We wrap up the month of June with another Throwback Thursday! Today the topic is employee free speech.

We are dedicating Thursdays to the “Golden Oldie” cases that establish important principles of the law. Today the topic is employee free speech, which leads us to Mr. Pickering.

Mr. Pickering, a teacher in an Illinois school district, had an opinion about the upcoming bond election. He was opposed. He felt that the current school board had not managed money well in the past, and should not be trusted with more. So he wrote a letter to the editor of the local newspaper, opposing the bonds.

Higher ups in the district were not pleased about this, particularly in light of the fact that Mr. Pickering got some of his facts wrong. Pickering was soon out of a job. Thus we get our next Golden Oldie: Pickering v. Board of Education, from 1968. A unanimous Supreme Court ruled for Mr. Pickering. When a public school employee is speaking as a citizen on matters of public concern, the employee is protected from retaliation by the First Amendment guarantee of free speech.

Thousands of court cases since then have applied this basic principle in a wide assortment of fact situations. Cases have made it clear that the teacher does not enjoy constitutional protection when acting in his or her “employee” role. It is only when acting as a citizen, on matters of general public concern, that teacher expression is protected. Even then, there are times when a teacher’s expressive activities (i.e., rants or ill-advised statements on Facebook) may lead to trouble.

For a recent example of a case that involved a school principal, let’s consider Rock v. Levinski, decided by the 10th Circuit in 2015. Joyce Rock was principal of Career Prep High School, an alternative school in Shiprock, New Mexico. In May, 2013, the superintendent decided to close the school due to budget concerns. At a public meeting to discuss this, Ms. Rock opposed the plan. Among other things, she expressed concerns that some of the students at Career Prep would not be successful in a more traditional, and larger school.

The superintendent did not appreciate this. Ultimately, Ms. Rock was put on administrative leave and told that she would not be given another contract. She sued, and I’m sure that her lawyer must have cited our Golden Oldie, Pickering, in support of her case. But it did not work. The court ruled in favor of the school district and the superintendent. Critical to the court’s reasoning was Ms. Rock’s status as a principal:

Rock was not an ordinary employee of the District. She was not a teacher, but a principal, a high-ranking member of the management team.

The court cited a U.S. Supreme Court decision for the proposition that “The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee’s role entails.” Rankin v. McPherson, 483 U.S. 378 at 390 (1987). In other words, the higher up you go, the more cautious you should be.

Summing it up the court said:

A superintendent should be able to expect loyalty and support, at least in public, from a high-ranking employee like a principal who is responsible for implementing his policies.

So the employees that principals supervise enjoy the right of free speech. Principals do too, only not quite as much. Be careful out there.


File this one under: FIRST AMENDMENT

Tomorrow: What happens when the principal fails to acknowledge a student’s perfect attendance during the graduation ceremony? Yikes!