Teachers and the First Amendment

The principal stopped by a teacher's classroom before school today to have a conversation about some remarks she made on social media that were critical of how administration handled a recent situation that has been reported on in the local papers.

It caused lunch table conversation about teachers rights.  I found myself participating and half-remembering topics from my decade-old Educational Law class.  Pickering v. Board of Education is the important case.  This 1968 case involved a Lockport High School teacher. Here's another look at Pickering.  There have been a number of cases since then that have altered things. 

The NEA produced an article for teachers here.  It's pretty disquieting and a little chilling, and it doesn't give the whole story, which is that

The heart of the article is here:

Without going into the gory details, teacher free speech rights are fairly limited: their speech is protected only if they speak out as citizens on “matters of public concern” and their speech doesn’t disrupt the school.

In the seminal Pickering v. Board of Education case, the Supreme Court held that it’s not a First Amendment violation to dismiss probationary teachers for what they say or write, if their speech involves merely personal things (i.e. doesn’t address broader social/political issues of the day), or if the speech might disturb the workplace.
Tenured teachers, by contrast, have far greater job security than probationary teachers: they can’t be fired except for “just cause,” and they don’t need to rely on the First Amendment for protection.

Pickering in Cyberspace

To date, there have been only three court cases involving teachers who claimed that their First Amendment rights were violated by being punished because of their postings on social networking sites. The teachers lost every case.

• Connecticut teacher Jeffrey Spanierman was fired because of two cyber conversations with students on his MySpace page. In one posting, he teased a student about his girlfriend, and the student responded, “dont be jealous cause you can’t get any lol:)” Spanierman replied: “What makes you think I want any? I'm not jealous. I just like to have fun and goof on you guys. If you don't like it. Kiss my brass! LMAO.” He also jokingly threatened another student with lifelong detention for calling him “sir.” Pretty mild stuff, really.
  
  But a federal court ruled that Spanierman’s termination didn’t violate the First Amendment because his speech “was likely to disrupt school activities.” The court faulted the teacher for failing “to maintain a professional, respectful association with students” and for communicating with students “as if he were their peer, not their teacher.” Such conduct, “could very well disrupt the learning atmosphere of a school,” the court said.
• Tara Richardson was a mentor for beginning teachers who sued the Central Kitsap (Washington) School District claiming that she was demoted because of comments she posted on a personal blog. She described one administrator as “ a smug know-it-all creep” who has “a reputation of crapping on secretaries….”
  
  Last June, a federal appeals court rejected her First Amendment argument, finding that her nasty, personal comments interfered with her job because they “fatally undermined her ability to enter into confidential and trusting mentor relationships” with beginning teachers.
• And then there’s the sad tale of Pennsylvania college senior Stacey Snyder who was dismissed from her student teaching position because of “unprofessional” postings on her MySpace site, which she urged her students to visit. Her site included comments criticizing her supervisor and a photograph of her wearing a pirate hat and drinking from a plastic cup with the caption “drunken pirate.”

The UNC Law Journal blog is slightly even more frightening, citing a case where a teacher was fired for posing in lingerie before she was hired, even though she had shared her modeling career with the BOE during interviews. 

A better picture of teacher rights can be found here in an eJEP article from 2016.  It involve a two-pronged test that includes considering whether the comments disrupt the teacher's ability to teach, form relationships, or breaks the code of ethics.  I understand this article also to say that if it's a "public concern," then teachers right to free speech is STRONGER.  Pickering won because it was a an important political topic, even though he was wrong on some facts.

controversial teacher expression that leads to a substantial disruption might fall within the boundary of First Amendment protection if that expression addresses a matter of social importance. For example, a Florida teacher’s controversial Facebook post disparaging gay marriage addressed a matter of public interest and was therefore protected speech under the Pickering precedent

If you are disparaging, speaking badly about individuals or students, or engaging in compromising behaviors in photos which might lead to a disruption of a relationship with students or supervisors, there's less chance of protection.