First Amendment Case Pending Before U.S. Supreme Court May Affect Teachers’ Ability to Advocate for Students

It happens with some degree of frequency that a teacher or therapist reveals “inside” information to parents or their attorney that is damaging to the school district’s interests.  In fact, I had a case where the speech therapist working at the school, from the school cooperative, testified extensively as to how the school was not properly implementing services for the child.  She was subsequently called in and reprimanded, but she held her ground and the case settled without further repercussions for her.  The question is, in the event she had been fired or demoted in some way, would she have a 1st amendment claim for speaking out at a hearing and to the parents?

The case that deals with this question is Garcetti v. Ceballos, (No. 04-473) (read grant of cert in .pdf format), and it was argued before the U.S. Supreme Court on October 12, 2005.  In the Garcetti case, an Assistant State’s Attorney, Ceballos, wrote an internal memo claiming that a sheriff’s deputy had materially misrepresented facts in an affidavit used to obtain a search warrant.  Ceballos later provided the memo to the defense counsel and testified as a witness for the defense.  When he was later demoted and ill-treated by his supervisors, he filed a suit alleging violations of his 1st Amendment rights.

The case turns on the degree to which, if at all, a public employee can speak out about internal matters.  This case can cover matters such as whistle blowing, and it certainly could cover the speech therapist (discussed above) who also testified against the school for matters that she learned while on the job.

The leading case in this area of law arose when an Illinois teacher wrote a letter to the editor that was critical of the school board’s revenue proposals.  The case, Pickering v. Board of Education of School District #205, 391 U.S. 563 (1968),  set out a balancing test between the teacher’s interests in commenting on matters of public interest and the interests of the school district in maintaining efficiency of its employees through regulating their speech.  In Pickering, the Court ruled in favor of the teacher.

The most recent Supreme Court case to touch on this issue was Connick v. Myers, 461 U. S. 138 (1983).  The case involved another state’s attorney who was upset about her transfer and circulated a questionnaire within the office regarding the transfer policies of the office.  She was eventually fired and asserted a 1st Amendment claim that was rejected.  The Court ruled that she had no Constitutional protection regarding matters of a personal nature rather than a public concern.

The question in Garcetti is whether Ceballos’ speech and action fall within the protections outlined in Pickering (balancing test finding in favor of teacher’s first amendment freedom) or in Connick (no Constitutional protections extended to personal or internal matters).  The decision is expected in the summer of 2006.  Riding on this decision are the Constitutional protections a teacher can expect when he or she helps a parent or their attorney with inside information.  The possible repercussions and lack of protection for the teacher provide more reason to protect such revelations with the utmost confidence.

Comments

[Kathy Hybl]

What about teachers who have children with special needs attending the same school division where the teacher/parent works? I guess we will have a conflict of interest and teachers will not be able to work with the same district if this case goes against the teacher.

[Charles P. Fox]

Thanks for your comment. I think there is always a potential conflict when
your own child is in the same district as where you work. I have seen such conflicts both with professional and non-professional staff (head custodian). Legally, no matter which way the case comes down, you can and should explicitly distinguish your roles. I do not believe that the law can take away your IDEA rights as a parent simply because you are also a public employee. Very interesting dilemma though. Factually, a conflict exists no matter what.