ISTOCK.COM/RAWF8

When employees post something controversial on social media, is it legal for school leaders to discipline them? If the posts demean students, criticize school leaders, or complain about work conditions, they could wreak havoc by igniting community outrage and damaging trust. In lawsuits regarding schools’ discipline of employee speech, courts balance public employees’ free speech rights with employers’ interests in maintaining an efficient workplace (Johnson v. Unif. Sch. Dist., 2022).

Generally, courts have ruled that public school employees’ free speech rights are limited; however, school leaders must also be careful not to discipline or retaliate against employees for speech that is protected. When employees speak in their roles as private citizens and comment on “matters of public concern,” their speech is typically protected. However, when employee speech is “pursuant to official job duties” or about individual workplace complaints, courts have determined that this type of expression is not protected by the First Amendment (McCarthy, Eckes, & Decker, 2019, p. 265). Therefore, some vital questions school leaders should ask when faced with controversial employee speech include: What was said? Where was it said? How was it said? Thus, the content, context, and form matter (Connick v. Myers, 1983). This article addresses this complex and confusing area of employee speech rights by answering commonly asked questions.

What Does “Pursuant to Official Job Duties” Mean?

In 2006, the U.S. Supreme Court determined in Garcetti v. Ceballos that an employer could discipline an employee for speech that was made “pursuant to official duties,” so it is helpful to unpack what this phrase means. Speech that is pursuant to official duties includes speech that is directly tied to an employee’s role and responsibilities. If the employee is speaking in their role as a public school educator—for example, while they are teaching students in the classroom—then that speech is connected to their job responsibilities, and the school district could discipline the employee. For example, when a teacher shared her opinion about an anti-war demonstration with her students during class, a federal district court determined her comments were pursuant to her job duties and were not constitutionally protected (Mayer v. Monroe Cty. Cmty. Sch. Corp., 2007).

In 2014, the Court clarified that, “the mere fact that a citizen’s speech concerns information” that was acquired on the job “does not transform that speech into employee—rather than citizen—speech.” (Lane v. Franks, 2014, p. 240). Therefore, to determine whether school leaders can discipline employee speech that is “pursuant to official job duties,” school leaders should evaluate whether the speech is related to what the employee was hired to do, rather than simply whether the employee made the speech at work.

Some factors to consider include: 1) whether the employee was paid to make the speech, 2) whether the subject matter is within the employee’s responsibilities, 3) whether the speech took place at the place of employment, 4) whether the speech concerned a topic known to the employee only because of their position, and 5) whether a reasonable observer would view the speech as being uttered on behalf of the employer (Bruce v. Worcester Reg’l Transit Auth., 2022). In sum, if the speech is considered employee speech, then school leaders can discipline the employee for their expression. However, the analysis becomes more complicated when employees utter the speech in their role as private citizens rather than pursuant to their official job duties.

What Does “Matter of Public Concern” Mean?

When an employee is speaking as a private citizen and addressing a “matter of public concern,” a school district typically cannot discipline the employee for that type of speech. Matters of public concern are topics that society generally deems important, such as newsworthy topics. They include “political, social, philosophical, or other issues of importance to the community” (McCarthy et al., p. 266).

Importantly, it is possible for employees to learn of matters of public concern through their employment. The mere fact that they learned about these matters on the job does not automatically make them “pursuant to their official job duties.” Examples of employee speech being protected when it was learned about on the job include whistleblowing speech when employees expose government misconduct or uncover legal violations (Myers v. City of Centerville, 2022). Additionally, employees may voice opinions about district issues that they learned about through their employment such as the school board’s financial decisions or proposed scheduling changes. When employees speak about these local issues, they are likely to be considered matters of public concern instead of being pursuant to official job duties.

Analysis will depend on content, context, and form of speech
PROTECTED speech if:NOT PROTECTED speech if:
• Matters of public concern that are spoken as a
private citizen and employee’s interest outweighs
school’s interest
• Whistleblowing of wrongdoing
•Concerted union activity for mutual aid
or protection		• Matters of public concern that are spoken as a
private citizen and school’s interest outweighs
employee’s interest
• Pursuant to official job duties
• Personal grievance/individual workplace
complaints

Even if Speech Is a “Matter of Public Concern,” Can the School Still Discipline or Dismiss an Employee?

