Having just observed Memorial Day, a special time to honor military personnel who died while serving the United States, most Americans would probably be stunned to learn that teachers and other public employees DO NOT HAVE full First Amendment rights when working in their capacity as a public employee.
Considering we honor and memorialize American servicemen and women who gave their lives to protect the nation and its fundamental values, it is more than a bit disconcerting to think that public employees are treated differently than everyone else when it comes to what is arguably the most sacred law of the land.
But as the Connecticut Education Association wrote in a recent memorandum sent out to Connecticut’s teachers under the headline “Constitutional limitations on individual teacher advocacy for opting out,”
“There is no protection under the First Amendment’s freedom of speech for a teacher while on duty for advocating opting out of standardized testing for students.”
The CEA memo was drafted by the union’s Member Legal Services lawyers and released following the CEA’s recent Representatives Assembly meeting.
While Connecticut school teachers should take the advice and guidance from their union’s lawyers extremely seriously, the memo falls short of providing teachers with all the information they need about the legal issues surrounding what a teacher can or cannot say about the Common Core or the Common SBAC testing issue or when they can say it.
For examples, what are the First Amendment rights of teachers when they are speaking in their capacity as parents?
And what rights do they have when they are not speaking as teachers, but instead are functioning as citizens of the United States?
It would be extremely helpful if the CEA provided teachers with additional information clarifying what rights individuals, who happen to be teachers, have when they are not speaking in their capacity as public school teachers.
The CEA Member Legal Services memo opens with;
“There is no protection under the First Amendment’s freedom of speech for a teacher while on duty for advocating opting out of standardized testing for students. Similarly, there is little, if any, constitutional protections for a teacher advocating opting out while off duty. The reason for this is that school districts administer standardized tests pursuant to state law, specifically Chapter 163c of the Connecticut General Statues. Since administration of standardized tests is part of a teacher’s job duties, a teacher’s encouragement of opting would be viewed by the district as being disruptive of its obligation under state law and district policy.”
Although the memo fails to cite the sources used to back up their definitive statement, it appears the CEA’s legal team is relying on the foundational 2006 case of Garcetti v. Ceballos in which the United States Supreme Court voted by a 5 to 4 margin to limit the First Amendment rights of all public employees.
The Supreme Court ruled that while the First Amendment protects the speech of public employees when they are acting “as citizens,” they don’t have the same protection for speech when it is spoken “pursuant to… official responsibilities.”
In this little known, but extremely important case, the Supreme Court reasoned that “[g]overnment employers, like private employers, need a significant degree of control over their employees’ words and actions” in order to secure “the efficient provision of public services.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
The court decision goes on to explain that government needs “a significant degree of control over their employees’ words and actions,” and that therefore, they may restrict employees’ speech made “pursuant to their official duties.” Garcetti, 547 U.S. at 418, 421.
The result of this and subsequent cases is that public employee’s First Amendment rights can be limited if the government has a legitimate “proprietary interest in directing or controlling the individual’s speech.”
Like the National Education Association, the Connecticut Education Association has sought to warn teachers that they do not have unbridled First Amendment Rights when they are acting in their capacity of public employees.
However, the CEA memo unfortunately fails to explain that people, who are teachers, none-the-less have broader First Amendment rights when they are clearly speaking in the role as parents, elected official or citizens.
The underlying problem is that the courts have not been exactly clear about when those broader rights exist.
For one thing, it appears that there are no specific limitations on an individual’s First Amendment rights when they are exclusively acting in their capacity as a parent rather than a teacher.
However, the CEA memo reads,
“There is only a qualified protection for a teacher’s off duty speech insofar as advocating opting out is concerned. A school district’s interest in its efficient administration of education can outweigh its public employee’s right to speak on issues of public concern. In this balancing test, a first amendment challenge to discipline or termination is unlikely to succeed.”
Teaches should be cautious when speaking with their “teacher voice,” but CEA legal unit does a disservice to Connecticut’s teachers by simply stating that any, “first amendment challenge to discipline or termination (for “off-duty” speech) is unlikely to succeed.”
The case law simply does not support such a broad claim.
The real problem revolves around a teacher addressing issues while serving in their official capacity as a public school teacher.
The CEA memo notes that “Prohibited actions which could give rise to discipline and possible termination include but are not limited to the following actions; conversations with parents encouraging opting out, posting on school sponsored websites, posting on private websites, or handing out flyers.”
As the law stands, it would appear that a teacher who encourages his or her students or the student’s parents to opt out of the Common Core SBAC test or posts such information on the school website could be successfully targeted by the school district.
It is far less clear that an individual who is acting solely in their capacity as a parent or as an American citizen lacks the right to address that Common Core and its related Common Core SBAC testing program.
In New York, the 600,000 member NYSUT union approaches the issue by stating,
“A teacher who, in conversations with students or parents, takes a position on testing contrary to the school district’s educational program may potentially be subject to disciplinary action, e.g. charges of misconduct or insubordination. The Supreme Court has held that when a public employee speaks in his/her capacity as an employee, the speech is not constitutionally protected.
However, because standardized testing is a matter of public concern, a local speaking as a union, or an individual member speaking as a parent or citizen, about educational concerns over standardized testing, for instance, in a letter to the editor or in a statement to the Board of Education, is protected by the U.S. Constitution at least so long as they are not encouraging other parents or students to opt out from a test.”
It would be helpful if the CEA put forward a statement agreeing with that stance or, if not, provided alternative guidance to Connecticut’s teachers.
While clarifying the First Amendment rights of teachers, Connecticut’s teacher unions should also join their fellow unions from around the country in making it extremely clear that the union will aggressively fight any efforts by a school district to harass, discipline or terminate any teacher who speaks out about a parent’s fundamental right to opt their children out of the Common Core tests.
In New York and in other locations around the country, the teacher unions have put state and local officials on notice that attempts to punish teachers for speaking honestly about the testing scheme will be met with the full resources of the union.
Public attention and legal action have an impact.
In nearby Rhode Island, a teacher was suspended early this year for telling students about their opt-out rights. Following the suspension the backlash against the school district was immediate and significant and the teacher was soon re-instated. (See RI Teacher Suspended for Discussing Opt Out, Students Demand his Return.)
So, in addition to providing accurate information about the legal issues surrounding teachers and their First Amendment rights, the Connecticut Education Association and American Federation of Teachers – CT Chapter should be putting the State of Connecticut and Connecticut’s school districts on notice that any and all un-American efforts to tread on the Free Speech rights of Connecticut’s teachers will be meet with swift and overwhelming force.
Meanwhile, the most important thing that all citizens can do for their children and Connecticut’s teachers and public schools is to opt out of the unfair and discriminatory Common Core SBAC test.