This document summarizes several important court cases related to freedom of expression for teachers and other public employees: - Pickering v. Board of Education established that teachers have a right to freedom of expression as citizens and schools must provide documentation to justify adverse employment actions against teachers for their speech. - Tinker v. Des Moines upheld students' right to free speech through armbands protesting the Vietnam War as long as it did not disrupt school operations. - The Texas Whistleblower Act prohibits retaliation against public employees for reporting illegal activities and provides legal recourse if they face penalties for whistleblowing.

1. Chapter 6
PEDG 5344
William Allan Kritsonis, PhD

2. Pickering v. Board of Education
Pickering, a teacher, was dismissed for writing and publishing in a
newspaper a letter criticizing the Board’s allocation of school
funds between educational and athletic programs and the
Board’s and superintendent’s methods of informing, or
preventing the informing of, the school district’s taxpayers of
the real reasons why additional tax revenues were being
sought for the schools. The Board, as well as the lower courts,
found that the letter, which contained false statements, was
detrimental to the interests of the school system and that the
interest of the school should take precedence over the
teacher’s claim to freedom of expression.

3. Pickering v. Board of Education
The US Supreme Court ruled unanimously that the
school bard was wrong in firing the teacher. Since
the statements in the letter were not aimed at any
person with whom the teacher would come in
contact in carrying out his duties, and the
falsehoods were not carelessly made nor did they
impede school operations, the Supreme Court
concluded that the teacher should not have been
dismissed.

4. Pickering v. Board of Education
 Pickering is an important case because it recognizes that
educators, and by implication, all public employees do have a
right to freedom of expression as citizens in the community.
 It also conveys to administrators the burden of documentation
they must shoulder to take adverse action against an employee
who they believe has abused the right.
 If it can be shown that the statements are made recklessly or
with knowledge of their falsity, that school functioning or the
teacher’s performance is impaired, or that the superior-
subordinate relationship is undermined, then sanctions, including
dismissal, might appropriately be brought against the employee.
 **Pickering recognized that educators have a substantial right to
freedom of expression as citizens of the community and conveys
to administrators the burden of documentation in order to take
adverse action against the employee.

5. Nieto v. San Perlita ISD
In 1990, Frank Nieto, a school maintenance
supervisor, was discharged after he complained
that the school’s basketball coach was abusing
students. Nieto had conducted his own
investigation, which included puling students out of
class for questioning. Teachers complained that
his actions were highly disruptive.
The court held that Nieto’s speech was of public
concern, but the public interest was outweighed by
the district’s interest in “promoting the public
services it performs.”

6. Tinker v. Des Moines School District
Students wore armbands in opposition of the Vietnam war and were
suspended; their parents sued citing infringement of their
children’s right to free speech.
The US Supreme Court agreed with the students noting that “school
officials do not possess absolute authority over their students.”
The court did not adopt an “anything goes” viewpoint; it was
emphasized that student expression in or out of class that
“materially disrupts classwork or involves substantial disorder
or invasion of the rights of other is, of course not immunized by
the constitutional guarantee of freedom of speech”. Since the
wearing of the armbands generated no significant disturbance
within the school, the court decided for the students.

7. Alaniz v. San Isidro
The 5th Circuit upheld a lower court ruling in favor of
the school district’s deputy tax assessor-collector,
who was fired after an opposition political party
won control of the board. Alaniz had actively
supported the policies and candidates of the
incumbent party, headed by her brother-in-law.
She maintained she would not have been fired but
for her 1st amendment-protected political activities.
The trial court awarded Alaniz $51,000 in back pay
and $40,000 in compensatory damages for mental
anguish and emotional distress and ordered her
reinstated to her position.

8. Whalen V. Rocksprings ISD
A 7th grade science teacher who became involved in an extended
question-and-answer session with her class that encompassed
matters related to sex education. In the course of responding
to questions about AIDS, contraceptives, and the development
of sperm, the teacher engaged in what school officials
considered unnecessarily graphic description harmful to the
emotional well-being of students of that age and grade level in
the largely rural community. For example, with regard to
learning more about sperm, the teacher advised male students
in her class to go home, lock the bathroom door, and
masturbate. The teacher was dismissed mid-year following a
due process hearing, a dismissal the commissioner of
education upheld.

