Speech and E-Mail 1

Freedom of Speech and Email

Public School Employee Freedom of Speech and Email

Chris Telfer

Edgewood College
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Abstract

Since the Tinker v. Des Moines Supreme Court case, 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 using email. 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?
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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. However, it wasnt really confirmed for public school employees until in the

1969 Tinker v Des Moines [case] the Court ruled that neither teachers nor students lose their

constitutional rights to freedom of expression when they enter the public schools. Of course, the

fact that the Constitution now applies to schooling does not mean that teachers and students can

say or write anything they wish." (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 123.)
"Although the U.S. Supreme Court has recognized that both students and teachers retain free

speech rights in the school environment, those rights are not unrestricted. See, for example,

Morse v. Frederick, 127 S. Ct. 2618 (2007), the "Bong Hits for Jesus" case, where the U.S.

Supreme Court famously upheld the discipline of a student for unfurling a banner containing a

pro-drug message at a school-sponsored event, on the grounds that the banner violated a school

policy against the display of material advertising or promoting the use of illegal drugs. "

(Neuburger, J.D., 2008, p. 2.)"Students and teachers do not shed their constitutional rights to

freedom of speech or expression at the schoolhouse gate." (Roth, S. V., Bennett, B., 1997, p. 2.)

This was later further clarified in the Pickering v. Board of Education, 391 U.S. 563, 568 case

which gave a legal basis for balancing the rights of the individual against the rights of the

government as an employer. 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.) "-28-

The Supreme Court has held 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 (2006). Employees who make public statements outside the

course of performing their official duties retain some possibility of First Amendment protection
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because that is the kind of activity engaged in by citizens who do not work for the government.

Id. at 423. When a public employee speaks pursuant to employment responsibilities, however,

there is no relevant analogue to speech by citizens who are not government employees. Id. at

424. This holding is limited only to the expressions an employee makes pursuant to his or her

official responsibilities, not to statements or complaints . . . that are made outside the duties of

employment. Id. " (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. 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.) "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.) " 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.) "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, since this wasn't the case the court established that 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.)

With Pickering the balancing test was established which was

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XXXXXXXXXXXXXXXXXXXXXXX. With Connick the test was expanded to XXXXXXXX

and with Garcetti XXXXXXXXXX.

Examples over the last several years many of which are highlighted in Teachers and the

Law highlight some restrictions on this speech but at the same time show some inconsistencies

with the courts. "Pickering v. Board of Education, 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 that "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., Schimmel, D., Stellman, L.R., 2007, p. 125.)

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

Referencing an Alaska case where two teachers were dismissed, unlike PIckering's 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.)
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"Can Teachers Be Disciplined for Publicly Criticizing Their Immediate Superiors?

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, damagin, 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?

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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
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refused to follow."" (Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 129.)

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

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.)

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

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.,

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

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

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.)

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

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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 cricitcal 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
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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.,

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

"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. Inexcapably, 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."
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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 governmnet 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,
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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 reassignmnet due to her choice of plays for a statewide competition

was uphel in Boring v. Buncombe County Board of Education, 136 F.3d 364 (4th Cir. 1998),

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

The controversial play dealt with a signle-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 developmnet 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 classwork 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
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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 lsit 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 nontenured 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.)
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"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 tha th interracial

couples should be 'fixed' so they don't have children." (Fischer, L., Schimmel, D., Stellman, L.R.,
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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.""

(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?

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
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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
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must be permitted to establish the curriculum in a way that does not offend community values."

(Fischer, L., Schimmel, D., Stellman, L.R., 2007, p. 142.)

"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.)

"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:" (Neuburger, J.D., 2008, p. 2.)

"IT'S NOT THE FIRST, AND IT WON'T BE THE LAST

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
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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.,

Schimmel, D., Stellman, L.R., 2007, p. 136.)

"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
 Speech and E-Mail 20

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)

 Speech and E-Mail 21

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 teaacher must be balanced against the interests of

the state as empoloyer 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 empoloyee's 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; and (7) 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:

 Speech and E-Mail 22

"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.)

Purpose Statement

"The introduction to an AUP should have a purpose statement that explains that the
district's computer facilities, equipment, software, and services, including, use of the Internet and

e-mail service, are all part of a computer system that is owned by the school district for a specific

and limited purpose. The district's computer system is, first and foremost, to be used by students

and employees for the purpose of supporting the educational mission of the district." (Lathrop &

Clark, LLP, 2008, p. 1.)

"Limiting the use of the computer system to the educational mission of the school is

advisable in order to reduce inappropriate use of the system. For instance, a school board may

decide to prohibit the use of the district's computer system, including a district-maintained Web

site, for personal economic benefit or commercial gain (e.g. it would prohibit users from selling

services or products using the district's computer system)." (Lathrop & Clark, LLP, 2008, p. 2.)

