Lecture Notes William Allan Kritsonis, PhD - Expression and Associational Rights

1. Expression and Associational
Rights
William Allan Kritsonis, PhD

2. 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.

3. Expression outside the school
The extent of a teacher’s First Amendment freedoms depends largely upon the
content of the expression as well as the context in which the teacher chooses to exercise
those freedoms. The Supreme Court has spoken clearly in defense of the First
Amendment 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 raise
revenue for schools. The Supreme Court held that “a teacher’s exercise of his right to
speak on issues of public importance may not furnish the basis for his dismissal from
public employment.” The Court reasoned that because the letter concerned “a matter of
public interest” and there was no evidence that it interfered with (1) his or her ability to
perform classroom duties or (2) the regular operation of the school, the teacher’s rights
were no different than those of any other member of the general public. Thus, the teacher
could not be dismissed for the exercise of his freedom of speech.

4. 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.

5. 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.

6. 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)

7. 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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

17. 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)

18. 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.

19. 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”.

20. 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).

21. 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).

22. 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.

23. 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.

24. 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.

25. 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.

26. Student Rights of Expression
 Loco parentis- is the relationship of school
personnel to students that means “in place of
parents.”

27. 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.

28. 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

29. 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.

30. 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

31. 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.

32. 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.

33. 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.

34. 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).

35. School-Sponsored Student
Publications

36. 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.

37. 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.

38. 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.

39. 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.

40. 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.

41. 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

42. 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.

43. 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.

44. 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.

45. 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.

46. 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.

47. 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

48. 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.

49. 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.

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

51. Questions?