pickering & other cases, public school law, dr. w.a. kritsonis

8/14/2019 Pickering & Other Cases, Public School Law, Dr. W.A. Kritsonis

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Chapter 6

PEDG 5344

William Allan Kritsonis, PhD



Pickering v. Board of

Education Pickering, a teacher, was dismissed for writing and publishing in anewspaper a letter criticizing the Board’s allocation of schoolfunds between educational and athletic programs and theBoard’s and superintendent’s methods of informing, or preventing the informing of, the school district’s taxpayers of

the real reasons why additional tax revenues were beingsought for the schools. The Board, as well as the lower courts,found that the letter, which contained false statements, wasdetrimental to the interests of the school system and that theinterest of the school should take precedence over the

teacher’s claim to freedom of expression.




Education The US Supreme Court ruled unanimously that theschool bard was wrong in firing the teacher. Sincethe statements in the letter were not aimed at any

person with whom the teacher would come incontact in carrying out his duties, and thefalsehoods were not carelessly made nor did theyimpede school operations, the Supreme Courtconcluded that the teacher should not have beendismissed.




Education Pickering is an important case because it recognizes thateducators, and by implication, all public employees do have aright to freedom of expression as citizens in the community.

It also conveys to administrators the burden of documentationthey must shoulder to take adverse action against an employee

who they believe has abused the right. If it can be shown that the statements are made recklessly or with knowledge of their falsity, that school functioning or theteacher’s performance is impaired, or that the superior-subordinate relationship is undermined, then sanctions, includingdismissal, might appropriately be brought against the employee.

**Pickering recognized that educators have a substantial right tofreedom of expression as citizens of the community and conveysto administrators the burden of documentation in order to takeadverse action against the employee.



Nieto v. San Perlita ISD

In 1990, Frank Nieto, a school maintenance supervisor,was discharged after he complained that theschool’s basketball coach was abusing students.Nieto had conducted his own investigation, which

included puling students out of class for questioning. Teachers complained that his actionswere highly disruptive.

The court held that Nieto’s speech was of public

concern, but the public interest was outweighed bythe district’s interest in “promoting the publicservices it performs.”



Tinker v. Des Moines SchoolDistrict Students wore armbands in opposition of the Vietnam war and were

suspended; their parents sued citing infringement of their children’s right to free speech.

The US Supreme Court agreed with the students noting that “schoolofficials do not possess absolute authority over their students.”The court did not adopt an “anything goes” viewpoint; it wasemphasized that student expression in or out of class that“materially disrupts classwork or involves substantial disorder or invasion of the rights of other is, of course not immunized bythe constitutional guarantee of freedom of speech”. Since the

wearing of the armbands generated no significant disturbancewithin the school, the court decided for the students.



Alaniz v. San Isidro

The 5th Circuit upheld a lower court ruling in favor of theschool district’s deputy tax assessor-collector, whowas fired after an opposition political party won controlof the board. Alaniz had actively supported the

policies and candidates of the incumbent party,headed by her brother-in-law. She maintained shewould not have been fired but for her 1st amendment-protected political activities.

The trial court awarded Alaniz $51,000 in back pay and

$40,000 in compensatory damages for mental anguishand emotional distress and ordered her reinstated toher position.



Whalen V. Rocksprings ISD

A 7th grade science teacher who became involved in an extendedquestion-and-answer session with her class that encompassedmatters related to sex education. In the course of respondingto questions about AIDS, contraceptives, and the developmentof sperm, the teacher engaged in what school officials

considered unnecessarily graphic description harmful to theemotional well-being of students of that age and grade level inthe largely rural community. For example, with regard tolearning more about sperm, the teacher advised male studentsin her class to go home, lock the bathroom door, andmasturbate. The teacher was dismissed mid-year following adue process hearing, a dismissal the commissioner of education upheld.



Whalen V. Rocksprings ISD

The commissioner stated that for a teacher to show that hisor her comments were protected by academic freedom,the teacher has to show that the comments werereasonable relevant to the subject matter of the class,

had a demonstrated educational purpose, and were notproscribed by a school regulation.

**While teacher discussion rights in the classroom—ascontrasted with the right to control teachingmethodology—are protected under the weight of judicial

authority, they can be abused and lose their protection.



