First Amendment Rights in the Workplace

 Good morning, it’s Christine again.  And it’s true, I wasn’t fired over that piece I wrote two weeks ago, but I could have been.  The First Amendment doesn’t bind private employers (which is what WGTRK is) in the same manner it does public employers (which is what our public schools are). I would have fought it, but still.

So let’s explore an excellent case out of New York City and take a look at the First Amendment rights of public school employees on the job.  This case involves a veteran P.E. and Health teacher at the junior high level and her sex ed lesson to a group of 8th graders.  The court’s outstanding opinion, which I highly commend to your reading, begins thus:

To a senior judge, father and grandfather, educated in the New York City public schools, there appears to be no more daunting undertaking than discussing sex and HIV/AIDS with a class of female and male thirteen- and fourteen-year-old eighth grade students.  Executing such a task would require great sensitivity, skill, commitment, and not a little courage.  This mission was given to plaintiff Faith Kramer, a veteran city school teacher of twenty-six years, holder of bachelor’s and master’s degrees in education from Brooklyn College and a 6th year certificate from Staten Island College, with no blemish in her outstanding record as a teacher of young adolescents.

Ms. Kramer was provided with a syllabus that directed that students be encouraged to use terms they understood.  In the classroom discussion students uttered the somewhat vulgar words they knew.  Because her charges departed from the nomenclature of polite discussion, Ms. Kramer was removed from the classroom, kept in a non-teaching detention for eight months, investigated, provisionally determined by her principal to have committed a serious violation of a school regulation, denied a satisfactory rating for the school year, and deprived of the extra income she had previously been earning from extra ‘per session’ assignments.  Ultimately, the charge of violating school regulations was not pursued, and plaintiff was never brought up on formal disciplinary charges.  She has been reinstated to her classroom duties.”

Ms. Kramer’s lesson involved helping the students understand conventional terms for various parts of the human anatomy and anatomical processes, and their role in the transmission of HIV.  Literally, there was a standard curriculum involved in this lesson, encouraging a technique in which students were to basically free flow “the vulgarism of the street” and their teacher was to offer them instead the “Latinism of the academy,” to help them understand the concepts of the vocabulary to which they were accustomed.  Remember, these are 8th graders.  Let me just say that this opinion includes a “Glossary of Relevant Sexual Terms” that includes everything from “schmeckle” to “tricycle” (which was not found in the sources consulted), and frankly, none of it was that shocking to this jaded school lawyer, and some of it was actually sort of sweet (“peepee”).

Ms. Kramer went with it (as she had for something like 15 years) and on one particular year, parents complained.  Keep in mind New York has collective bargaining, but in the parlance familiar to Texas, she was placed on administrative leave with pay and kept out of her classroom for the remainder of the year.  The NYC public schools have a practice of allowing teachers to earn extra pay for extra duties – akin to our coaching stipends – and she was denied access to those opportunities during this period and in the next school year based on the appraisal implications resulting from this debacle.  She sued, alleging violations of her First Amendment rights.

So does the First Amendment act to safeguard Ms. Kramer from engaging in this vulgar lesson? No.  The court held that, as a public school employee acting pursuant to her official duties, Ms. Kramer was not entitled to the protections of the First Amendment with regard to the content of her lesson.  The court considered this “public employee” speech and not on a matter of public concern.  The court also noted that even if it had chosen to apply the more protective First Amendment standard afforded to student speech and sometimes afforded to teachers in the vast body of First Amendment jurisprudence, her claims would still fail.  Ms. Kramer’s speech was unquestionably “school-sponsored” as it was part of a lesson, and the NYC public schools board had a legitimate interest in ensuring that teachers implemented lesson plans in a manner considered appropriate by the board.  Referring readers to the aforementioned Glossary, the court concluded the speech at issue was pretty obviously vulgar and inappropriate.

The case is Kramer v. New York City Board of Education and it is available online.


 Tomorrow:  It’s the Last Day of School in the Badillo House!