The law of public employment has come a long way since 1892. That's when Oliver Wendell Holmes made his infamous statement, "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." (1) Back then, public employment was seen as a privilege, not a right. Today, it's clear that a public employee does not shed his constitutional rights at the workplace door.
While public employees have more rights than they did in the 19th century, their legal protections have been decreasing in the past two decades. Public employees' constitutional rights reached a peak during the 1960s and 1970s. Since then, the Supreme Court has been diluting their rights.
Some of the most significant court decisions shaping the employment environment for public school teachers have come in the areas of freedom of expression, procedural due process, and search and seizure.
FREEDOM OF EXPRESSION
The landmark case in terms of setting constitutional standards for teacher employment came in 1968 in Pickering v. Board of Education, in which the Supreme Court ruled 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." (2) In Pickering, the Court ruled that a public employer had to show a "compelling state interest" before firing a teacher for speaking about matters of public concern. In such a case, the court must balance the rights of the employee against the public employer's right to run an efficient workplace. Pickering represents the closest that the free speech rights of teachers approached those of the general public.
In 1983, the Supreme Court clarified public employees' free speech rights in Connick v. Myers. (3) The Court ruled that when a public employee speaks out on a matter of private or personal interest and not as a citizen on matters of public concern, the speech is not protected by the First Amendment. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment." In the school setting, courts assess whether a teacher's speech is made mostly in the teacher's role as a citizen or as an employee of the school. (4) But even a teacher whose speech is a matter of public concern can be disciplined if such speech disrupts the school environment.
In 2006, the Supreme Court ruled in Garcetti that when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. (5) Some scholars have argued that this new employer-friendly rule constitutes a sharp break from the traditional Pickering test and discourages public employees from speaking out. Subsequent cases involving teachers illustrate how the Garcetti ruling is weakening the First Amendment rights of teachers both inside and outside the classroom.
In a Michigan case, the court upheld the termination of a teacher who wore a t-shirt complaining of a lack of a contract. Citing Garcetti, the court simply ruled that the t-shirt caused "disharmony" in the workplace. (6) Similarly, the Seventh Circuit ruled in 2007 that an Indiana teacher who was dismissed for sharing her views against the war in Iraq in a class discussing current events was unprotected by the First Amendment. (7)
In 2008, a school psychologist sued her school district, alleging that the district retaliated against her after she spoke about noncompliance with the Individuals with Disabilities Education Act (IDEA). A federal district court ruled that she was speaking as an employee rather than as a citizen. Citing Garcetti, the …