Academic journal article Journal of Law and Education

The Legal Standard on the Scope of Teachers' Free Speech Rights in the School Setting

Academic journal article Journal of Law and Education

The Legal Standard on the Scope of Teachers' Free Speech Rights in the School Setting

Article excerpt


It seems that the legal frame for the regulation of teachers' free speech in the school setting is well settled since the Pickering calculus and the Connick principle have been established. Presently, the courts try to reach a conclusion relying on the two criteria of "public concern" and "balancing." In my opinion, there are important but untouched points in relation to those cases. The balancing frame employed in Pickering contains a flaw in choosing the adequate models of parties for the purpose of balance. The teacher's interest as a citizen must be balanced against the school board's interest as government rather than as employer. A teacher as a citizen has no obligation to respect the interest of school board as employer. The standard of public concern should also be regarded as an additional supportive ground for the protection of a teacher's free speech right rather than as a reason for curtailing the free speech. The Supreme Court set up a threshold test in the virtue of "public concern" prior to balancing related interests, but paradoxically, the threshold inquiry can be only answered through balancing.


Public school teachers have widely enjoyed constitutional free speech rights since the Supreme Court's landmark 1968 decision in Pickering v. Board of Education.1 The case focused on a teacher's letter to a local newspaper. The statements in the letter consisted essentially of criticism of the school board's allocation of school funds between educational and athletic programs, and the superintendent's methods of informing (or preventing the informing of) taxpayers of the real reasons why additional tax revenues were being sought for the schools. The school board charged that numerous false statements in the letter damaged the professional reputation of its members and of the school administrators, and then dismissed the teacher. The Illinois courts upheld the dismissal, holding that the conduct was detrimental to the efficient operation and administration of the schools of the district.2

Reversing the state courts, the Supreme Court first ruled that teachers as public employees may not constitutionally be compelled to shed the First Amendment rights they would otherwise enjoy as citizens.3 The Court then applied a balancing principle, weighing interests of a school board as an employer against interests of a teacher as a citizen. Since Pickering, during the 1970s and early 1980s, courts have relied on the Pickering guidelines in striking down a variety of restrictions on teachers' rights to express views on matters of public interest.4

In 1983, the U.S. Supreme Court rendered another significant decision in relation to the First Amendment right of public employees in Connick v. Myers.5 In the early part of October 1980, Sheila Myers, an assistant district attorney was informed that she would be transferred to prosecute cases in a different section of criminal court. Despite her opposition, she was transferred, and she then prepared a questionnaire soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. She distributed the questionnaire to assistant district attorneys.6 She was subsequently terminated, and she filed suit, contending that her employment was wrongfully terminated because she had exercised a constitutionally protected right of free speech.

The Court's concern was to determine whether or not Myers' distribution of the questionnaire was a constitutionally protected activity. The Supreme Court took a different path from Pickering. The Court reversed the lower courts7 which held in favor of the employee on the basis of Pickering. The Connick Court placed an emphasis on the need for the speech in question to address "a matter of public concern." Even though the Court affirmed the utility of the Pickering approach, the Court ruled that it was unnecessary for the judiciary to undertake Pickering analysis unless an employee's speech could be fairly characterized as pertaining to a matter of public concern. …

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