Expression Within the School

There are three dimensions: (1) expression outside the classroom but on the

school grounds

(2) classroom academic freedom (3) retaliation for speaking out about suspected

wrongdoing under the Texas Whistle Blower Statute




In 1979, the US Supreme court ruled that the 1st and14th amendments can, under certain circumstances,protect private communication between a public-school teacher and a school principal.

At the same time, the court stated that sincesubordinate-superior relations are particularlysensitive, the content of what is said, as well as thetime, place, and manner in which it is said, can be

taken into account in deciding what is and is notconstitutionally protected.




In 1983 (Perry Education Assn v. Perry Local

Educator Assn) the Court decided that schoolmailboxes are not automatically “public

forums” available to teachers, theassociations, and others to disseminateinformation.




Administrators must be sensitive to employee1st amendment rights when making decisionsabout school mailboxes, Web sites, and

similar types of communication systems.




Connick v. Myers (1983) an assistant DA was fired for distributing questionnaires that

dealt with internal working conditions; the question involved theissue of whether employee expression concerning on-the-jobcomplaints is constitutionally protected and thus cannot be

used in a negative employment decision. The Court ruled that such expression is not protected

and thus can serve as grounds for dismissal. In termsof school, an administrator must determine whether theexpression is protected by the 1st amendment—if theexpression does not deal with community interests, thenin general it is not protected.




An employee’s speech is protected when theemployee speaks as a citizen on matters of public concern but not when he or she

speaks on matters only of personal interest.




In 1995, the 5th circuit identified a 3-part test for determining when particular speech by a publicemployee is protected:

(1) the speech must have involved a matter of publicconcern

(2) the public employee’s interest in commenting onmatters of public concern must outweigh the employer’sinterest in promoting efficiency

(3) the employee’s speech must have motivated thedecision to discharge the employee



Texas Whistleblower Act In 1983, the legislature passed a law known as “The Whistleblower Act”

prohibiting a governmental body from retaliating against an employeewho reports a violation of law to the appropriate law enforcementauthority if the report is made in good faith.

Each governmental body is required to post a sign in a prominent placeinforming employees of their rights under this act. A violation of schoolpolicy is not within this definition (Lane v. Galveston ISD).

An employee or appointed officer who is fired or otherwise penalized for

reporting may sue for injunctive relief, money damages, court costs andattorney’s fees (a cap on the amount is set). The Texas Attorney General has advised that a school district that

prevails in a whistle-blower lawsuit is under no obligation to pay thenon-prevailing employee’s legal fees.

The employee has the burden of proving that the adverse personnel actionwas in retaliation for reporting a violation of the law, through the law

presumes this to be the case if the termination occurs within ninety days of making a report. The governmental entity is not liable if it can show that it would have

made the same negative employment decision in the absence of theemployee’s reporting.



Texas Whistleblower Act

In Castleberry ISD v. Doe, the court made clear that the 90 daytimeline stops while the grievance is being processed.

School districts can bear a heavy burden of responsibility if they uphold retaliatory action against an employee who reportsin good faith an alleged violation of the law.

The Texas Supreme Court has defined “good faith” to mean anhonest belief that the conduct is a violation of the law, a belief that is reasonable in light of the employee’s training andexperience.

**Example of test question: Mr. Smith brought into class an

unapproved book. Mrs. Farmer disapproved of the book andturned in the teacher. What could be the outcome? Accordingto the Texas Whistleblower Act…



Academic Freedom

Involves four sometimes clashing interests: (1) interests of the state and local school board in

seeing that the curriculum reflects the collectivewill of the community

(2) the interest of the student in having access toknowledge and ideas

(3) the interest of the teacher as a professional incontrolling class discussions & choosinginstructional methodologies

(4) the interest of parents in controlling their children’s education.



Academic Freedom

Epperson v. Arkansas- Supreme Court struck downan Arkansas statute forbidding the teaching of evolution in public schools The 5th Circuit court of appeals has ruled that public-school

teachers do have a 1st and 14th amendment liberty right toengage in classroom discussion.

Profanity in the classroom has no constitutional protection.The use of profanity in a college classroom to “motivate”students is not related to any matter of public concern andis not protected by the 1st amendment.