"The purpose statement should clearly assert that use of the district's computer system is

a privilege and not a right, such that the district reserves the right to hold users accountable for

misuse of the computer system in violation of the rules identified in the policy, including taking

disciplinary action or revoking a user's privilege to use the system." (Lathrop & Clark, LLP,

2008, p. 2.)

"The introduction should also state that individuals using the system must have approval

from school officials to use the system., and that the user shall not have any expectation of

privacy when using the district's system." (Lathrop & Clark, LLP, 2008, p. 2.)

"Additionally, Wisconsin law requires a school district, as an authority responsible for

 Speech and E-Mail 23

public records under the public records law, to develop rules of conduct for its employees who

are involved in collecting, maintaining, using, providing access to, sharing or archiving

personally identifiable information." (Lathrop & Clark, LLP, 2008, p. 2.)

"...an AUP could be designed to, at least in part, satisfy the statutory obligation to

develop rules of conduct for employees who are engaged in the activities covered under this

statutory requirement." (Lathrop & Clark, LLP, 2008, p. 3.)

"IF all employees are not provided access to the district's computer system, then the

employees who will be given access should be identified, first, by job classification or other
categorical system (e.g. administrators and teachers)." (Lathrop & Clark, LLP, 2008, p. 3.)

"All users should be directed to limit their use and access to the district's computer

system to themselves, and informed that they are prohibited from providing any access to others

with the use of their identification and password. The policy should identify the consequences,

which may include criminal penalties, when a user provides another user, authorized or not, and

identification and password issued for his or her individual use." (Lathrop & Clark, LLP, 2008,

p. 3.)

"Privacy Rights

The AUP should have a clean, unambiguous statement that use the district's computer

system, including use of the Internet and e-mail service, is not private in anture but is subject to

oversight by district officials." (Lathrop & Clark, LLP, 2008, p. 3.)

"Privacy Rights

IF school officials want to reserve the right to monitor the usage of the district's computer

system, the district must provide clear notice to all users that ttheir use of the district's computer

resources is not private -- that is, that school officials reserve the right to monitor every user's use

of the district's computer system at all items and without notice, which includes its equipment

and services. Users must be put on notice that the district's limited purpose computer system is to

be distinguished from a general personal account." (Lathrop & Clark, LLP, 2008, p. 3.)

"Privacy Rights
 Speech and E-Mail 24

The AUP should state that school 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.)

"Privacy Rights

If a school board decided to permit some personal use of its computer system by certain
categories of users, ti could still inform users that eh district intends to conduct regular audits of

the use of its computer system that may result in searches of the personal messages, or that a

student or public records request might require school officials to review messages stored on the

system in order to respond to a request for documents. Therefore, users should be cautioned that

they have no privacy rights to the content of the messages. Alternatively, a school board could

permit the use of the e-mail service for personal messages and inform users that the district will

not view e-mail messages unless it is for an investigatory purpose, such as an investigation of

alleged misuse or a violation of the rules, or alleged violations of law." (Lathrop & Clark, LLP,

2008, p. 4.)

"A school district that maintains an Internet site..may not collect personally identifiable

information without the consent of that person." (Lathrop & Clark, LLP, 2008, p. 4.)

"Prohibitions Against Discrimination, Harassment and Defamation

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)." (Lathrop

& Clark, LLP, 2008, p. 4.)

"Prohibitions Against Discrimination, Harassment and Defamation

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,
 Speech and E-Mail 25

LLP, 2008, p. 4.)

"Furthermore, the court wrote, "when 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.)

"...AUP can provide a basis for regulating students' use of computer technology and

allow for disciplinary action against a student whose conduct related to Internet usage violates

the classroom conduct policy." (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." (Lathrop

& Clark, LLP, 2008, p. 6.)

"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,
 Speech and E-Mail 26

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
 Speech and E-Mail 27

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? XXXXXXXXXXXXXX If Pikcering

wrote it from his home computer using his own email account would it make a difference?

XXXXXXXXXXXXX What if Pickering was at home but used the school email account?

XXXXXXXXXXXXXXXX

Lets look at Garcetti. Same questions XXXXXXXXXXXXXXX

A scenario, a well respected 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
 Speech and E-Mail 28

the bargaining unit for the local union. What do you do?

In summary, here are the key components to have in your AUP. XXXXXXXX Here are

the key questions to ask yourself if people are violating the AUP and or meeting the standards of

freedom of speech. XZxXXXXXX

"THE BOTTOM LINE

Both the Spanierman and Snyder cases are a subset of a larger category of disputes that

involve posting in online forums, blogs and social networking sites. Regardless of the rights

implicated, these cases remind us to be mindful of the ramifications that may flow from online
personal expression that is readily accessible to students, co-workers, and employers. "

(Neuburger, J.D., 2008, p. 3.)

 Speech and E-Mail 29

References