from a required course because it contained sexuality and vulgar language.

DeNooyer v. Livonia Public Schools- A second grade student at McKinley Elementary School was denied to show her classmates a videotape she had brought in for show and tell because it was related to religion.

Non-School Sponsored Student Publications

The rationale of this policy is to protect students’ rights to free speech in creation of official school publications and at the same time balancing the school district’s role in monitoring student publications.

Non-School Sponsored Student Publications

Dallas I.S.D. Case- students were prohibited from meeting outside of the school cafeteria to engage in prayer and reading the Bible.

School defense

Equal Access Act Students don’t have freedom of speech

rights to preach nor distribute religious materials in school.

Student will be violating the wall of separation between church and state.

Texas Court Cases

Clark v. Dallas I.S.D. Muller v. Jefferson Lighthouse School Rivera v. East Otero School District Slotterback v. Interboro School District Nelson v. Moline School District No. 40 Shanley v. Northeast I.S.D. Boucher v. School Board of Greenfield

Muller v. Jefferson Lighthouse School

A fourth grade student at Jefferson Lighthouse Elementary School was denied to distribute a religious invitation to his peers by his principal.

Texas schools adopt a prior-view policy with these components:

Criteria that spell out what is forbidden Procedures by which students submit

proposed materials to be reviewed. A brief period of time during which the principal

or other school official must make a decision. An appeal procedure. A reasonable time during which the appeal is

to be decided.

Texas Court Cases

Rivera v. East Otero School District -A female student at Colorado's East Otero School District distributed a newspaper that promoted Christianity principles.

Texas Court Cases

Nelson v. Moline School District No. 40 -A student published newspaper by the name of Issues and Answers was denied by administrators for distribution among peers during school hours and in school premises.

Shanley v. Northeast I.S.D. - A female student at Arthur High School was suspended for distributing an underground school paper called Awakening that was produced by students and distributed across a sidewalk from the school campus.

Texas Court Cases

Boucher v. School Board of Greenfield -A student published an article on The Last, an underground newspaper that displays anonymous articles such as “So You Want To Be a Hacker.” The newspaper was distributed on school grounds and during the day.

Student Freedom of Association

TEC 37.105 refuse to allow people having no business to enter school property

TEC 37.107 trespass on school property is a crime

TEC 37.121 members of fraternities or gangs in public schools

Texas Court Cases

Grayned v. Rockford- A group of students got together outside the school to protest with posters demanding equal rights.

Healy v. James- a public college avoided recognizing student activist groups for a SDS organization.

Texas Court Cases

Dixon v. Beresh - A student has sued the school authorities because they have refuse to recognize a student organization by the name of Mumford Committee to End Stress.

City of Dallas v. Stanglin- A dance hall was available for students ages 14-18 which intended to be a place for students to socialize, but with restricted admittance to people between the age listed above.

Reference:

Walsh, J, Kemerer, F & Maniotis, L. (2005). The Educator’s Guide to Texas School Law. (6th ed.) Austin,Texas, University

of Texas Press.

Questions?