William Kritsonis, School Law, Ch 6 Pickering, Other Cases

1
Chapter 6

• PEDG 5344
• William Allan Kritsonis, PhD

2
Pickering v. Board of Education

• Pickering, a teacher, was dismissed for writing
  and publishing in a newspaper a letter
  criticizing the Boards allocation of school
  funds between educational and athletic programs
  and the Boards and superintendents methods of
  informing, or preventing the informing of, the
  school districts taxpayers of the real reasons
  why additional tax revenues were being sought for
  the schools. The Board, as well as the lower
  courts, found that the letter, which contained
  false statements, was detrimental to the
  interests of the school system and that the
  interest of the school should take precedence
  over the teachers claim to freedom of
  expression.

3
Pickering v. Board of Education

• The US Supreme Court ruled unanimously that the
  school bard was wrong in firing the teacher.
  Since the statements in the letter were not aimed
  at any person with whom the teacher would come in
  contact in carrying out his duties, and the
  falsehoods were not carelessly made nor did they
  impede school operations, the Supreme Court
  concluded that the teacher should not have been
  dismissed.

4
Pickering v. Board of Education

• Pickering is an important case because it
  recognizes that educators, and by implication,
  all public employees do have a right to freedom
  of expression as citizens in the community.
• It also conveys to administrators the burden of
  documentation they 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 the teachers
  performance is impaired, or that the
  superior-subordinate relationship is undermined,
  then sanctions, including dismissal, might
  appropriately be brought against the employee.
• Pickering recognized that educators have a
  substantial right to freedom of expression as
  citizens of the community and conveys to
  administrators the burden of documentation in
  order to take adverse action against the
  employee.

5
Nieto v. San Perlita ISD

• In 1990, Frank Nieto, a school maintenance
  supervisor, was discharged after he complained
  that the schools basketball coach was abusing
  students. Nieto had conducted his own
  investigation, which included puling students out
  of class for questioning. Teachers complained
  that his actions were highly disruptive.
• The court held that Nietos speech was of public
  concern, but the public interest was outweighed
  by the districts interest in promoting the
  public services it performs.

6
Tinker v. Des Moines School District

• Students wore armbands in opposition of the
  Vietnam war and were suspended their parents
  sued citing infringement of their childrens
  right to free speech.
• The US Supreme Court agreed with the students
  noting that school officials do not possess
  absolute authority over their students. The
  court did not adopt an anything goes viewpoint
  it was emphasized 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
  by the constitutional guarantee of freedom of
  speech. Since the wearing of the armbands
  generated no significant disturbance within the
  school, the court decided for the students.

7
Alaniz v. San Isidro

• The 5th Circuit upheld a lower court ruling in
  favor of the school districts deputy tax
  assessor-collector, who was fired after an
  opposition political party won control of the
  board. Alaniz had actively supported the
  policies and candidates of the incumbent party,
  headed by her brother-in-law. She maintained she
  would 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 anguish and emotional distress and ordered
  her reinstated to her position.

8
Whalen V. Rocksprings ISD

• A 7th grade science teacher who became involved
  in an extended question-and-answer session with
  her class that encompassed matters related to sex
  education. In the course of responding to
  questions about AIDS, contraceptives, and the
  development of sperm, the teacher engaged in what
  school officials considered unnecessarily graphic
  description harmful to the emotional well-being
  of students of that age and grade level in the
  largely rural community. For example, with
  regard to learning more about sperm, the teacher
  advised male students in her class to go home,
  lock the bathroom door, and masturbate. The
  teacher was dismissed mid-year following a due
  process hearing, a dismissal the commissioner of
  education upheld.

9
Whalen V. Rocksprings ISD

• The commissioner stated that for a teacher to
  show that his or her comments were protected by
  academic freedom, the teacher has to show that
  the comments were reasonable relevant to the
  subject matter of the class, had a demonstrated
  educational purpose, and were not proscribed by a
  school regulation.
• While teacher discussion rights in the
  classroomas contrasted with the right to control
  teaching methodologyare protected under the
  weight of judicial authority, they can be abused
  and lose their protection.

10
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

11
Expression Within the School

• In 1979, the US Supreme court ruled that the 1st
  and 14th 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 since
  subordinate-superior relations are particularly
  sensitive, the content of what is said, as well
  as the time, place, and manner in which it is
  said, can be taken into account in deciding what
  is and is not constitutionally protected.

12
Expression Within the School

• In 1983 (Perry Education Assn v. Perry Local
  Educator Assn) the Court decided that school
  mailboxes are not automatically public forums
  available to teachers, the associations, and
  others to disseminate information.

13
Expression Within the School

• Administrators must be sensitive to employee 1st
  amendment rights when making decisions about
  school mailboxes, Web sites, and similar types of
  communication systems.

14
Expression Within the School

• Connick v. Myers (1983)
• an assistant DA was fired for distributing
  questionnaires that dealt with internal working
  conditions the question involved the issue of
  whether employee expression concerning on-the-job
  complaints 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 terms of school, an administrator
  must determine whether the expression is
  protected by the 1st amendmentif the expression
  does not deal with community interests, then in
  general it is not protected.

