Recent Decisions Involving the First Amendment

Recent Decisions Involving the First Amendment

Brooks, Michael


Turlock Joint Elementary School Dist. v. Public Employment Relations Bd.

Docket No. F041187 (Court of Appeal of the State of California, 5th District)

In May 2000, negotiations between Turlock (CA) Teachers Association (TTA) and the Turlock Joint Elementary School District failed. As part of a strategic plan devised by TTA, teachers engaged in a letterwriting campaign, began distributing informational fliers, picketed, attended school board meetings, called parents, and held teacher rallies; TTA also encouraged its members to wear buttons at all times in support of their cause.

Pursuant to a long-standing policy prohibiting employees from engaging in political activities at work, the superintendent of schools ordered teachers to cease wearing the union buttons during instruction time. The teachers complied with the order, but in November TTA filed an unfair practice charge against the district. TTA won initially, but lost on appeal to the California Court of Appeal for the 5th Appellate District. The court held that the teachers could be prohibited pursuant to state law from participating in “political activity” in class.

The court noted that “the Supreme Court has consistently recognized the substantial influence and power instructors have over elementary and secondary age students in their classrooms” and that “students in such institutions are impressionable and dieir attendance is involuntary” (internal quotations omitted). Thus, restricting the political expression of school employees engaged in curricular activities is within the schools power. However, such a ban on political advocacy cannot be enforced outside of the instructional setting.

This case represents the unique analysis applied to teachers who express political speech in the instructional setting. Generally, political speech warrants a high degree of scrutiny when reviewed by courts. However, in the classroom, where teachers have a truly captive audience, political speech may more easily be limited. From this case, principals can learn that teachers normally have the right to exercise political speech outside of the instructional setting, but that schools may, and perhaps should, prevent teachers from using the classroom to promote political causes.


Herts v. Smith

Docket No. 02-3594EA (U.S. Court of Appeals, 8th Circuit)

After being denied renewal of her employment contract, the director of equity for Pulaski County Special School District in Little Rock (AR), sued the superintendent of schools for violating her First Amendment right to free speech. The director claimed that her employment was terminated as a result of her testimony in a hearing in a desegregation case involving the district. Under subpoena, the director was questioned about the “proposed combination of the Desegregation Office and the Pupil Personnel Office, and the impact this change would have on her position as Director of Equity.” She was also asked to analyze administration activity. The director testified that “her truthful responses might place her job in jeopardy.” She claims that her testimony did indeed lead to her termination.

At issue was whether her testimony was a matter of public concern. The First Amendment generally protects public officials from retribution by the state for speech that concerns matters of public concern and does not substantially interfere with the efficient public service of state employees. In this case, the district claimed that the director’s testimony was of private concern-her employment status. However, the court strongly disagreed. Holding that her speech was “certainly on a matter of public concern,” the court concluded that if the testimony was the cause of her termination, then her First Amendment right to free speech had been violated. The court explained that the issue of segregation was of public concern, and considering her position as director of equity and the nature of the questions she was asked, it would have been “unusual” for her not to discuss the “obligations and problems associated with her job.” Finally, the court concluded that the public concern outweighed any interference with public service caused by the directors speech.

This case illustrates the balancing test that courts use when determining whether school officials’ public speech is protected. First, the speech must be of public concern. Then, that concern must be weighed against the harm or interference caused by the speech. Generally, government employees may speak freely about matters of public concern outside of the classroom, but their political expression may be limited in the instructional setting or where their expression is a substantial and unwarranted interference with public service. School employees should be careful, however, because insubordination and publicly embarrassing their employers can substantially interfere with public service and will normally not fall under the protection of the First Amendment.


Scott v. School Bd. of Alachua County

Docket Mo. 02-14931 (U.S. Court of Appeals, 11th Circuit)

Two students were suspended from their Gainesville (FL) school for continuing to display the Confederate flag on school grounds after being told not to do so by their high school principal. By suspending the students-one for wearing a T-shirt displaying the flag and the other for flying the flag from the antenna of his truck in the school parking lot-the principal was enforcing an unwritten policy against displaying the Confederate flag at school. The justification provided by the principal for his policy was that the flag had created an unhealthy environment and could lead to a dangerous environment at school.

The students sued, claiming that the principal’s policy was in violation of the First Amendment. A federal district court dismissed the case, holding that the principal’s policy was constitutional. The students appealed to the 11 th Circuit Court of Appeals, which affirmed the lower court, concluding that “while students’ First Amendment rights are not forfeited at the school door, those rights should not interfere with” the healthy and safe administration of the school.

This decision continues a line of cases that paint an unclear picture of the constitutional validity of school bans on the Confederate flag. The students in this case appealed to the U.S. Supreme Court’s holding in Tinker v. Des Moines (393 U.S. 503 [1969]), which required a showing by the school of a “material and substantial disruption.” In Tinker, the Court concluded that students retain their right to free expression to the extent that it does not materially and substantially disrupt the educational environment. Under Tinker, courts have generally required school officials to prove that such a disruption or the likelihood of such a disruption exists.

In this case, the court yielded to the professional judgment of the principal. The court explained that “short of a constitutional violation based on a school administrator’s unsubstantiated infringement on a students speech or other expressions, this Court will not interfere with the administration of a school.” Quoting the district court’s opinion, the circuit court held that under Bethel School District v. Fraser (478 U.S. 675 [1986]), “school officials are charged with the duty to ‘inculcate the habits and manners of civility as values conducive both to happiness and to the practice of self-government'” and “to do so, they must have the flexibility to control the tenor and contours of student speech within school walls or on school property, even if such speech does not result in a reasonable fear of immediate disruption,”

Although this decision is only the law in states served by the 11 th Circuit (i.e., Alabama, Florida, and Georgia), it is representative of a tendency of courts to cede power to educators by giving deference to the professional judgment of school officials. Principals considering implementing bans of racially charged or otherwise controversial material may take comfort in this holding but should be cautious as they proceed, recognizing that students’ constitutional rights should not be infringed upon unless their exercise of such rights substantially affects the health of the school environment; although this case favored the ban, courts have differed in their approach to this issue.

Michael Brooks ( is the law clerk for NASSP and a former teacher of ninth-grade American Government.

Copyright National Association of Secondary School Principals Jan 2004

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