This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.
I don’t know exactly what Ms. Moffett – the Audenried teacher whose disciplinary transfer Ben Herold described in two recent stories – said or did. Plus, I’m not an employment lawyer. So I can’t really speak to her legal situation.
I do know, though, that public employees, such as teachers, have First Amendment rights – even if, as in many areas, those rights are not absolute.
One of a number of Supreme Court cases on the subject is a 1983 decision, Connick v. Myers Ms. Myers, an assistant district attorney, objected to her boss’s decision to transfer her from one branch of the office to another, and countered by passing out a questionnaire “soliciting the views of her fellow staff members concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns.” Ms. Myers was fired for distributing the questionnaire.
Ms. Myers claimed that her acts were protected by the First Amendment, which has been interpreted to prohibit government agencies at all levels (not just Congress) from "abridging the freedom of speech." But the Court upheld her dismissal, on the ground (I’m oversimplifying) that the questionnaire was mostly not about matters of public concern, but instead focused on an internal office dispute. For that reason, the Court said, the First Amendment interests at stake were relatively slight, and were easily outweighed by the interests of her employer in maintaining order in the office.
But the Court also indicated that employers should be held to a tougher standard when speech does, in fact, address matters of public concern.
Which is why (in one of many cases on this subject) a lower federal court in Pennsylvania recently allowed a case to go forward in which the Pennsylvania Department of Education disciplined the superintendent of the Scranton State School for the Deaf, a state facility.
In that 2010 case, Hara v. PA Department of Education, the superintendent had written a letter to a newspaper criticizing the proposed closing of the school. The state promptly assigned her to a different job. But the letter, the court held, addressed a matter of public importance; and given that, the state’s concerns that the letter might impair order and “harmony among co-workers” were not significant enough to justify Ms. Hara’s transfer.
To be sure, I’ve only scratched the surface of a complex area. Clearly, though, there are legal issues when public employees are disciplined for expressing their opinions, especially on matters of public significance (and probably everyone can agree, at least, that how to improve schools fits that bill).
Of course, there are also common-sense issues in such situations – such as whether teachers (or students, or anyone) should be discouraged from, much less disciplined for, talking about how to improve their schools. It seems to me that the common-sense answer is no.
So here’s my suggestion: The District should find a way to make clear to its teachers, students, and parents that their explorations of, and expressions of opinion on, these issues are not only protected by the Constitution, but welcomed. With all of the other stuff coming at us right now, wouldn’t it make sense to avoid a First Amendment controversy?