15
Expression Within the School

• An employees speech is protected when the
  employee speaks as a citizen on matters of public
  concern but not when he or she speaks on matters
  only of personal interest.

16
Expression Within the School

• In 1995, the 5th circuit identified a 3-part test
  for determining when particular speech by a
  public employee is protected
• (1) the speech must have involved a matter of
  public concern
• (2) the public employees interest in commenting
  on matters of public concern must outweigh the
  employers interest in promoting efficiency
• (3) the employees speech must have motivated the
  decision to discharge the employee

17
Texas Whistleblower Act

• In 1983, the legislature passed a law known as
  The Whistleblower Act prohibiting a
  governmental body from retaliating against an
  employee who reports a violation of law to the
  appropriate law enforcement authority if the
  report is made in good faith.
• Each governmental body is required to post a sign
  in a prominent place informing employees of their
  rights under this act. A violation of school
  policy 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 and
  attorneys 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 the
  non-prevailing employees legal fees.
• The employee has the burden of proving that the
  adverse personnel action was 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 the
  employees reporting.

18
Texas Whistleblower Act

• In Castleberry ISD v. Doe, the court made clear
  that the 90 day timeline 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 reports in good faith an
  alleged violation of the law.
• The Texas Supreme Court has defined good faith
  to mean an honest belief that the conduct is a
  violation of the law, a belief that is reasonable
  in light of the employees training and
  experience.
• Example of test question Mr. Smith brought
  into class an unapproved book. Mrs. Farmer
  disapproved of the book and turned in the
  teacher. What could be the outcome? According
  to the Texas Whistleblower Act

19
Academic Freedom

• Involves four sometimes clashing interests
• (1) interests of the state and local school board
  in seeing that the curriculum reflects the
  collective will of the community
• (2) the interest of the student in having access
  to knowledge and ideas
• (3) the interest of the teacher as a professional
  in controlling class discussions choosing
  instructional methodologies
• (4) the interest of parents in controlling their
  childrens education.

20
Academic Freedom

• Epperson v. Arkansas- Supreme Court struck down
  an 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 to engage 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 and is not
  protected by the 1st amendment.
• The 5th Circuit ruled that academic freedom does
  not include the right to award a grade
• (Hillis v. SFASU)

21
Academic Freedom

• Given the tenuous nature of the teachers 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 ability to
  work with school administrators and colleagues.
• Before teachers make any determination for
  themselves about what they can or cannot do in
  the classroom, they should endeavor to ascertain
  what school policy is with respect to curriculum
  practices and the role of the teacher.
• While teachers to have a constitutional right in
  Texas by virtue of the 5th circuit decision in
  Kingsville to engage in classroom discussion, the
  right 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 is
  always best to check with board policy and
  administrative directives before proceeding.

22
Shelton v. Tucker (1960)

• US Supreme Court struck down an Arkansas statute
  requiring teachers to file affidavits listing
  their membership in organizations for the
  previous 5 years.

23
Ch 617 of the TX government code

• recognizes that An individual may not be denied
  public employment because of the individuals
  membership or non-membership in a labor
  organization.

24
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.

25
TEC 21.408

• provides professional employees have a right to
  join or not to join any professional organization
  or association.

26
Hazelwood School District v. Kuhlmeier (1988)-

• Concerning school sponsored student publications
• The Supreme Court ruled that school
  administrators have broad censorship powers over
  student newspapers produced under the auspices 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 student newspaper
  into a public forum where controversial views can
  be freely 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.

27
Clark v. Dallas ISD

• Concerning non-school sponsored publications
• Students wanted to meet outside the cafeteria to
  pray, read the bible, and distribute religious
  materials to students as they exited school
  buses. The school rejected the plan based on 3
  premises but a federal district court rejected
  all 3 premises based on Tinker.

28
Clark v. Dallas ISD

• Most TX schools have adopted a prior review
  policy with 5 components(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 the right
  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 applied to withstand constitutional
  scrutiny. School officials also have the right
  to determine the time, place, and manner of
  distribution of non-school sponsored materials
  (Shanley v. Northeast ISD).

29
Concerning Student Freedom of Association

• High school students have a right to assemble
  peacefully for expressive purposes in the
  vicinity of the public school, and students at
  the collegiate level have a relatively unfettered
  right to assemble and to associate

30
TEC 37.105

• Students at the secondary level also have a right
  to come together for expressive purposes 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 to non-students.

31
Does the right to associate restrict school
officials in deciding which student groups may or
may not function as school-recognized
organizations?

• It depends on the type of group and the
  legitimacy of the schools reasons in denying
  status as a campus organization to a student
  group.

32
TEC 37.121

• It is a crime for students or non-students to be
  a member of or pledge membership to fraternities,
  sororities, etc in public elementary or secondary
  schools

33
Can a school district refuse to recognize a
controversial student organization, such as a gay
student rights club, if the students obtain a
faculty sponsor and meet other criteria for
school recognition?

• In 2002, a federal court dismissed a case
  (Caudillo v. Lubbock ISD) when students were not
  allowed by the school board to begin an
  organization called GAP Youth (Gay and Proud
  Youth Group).