Can a school limit a teacher’s speech?

Answer

Because you are a public school teacher, the research below details some limitations of public employees’ right to free speech in some circumstances. This discussion concerns only First Amendment issues, not any other potential issues under state or federal labor or employment law or otherwise.

In general, “public employees do not surrender all their First Amendment rights by reason of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “It is well settled that ‘a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.’” Garcetti, 547 U.S. at 413. However, “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” Garcetti, 547 U.S. at 418.

Typically, whether a government employee’s speech receives First Amendment protection against employer discipline depends on whether the speech is on a matter of “public concern”; whether the employee spoke as a private citizen and not a public employee (i.e., speech is not pursuant to “official duties”); and whether the employee’s speech interest outweighs the agency’s interest in efficiency and effectiveness. See Garcetti, 547 U.S. at 417-21.

As the Supreme Court has said, “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 547 U.S. at 421.

Your state is part of the U.S. Court of Appeals for the 8th Circuit. We are not aware of an 8th Circuit case that applies Garcetti specifically to K-12 school teachers. Other circuits have addressed whether classroom or curricular speech of K-12 teachers is pursuant to official duties under Garcetti and therefore not protected by the First Amendment against employer discipline. See e.g., Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 342 (6th Cir. 2010) (holding “the First Amendment does not protect primary and secondary school teachers’ in-class curricular speech” against discipline because such speech is pursuant to official duties); Mayer v. Monroe County Cmty. Sch. Corp., 474 F.3d 477, 480 (7th Cir. 2007) (holding elementary school teacher’s classroom speech was not protected against discipline by First Amendment because it was pursuant to official duties); Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 957 (9th Cir. 2011) (“When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee,” and therefore his classroom speech was not protected against discipline).

However, the 8th Circuit applied Garcetti to a case involving a public university employee’s speech, indicating that “‘[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.’” Lyons v. Vaught, 875 F.3d 1168, 1173 (8th Cir. 2017) (quoting Lane v. Franks, 573 U.S. 228, 229 (2014)).

In Lyons, the 8th Circuit found that a public university was permitted to discipline a part-time lecturer (a university employee) who arranged a meeting with past and present university officials and a community leader where the lecturer criticized the university for giving student athletes preferential treatment. 875 F.3d at 1170. The court determined that the lecturer’s speech during the meeting was not clearly pursuant to his employment duties. Lyons, 875 F.3d at 1175.

“Under Garcetti, when a public employee speaks on a matter of public concern pursuant to his official duties, the speech is unprotected against employer retaliation.’” Lyons, 875 F.3d at 1173 (italics in original). Following Garcetti, the 8th Circuit “concluded that a public employee’s speech is not protected by the First Amendment if it owes its existence to his professional responsibilities.” Lyons, 875 F.3d at 1174 (cleaned up). The 8th Circuit has said, “[U]nder the First Amendment, speech can be ‘pursuant to’ a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer. Speech is pursuant to an employee’s duties if it is ‘part-and-parcel of’ the employee’s concerns about his ability to ‘properly execute his duties.’” Lyons, 875 F.3d at 1174 (citations omitted).

This issue, like all other issues relating to the First Amendment rights of public employees, depends heavily on the specific facts.

Assuming a public employee’s speech is on a matter of public concern and not pursuant to official duties, the test for balancing the employee’s speech interests and the government’s interests in efficiency and effectiveness derives from the Supreme Court’s decision in Pickering v. Board of Education, 391 U.S. 563 (1968). As the Court said, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering, 391 U.S. at 568. Therefore, a “governmental employer may impose certain restraints on the speech of its employees, restraints that would be unconstitutional if applied to the general public.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004).

Courts generally recognize the government’s “interests as an employer in regulating the speech of its employees” and balance the interests of the employee “in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568. Courts thus “reconcile the employee’s right to engage in speech and the government employer’s right to protect its own legitimate interests in performing its mission.” Roe, 543 U.S. at 82.

The Supreme Court has noted that while public employers may properly be “concerned with the efficient function of their operations … [v]igilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” Rankin v. McPherson, 483 U.S. 378, 384 (1987).

The questions of what speech is pursuant to “official duties,” what is a matter of “public concern” and how to balance the competing interests are all fact-intensive. I can’t give a legal opinion on how those issues might be resolved in your case.