Chapter 6: Expression & Associational Rights William Allan Kritsonis, PhD
Rights of Expression Freedom of Speech Freedom of Press Freedom of Assembly and Association (All 3 of these are key provision of the 1st Amendment in the Bill of Rights of the US Constitution)
Rights of Expression Defined Freedom of Speech: the freedom to speak freely without censorship or limitation. 2. Freedom of the Press: consists of constitutional or statutory protections pertaining to the media and published materials. 3. Freedom of Assembly & Association:theindividual right to come together with other individuals and collectively express, promote, pursue and defend common interests. Freedom of association is recognized as a human right, a political freedom and a civil liberty.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, Government for a redress of grievances.”
*By virtue of the 14th Amendment, the provisions of the 1st Amendment apply to public school districts.
The Counterpart to the 1st Amendment in the Texas Constitution is Article I, §8 “Every person shall be at liberty to speak, write, publish his opinions on any subject, being responsible for the abuse of the privilege; and no law shall ever be passed curtailing the liberty of speech or of the press.”
In 1992, the Texas Supreme Court noted that in some respects Article I, §8 affords greater protection to free speech that the First Amendment
1995, the drafters US Court of Appeals for the Fifth Circuit noted that the drafters of the Texas Constitution rejected the language of the First Amendment, preferring instead a broader support for free speech…
Thus, a claim under Article I, § 8 is not the equivalent of a claim under the First Amendment…
The remedies available under the state provisions are less extensive than those under the First Amendment.
The Texas Supreme Court ruled in 1995 that, unlike federal law and the First Amendment, state law does not allow damages for violation of free speech and assembly rights under Article I of the Texas Constitution. Remedies are limited to declaratory and injunctive relief and to such actions as reinstatement and back pay
Expression Rights in Private Schools Private school employees, nor students, cannot assert a cause of action under either the federal or state constitutions in their schools. The extent to which expression rights are protected in that setting depends upon the policies of the institution with which such schools are affiliated.
Educator Rights of Expression Outside of School Public school teachers and administrators have the same civil rights outside school as any other citizen BUT it is also true that an educator’s job may be in jeopardy if the exercise of a right undermines job effectiveness.
Pickering v. Board of Education (U.S. Supreme Court, 1968) This case involved a teacher who was dismissed from his job for sending a letter critical of the school board to the local newspaper. The school board and the lower courts concluded that the letter included some false statements and was detrimental to the interest of the school system and the interests of school should take precedence over the teacher’s claim to freedom of speech.
BUT the U.S. Supreme Court ruled unanimously that the school board was wrong in firing the teacher.
Justice Thurgood Marshall wanted to balance the teacher’s rights of expression on public issues outside school with the legitimate interests of the school board in assuring an efficient and orderly learning environment in school…
Since the statements in the letter were not aimed at any person with whom the teacher would come directly in contact with while carrying on his daily duties, and the falsehoods were not carelessly made, nor did they impede school operations, Judge Marshall and the Supreme Court decided the teacher should not have been dismissed.
Mt. Healthy City School District Board of Education v. Doyle
In 1977, a marginally qualified teacher on a probationary contract made negative comments critical of the school’s faculty dress code policy on a phone in conversation with a radio station. His contract was not renewed.
He doesn’t have to have notice or hearing but he requested a list of reasons . The Superintendent then mailed him a memo with the radio incident listed as one of the reasons for his nonrenewal. Doyle then sued, claiming retaliation for free speech.
Both the federal trial and appellate courts supported his claim under Pickering but the US Supreme Court did not.
The Supreme Court argued that based on other negative “legally permissable” items listed and thoroughly documented on evaluations of Doyle’s performance that the district was upheld and not in error in their decision to terminate his contract.
Mt. Healthy Test
Employee MUST Check and Meet 3 Principles:
1. Must show that the speech is constitutionally protected! (Pretty easy if it relates to a matter of public concern) 2. Must show that the exercise of free speech was directly related to the negative employment decision. 3. Must realized that even though 1 & 2 may be met, that if the governing board has documentation of other job related deficiencies not pertaining to the action of free speech, they may still prevail.
Expression Within The School 3 Dimensions: -Expression outside the classroom but on the school grounds -Classroom Academic Freedom -Retaliation for speaking out about suspected Wrongdoing under the Texas Whistle Blower Statute
Expression Outside the Classroom But on School Grounds Administrators must be sensitive to employees First Amendment rights when making decisions about school mailboxes, web sites, and similar types of communication In 1983, Perry Education Association v. Perry Local Educator’s Association, it was ruled that school mailboxes are not automatically “public forums” available to teacher, their associations, and others to disseminate information. The Supreme Court viewed the school mailboxes as a closed forum under the school’s control and reserved for its use so long as officials are not suppressing expression because they disagree with the message.
Expression Outside the Classroom But on School Grounds con’t.
Connick v. Myers isa case involving a woman who got fired after sending a questionnaire to her fellow employees concerning internal employment matters, after a negative run in with her superior concerning a job transfer.
The court drew a distinction between expression involving public interest and expression involving working conditions
So, the court ruled that such expression (expression concerning on-the-job complaints) is NOT protected under the Constitution and thus CAN serve as grounds for dismissal.
Examples of Expression NOT Protected by the Constitution If a teacher refers to herself as “A PERFECT 10” and to the other teachers as “WITCHES” If a teacher speaks out against her principal in a crowded school cafeteria over her evaluation results
Classroom Academic Freedom 4 Guidelines: 1. Teachers shouldn’t use the freedom of expression rights within the school in such a way that will hinder their ability to work with school administrators and colleagues 2. Before teachers make determinations about what they can and cannot do in their classrooms, they should have a good understanding of the school policy with respect to curriculum practices and the role of the teacher 3. Teachers should make sure that all classroom discussions are pertaining to their subject matter, is balanced and has not undermined their effectiveness 4. Teachers should be cautious selecting materials, while teaching methodology, and also when awarding grades.