The document discusses expression and associational rights protected under the First Amendment and in the Texas Constitution. It covers the freedoms of speech, press, and assembly. It defines these rights and notes they apply to public schools through the 14th Amendment. While private schools are not bound by these, they may have similar policies. The document outlines cases like Pickering and Mt. Healthy that established tests for when a public employee's speech is protected from retaliation. It also discusses expression rights for teachers both inside and outside the classroom.

1. Chapter 6: Expression &
Associational Rights
William Allan Kritsonis, PhD

2. Rights of Expression
1. Freedom of Speech
2. Freedom of Press
3. 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)

3. Rights of Expression Defined
1. 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:the
individual 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.

4. The First Amendment Reads:
• “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.

5. 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.”

6. Cont’d
• 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…

7. Remedies
• 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

8. 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.

9. 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.

10. 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.

11. Pickering v. Board of Education cont’d
• 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.

12. 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.

13. 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.

14. 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

15. 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.

16. Expression Outside the Classroom But
on School Grounds con’t.
• Connick v. Myers is a 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.

17. 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

18. 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.

19. Retaliation for Speaking Out About
Wrongdoing