9. Whalen V. Rocksprings ISD
The commissioner stated that for a teacher to show
that his or her comments were protected by
academic freedom, the teacher has to show that
the comments were reasonable relevant to the
subject matter of the class, had a demonstrated
educational purpose, and were not proscribed by a
school regulation.
**While teacher discussion rights in the classroom—as
contrasted with the right to control teaching
methodology—are protected under the weight of
judicial authority, they can be abused and lose
their protection.

10. Expression Within the School
 There are three dimensions:
 (1) expression outside the classroom but on the
school grounds
 (2) classroom academic freedom
 (3) retaliation for speaking out about suspected
wrongdoing under the Texas Whistle Blower
Statute

11. Expression Within the School
 In 1979, the US Supreme court ruled that the 1st
and 14th amendments can, under certain
circumstances, protect private communication
between a public-school teacher and a school
principal.
 At the same time, the court stated that since
subordinate-superior relations are particularly
sensitive, the content of what is said, as well as the
time, place, and manner in which it is said, can be
taken into account in deciding what is and is not
constitutionally protected.

12. Expression Within the School
 In 1983 (Perry Education Assn v. Perry Local
Educator Assn) the Court decided that school
mailboxes are not automatically “public
forums” available to teachers, the
associations, and others to disseminate
information.

13. Expression Within the School
 Administrators must be sensitive to employee
1st amendment rights when making decisions
about school mailboxes, Web sites, and
similar types of communication systems.

14. Expression Within the School
 Connick v. Myers (1983)
 an assistant DA was fired for distributing questionnaires
that dealt with internal working conditions; the question
involved the issue of whether employee expression
concerning on-the-job complaints is constitutionally
protected and thus cannot be used in a negative
employment decision.
 The Court ruled that such expression is not
protected and thus can serve as grounds for
dismissal. In terms of school, an administrator must
determine whether the expression is protected by
the 1st amendment—if the expression does not deal
with community interests, then in general it is not
protected.

15. Expression Within the School
 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. Expression Within the School
 In 1995, the 5th circuit identified a 3-part test
for determining when particular speech by a
public employee is protected:
 (1) the speech must have involved a matter of
public concern
 (2) the public employee’s interest in commenting
on matters of public concern must outweigh the
employer’s interest in promoting efficiency
 (3) the employee’s speech must have motivated
the decision to discharge the employee

17. Texas Whistleblower Act
 In 1983, the legislature passed a law known as “The Whistleblower Act”
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.
 Each governmental body is required to post a sign in a prominent place
informing employees of their rights under this act. A violation of school
policy is not within this definition (Lane v. Galveston ISD).
 An employee or appointed officer who is fired or otherwise penalized for
reporting may sue for injunctive relief, money damages, court costs and
attorney’s fees (a cap on the amount is set).
 The Texas Attorney General has advised that a school district that
prevails in a whistle-blower lawsuit is under no obligation to pay the
non-prevailing employee’s legal fees.
 The employee has the burden of proving that the adverse personnel action
was in retaliation for reporting a violation of the law, through the law
presumes this to be the case if the termination occurs within ninety days of
making a report.
 The governmental entity is not liable if it can show that it would have
made the same negative employment decision in the absence of the
employee’s reporting.

18. Texas Whistleblower Act
 In Castleberry ISD v. Doe, the court made clear that the 90 day
timeline stops while the grievance is being processed.
 School districts can bear a heavy burden of responsibility if
they uphold retaliatory action against an employee who reports
in good faith an alleged violation of the law.
 The Texas Supreme Court has 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.
 **Example of test question: Mr. Smith brought into class an
unapproved book. Mrs. Farmer disapproved of the book and
turned in the teacher. What could be the outcome? According
to the Texas Whistleblower Act…

19. Academic Freedom
 Involves four sometimes clashing interests:
 (1) interests of the state and local school board in
seeing that the curriculum reflects the collective
will of the community
 (2) the interest of the student in having access to
knowledge and ideas
 (3) the interest of the teacher as a professional in
controlling class discussions & choosing
instructional methodologies
 (4) the interest of parents in controlling their
children’s education.