The 5th Circuit ruled that academic freedom doesnot include the right to award a grade (Hillis v. SFASU)



Academic Freedom Given the tenuous nature of the teacher’s claim to classroom

academic freedom, the following guidelines should be observed: Teachers should be careful not to use their freedom of expression

rights within the school in such a way as seriously to erode their abilityto work with school administrators and colleagues.

Before teachers make any determination for themselves about whatthey can or cannot do in the classroom, they should endeavor to

ascertain what school policy is with respect to curriculum practices andthe role of the teacher.

While teachers to have a constitutional right in Texas by virtue of the5th circuit decision in Kingsville to engage in classroom discussion, theright has not been accorded much support by the Commissioner of Education. Teachers should make sure that the discussion is germane

to their subject-matter area, is balanced, and has not undermined their effectiveness. Teachers should proceed with caution when it comes to selecting

materials and teaching methodology, as well as awarding grades. It isalways best to check with board policy and administrative directivesbefore proceeding.



Shelton v. Tucker (1960)

US Supreme Court struck down an Arkansasstatute requiring teachers to file affidavitslisting their membership in organizations for

the previous 5 years.



Ch 617 of the TX governmentcode

recognizes that “An individual may not bedenied public employment because of theindividual’s membership or non-

membership in a labor organization.



TEC 21.407

prohibits a school district from directly or indirectly requiring or coercing a teacher to join a group or to refrain from participating

in political affairs.



TEC 21.408

provides professional employees have a rightto join or not to join any professionalorganization or association.



Hazelwood School District v.Kuhlmeier (1988)- Concerning school sponsored student publications

The Supreme Court ruled that school administrators have broadcensorship powers over student newspapers produced under theauspices of the school as long as their actions are based on“legitimate pedagogical concerns” and as long as the school has

not by policy or practice converted the school-sponsored studentnewspaper into a public forum where controversial views can befreely expressed. When students create messages on their own outside of school

hours without using school equipment, they normally are beyond

the purview of the school. When classroom expression involves threats, students are less

likely to find their speech constitutionally protected.



Clark v. Dallas ISD

Concerning non-school sponsoredpublications

Students wanted to meet outside the cafeteria

to pray, read the bible, and distribute religiousmaterials to students as they exited schoolbuses. The school rejected the plan based on

3 premises but a federal district court rejectedall 3 premises based on Tinker.



Clark v. Dallas ISD

Most TX schools have adopted a prior review policy with 5components:(1) criteria that spell out what is forbidden (2) procedures by which students submit proposed materials to be

reviewed (3) a brief period of time during which the principal or other school

official must make a decision (4) an appeal procedure(5) a reasonable time during which the

appeal is to be decided. These prior review systems must be carefully worded and applied

to withstand constitutional scrutiny. School officials also have theright to determine the time, place, and manner of distribution of non-school sponsored materials (Shanley v. Northeast ISD).

These prior review systems must be carefully worded and appliedto withstand constitutional scrutiny. School officials also have theright to determine the time, place, and manner of distribution of non-school sponsored materials (Shanley v. Northeast ISD).



Concerning Student Freedom of Association

High school students have a right toassemble peacefully for expressivepurposes in the vicinity of the public school,

and students at the collegiate level have arelatively unfettered right to assemble andto associate



TEC 37.105

Students at the secondary level also have aright to come together for expressivepurposes on the public school campus as

long as no material disruption or invasion of the rights of others occurs; the right of association does not automatically extend tonon-students.



Does the right to associaterestrict school officials in

deciding which student groupsmay or may not function asschool-recognizedorganizations?It depends on the type of group and the

legitimacy of the school’s reasons in denyingstatus as a campus organization to a student

group.



TEC 37.121

It is a crime for students or non-students to bea member of or pledge membership tofraternities, sororities, etc in public

elementary or secondary schools



Can a school district refuse torecognize a controversial

student organization, such as agay student rights club, if thestudents obtain a facultysponsor and meet other criteriafor school recognition?

In 2002, a federal court dismissed a case(Caudillo v. Lubbock ISD) when students werenot allowed by the school board to begin an

organization called GAP Youth (Gay andProud Youth Group).

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