Can teacher lose job if student-survey questions school board policy?

Answer

Your inquiry could be boiled down to two questions related to free speech:

1. What speech restrictions can the school administration place on students conducting a survey for a particular class, specifically a survey that may contain controversial questions related to school board members and/or policies.

2. Can the school administration prevent a teacher’s union from posting controversial opinions regarding the school board on a non-school sponsored website?

In California, student speech at California public schools is given broader protection than that provided by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), in which the U.S. Supreme Court held that school-sponsored student publications do not enjoy the same First Amendment protections as professional publications. Smith v. Novato Unified School Dist., 150 Cal. App. 4th 1439, 1452 (2007) (as a matter of California statutory law, the broad power to censor expression in school sponsored publications for pedagogical purposes recognized in Kuhlmeier is not available to this state’s educators). In Kuhlmeier, the court upheld the school’s refusal to publish two pages of the student newspaper that included an article describing students’ experiences with pregnancy and an article about the children of divorced parents. Id. at 263.

In California, Education Code section 48907 provides that:

“students at public schools” shall have the right to exercise freedom of speech and of the press including, but not limited to, the use of bulletin boards, the distribution of printed materials or petitions, the wearing of buttons, badges, and other insignia, and the right of expression in official publications, whether or not the publications or other means of expression are supported financially by the school or by use of school facilities, except that expression shall be prohibited which is obscene, libelous, or slanderous.

“Also prohibited shall be material that so incites pupils as to create a clear and present danger of the commission of unlawful acts on school premises or the violation of lawful school regulations, or the substantial disruption of the orderly operation of the school.” Educ. Code section 48907(a).

The Education Code also provides protection for school employees:

“An employee shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in the conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.” Educ. Code section 48907(g).

Additionally, public high school students are protected by section 48950 of the Education Code, which states that schools “shall not make or enforce a rule subjecting a high school pupil to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside of the campus, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” Educ. Code section 48950(a).

Moreover, a school employee “shall not be dismissed, suspended, disciplined, reassigned, transferred, or otherwise retaliated against solely for acting to protect a pupil engaged in conduct authorized under this section, or refusing to infringe upon conduct that is protected by this section, the First Amendment to the United States Constitution, or Section 2 of Article I of the California Constitution.” Educ. Code section 48950(g).

In Smith, the plaintiff was a student who had written editorial pieces for a school journalism class that administrators found offensive. 150 Cal. App. 4th at 1447-48. The editorial at issue, titled “Immigration,” was published in the student newspaper. Id. Although “Immigration” was published, the school later stated that it violated the school’s speech policies, that the piece should never have been published, and that all remaining copies of the newspaper should be retracted. Id. at 1448.

The student alleged that his free speech rights were violated when the school declared that he had violated its speech policies. The state supreme court agreed, finding that the editorial did not fall within a definition of “incite” that would place it outside the bounds of the First Amendment. Id. at 1457. The court stated that a school “may not prohibit student speech simply because it presents controversial ideas and opponents of the speech are likely to cause disruption.

Schools may only prohibit speech that incites disruption, either because it specifically calls for a disturbance or because the manner of expression (as opposed to the content of the ideas) is so inflammatory that the speech itself provokes the disturbance.” Id. Likewise, although speech that was actually libelous or slanderous with respect to a particular board member would not be protected, it is not clear how the kind of communications you describe would constitute libel or slander.

With respect to your second questions, government regulation of employee speech implicates First Amendment issues and is sometimes unconstitutional. The question usually boils down to the “‘balance between the interests of the [employee], as a citizen, 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.’” Connick v. Myers, 461 U.S. 138, 140 (1983), quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).

Courts considering government employee speech issues first ask whether the speech at issue “addressed a matter of public concern.” Kirchmann v. Lake Elsinore Unified School Dist., 57 Cal. App. 4th 595, 601 (1997). If the speech concerns a matter of public concern, “we must balance [the employee’s] interest in making her statement against the interest of the [employer] in ‘”promoting the efficiency of the public services it performs through its employees.”‘” Id., quoting Rankin v. McPherson, 483 U.S. 378, 384-85 (1987).

Although government “has ‘a freer hand in regulating the speech of its employees than it has in regulating the speech of the public at large,’ … public employees do not lose their rights as citizens to participate in public affairs by virtue of their government employment. … In recognition that ‘government employees are often in the best position to know what ails the agencies for which they work,’ … the First Amendment may prohibit government retaliation against employee speech that touches matters of ‘public concern.’” Ulrich v. City and County of San Francisco, 308 F.3d 968, 977-78 (9th Cir., 2002) (internal citations omitted).

The Pickering case seems to be analogous to your situation. In that case, a school teacher was fired by the board of education after sending a letter to a local newspaper that was critical of board policies. 391 U.S. at 564. The Supreme Court found that the subject on which the teacher commented — whether a school system requires additional funds — was a “matter of legitimate public concern,” and that “free and open debate is vital to informed decision-making by the electorate.

Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” Id. at 571-72. The Court also noted that it had, in past cases, indicated that First Amendment protection was also appropriate where “statements are directed at [a public employee’s] nominal superiors.” Id. at 574.

There would seem to be a good argument that a union-maintained blog or website that permits teachers — as members of the community who have valuable insight to offer — to comment on board policies would qualify as “free and open debate” that is “vital to informed decision-making by the electorate.”