20. Academic Freedom
 Epperson v. Arkansas- Supreme Court struck down
an Arkansas statute forbidding the teaching of
evolution in public schools
 The 5th Circuit court of appeals has ruled that public-school
teachers do have a 1st and 14th amendment liberty right to
engage in classroom discussion.
 Profanity in the classroom has no constitutional protection.
The use of profanity in a college classroom to “motivate”
students is not related to any matter of public concern and
is not protected by the 1st amendment.
 The 5th Circuit ruled that academic freedom does
not include the right to award a grade
 (Hillis v. SFASU)

21. Academic Freedom
 Given the tenuous nature of the teacher’s claim to classroom
academic freedom, the following guidelines should be observed:
 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 to have a constitutional right in Texas by virtue of the
5th 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 germane
to their subject-matter area, 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 best to check with board policy and administrative directives
before proceeding.

22. Shelton v. Tucker (1960)
US Supreme Court struck down an Arkansas statute
requiring teachers to file affidavits listing their
membership in organizations for the previous 5
years.

23. Ch 617 of the TX government code
recognizes that “An individual may not be denied
public employment because of the individual’s
membership or non-membership in a labor
organization.

24. TEC 21.407
prohibits a school district from directly or indirectly
requiring or coercing a teacher to join a group or
to refrain from participating in political affairs.

25. TEC 21.408
provides professional employees have a right to join
or not to join any professional organization or
association.

26. Hazelwood School District v. Kuhlmeier (1988)-
 Concerning school sponsored student publications
The Supreme Court ruled that school administrators have broad
censorship powers over student newspapers produced under the
auspices of the school as long as their actions are based on
“legitimate pedagogical concerns” and as long as the school has
not by policy or practice converted the school-sponsored student
newspaper into a public forum where controversial views can be
freely expressed.
 When students create messages on their own outside of school
hours without using school equipment, they normally are beyond
the purview of the school.
 When classroom expression involves threats, students are less
likely to find their speech constitutionally protected.

27. Clark v. Dallas ISD
 Concerning non-school sponsored
publications
Students wanted to meet outside the cafeteria
to pray, read the bible, and distribute religious
materials to students as they exited school
buses. The school rejected the plan based on
3 premises but a federal district court rejected
all 3 premises based on Tinker.

28. Clark v. Dallas ISD
 Most TX schools have adopted a prior review policy with 5
components:(1) criteria that spell out what is forbidden
 (2) procedures by which students submit proposed materials to be
reviewed
 (3) a brief period of time during which the principal or other school
official must make a decision
 (4) an appeal procedure(5) a reasonable time during which the
appeal is to be decided.
 These prior review systems must be carefully worded and applied
to withstand constitutional scrutiny. School officials also have the
right to determine the time, place, and manner of distribution of
non-school sponsored materials (Shanley v. Northeast ISD).
 These prior review systems must be carefully worded and applied
to withstand constitutional scrutiny. School officials also have the
right to determine the time, place, and manner of distribution of
non-school sponsored materials (Shanley v. Northeast ISD).

29. Concerning Student Freedom of
Association
High school students have a right to assemble
peacefully for expressive purposes in the vicinity
of the public school, and students at the collegiate
level have a relatively unfettered right to assemble
and to associate

30. TEC 37.105
Students at the secondary level also have a
right to come together for expressive
purposes on the public school campus as
long as no material disruption or invasion of
the rights of others occurs; the right of
association does not automatically extend to
non-students.

31. Does the right to associate restrict school
officials in deciding which student groups
may or may not function as school-
recognized organizations?
It depends on the type of group and the
legitimacy of the school’s reasons in denying
status as a campus organization to a student
group.

32. TEC 37.121
It is a crime for students or non-students to be
a member of or pledge membership to
fraternities, sororities, etc in public
elementary or secondary schools

33. Can a school district refuse to recognize a
controversial student organization, such as
a gay student rights club, if the students
obtain a faculty sponsor and meet other
criteria for school recognition?
In 2002, a federal court dismissed a case
(Caudillo v. Lubbock ISD) when students were
not allowed by the school board to begin an
organization called GAP Youth (Gay and
Proud Youth Group).