Yes, even if an employee’s speech is deemed a matter of public concern, courts have upheld discipline and dismissal of school employees when the school district’s interest in the efficient operation of the workplace outweighs the employee’s interests in free expression. The U.S. Supreme Court developed this balancing test in Pickering v. Board of Education (1968). In Pickering, the Court analyzed whether a teacher’s speech about matters of public concern “impair[ed] teaching effectiveness, jeopardize[d] relationships with immediate superiors or coworkers, or interfere[d] with the management of the school” (McCarthy et al., 2019, p. 269).

The Pickering balancing test often comes into play when employees’ online speech is scrutinized. While social media posts are often within the scope of an employee’s free speech rights, posting publicly also increases the chance of internal and external disruption of school operations. In a 2022 case, Durstein v. Alexander, a federal district court applied this balancing test to a social studies teacher’s tweets that disparaged Muslim, Jewish, and African American individuals. The court reasoned that the tweets violated the district’s policy and undermined the school’s functioning. The teacher’s speech disrupted the efficient operation of the school, as several students complained and reported a lack of confidence in the teacher. This disruption caused external conflict as well. The tweets led to press coverage and various community complaints requiring administrator response. The court determined that because the teacher was in a position of public trust and because her job required discussion of religion with students, her dismissal was warranted.

While social media posts are often within the scope of an employee’s free speech rights, posting publicly also increases the chance of internal and external disruption of school operations. 

What About Speech That Involves Individual Workplace Complaints?

When an employee complains of unlawful discrimination under federal or state law, then employers cannot retaliate against employees for such reports (Jackson v. Birmingham Bd. of Educ., 2005). But when employees complain about incompetent management, have conflicts with their coworkers or supervisors, and criticize most non-discriminatory internal affairs, the U.S. Supreme Court has ruled these personal grievances are not protected speech under the Free Speech Clause of the First Amendment (Connick v. Myers, 1983). To provide a recent illustration, a teacher who had been employed with the district for 30 years sent anonymous letters to her colleagues’ homes complaining about fellow teachers and administrators. The state appellate court reasoned that although the competence of school employees was relevant to the public interest, the teacher’s letters were not aimed at alerting the public. Therefore, after reviewing the content, context, and form of the speech, the court ruled that the speech was an individual work complaint, so the teacher could be dismissed (Fischer v. Sioux City Cmty. Sch. Dist., 2022).

Recommendations

To avoid sticky and time-consuming issues surrounding employees’ controversial speech, it is vital for districts to have employee speech policies. School leaders should ensure that limitations on employee speech are content-neutral. They also must ensure that any discipline does not infringe on any potential employees’ rights under state law, such as state-permitted rights to engage in protected concerted union activity. To prevent discipline, educate the entire school staff about the limits to their speech—especially their social media posts. Because the rules governing what is and is not protected are complicated, it may be best to invite school attorneys to present to employees and answer questions. When educating employees, provide multiple hypothetical situations that illustrate how content, context, and form matter. Spend time unpacking the legal language that courts apply to employee speech such as “pursuant to official job duties,” and “matters of public concern.” Finally, share the table on page 48 to help summarize the main ideas of when employee speech is or is not likely protected by the First Amendment.

Janet R. Decker, JD, PhD, is an associate professor of education at Indiana University and a co-author of Legal Rights of School Leaders, Teachers, and Students. Allison Fetter-Harrott, JD, PhD, is an associate professor and the Elmon and Lucile Williams Endowed Chair in Law and Public Service at Franklin College. Amy Steketee Fox, JD, is a partner at Church Church Hittle + Antrim.

References

Bruce v. Worcester Reg’l Transit Auth., 34 F. 4th 129 (1st Cir. 2022).

Connick v. Myers, 461 U.S. 138 (1983).

Durstein v. Alexander, 629 F.Supp.3d 408 (S.D.W.V. 2022).

Fischer v. Sioux City Cmty. Sch. Dist. & Bd. of Dirs., 2021 Iowa App. LEXIS 1058 (Iowa Ct. App. 2022).

Garcetti v. Ceballos, 547 U.S. 410 (2006).

Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005).

Johnson v. Unif. Sch. Dist., 580 F. Supp. 3d 999 (D. Kan. 2022).

Lane v. Franks, 573 U.S. 228 (2014).

Mayer v. Monroe Cty. Cmty. Sch. Corp., 474 F.3d 477 (7th Cir. 2007).

McCarthy, M., Eckes, S., & Decker, J. (2019). Legal rights of school leaders, teachers, and students (8th ed.). Pearson.

Myers v. City of Centerville, 41 F.4th 746 (6th Cir. 2022).

Pickering v. Bd. of Educ., 391 U.S. 563 (1968).