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Free Speech Employee Speech

Expression of Viewpoint

If a teacher disagrees with a policy enunciated by the principal, should that teacher be able to discuss their disagreement with the policy in an e-mail message to site council members?

The basic standard for determining whether a district can govern employee speech was set forth is Connick v. Meyers, 461 U.S. 138 (1983). In this case, which involved a non-school-sponsored forum for speech, the Court established a 2-step process for determining whether employee speech is entitled to constitutional protection. First, it must be determined whether the speech pertains to a "matter of public concern." Second, if it is a matter of public concern, it must be determined that the interests of the teacher in speaking as a citizen ought to out-weigh the state's interest in promoting efficiency in the delivery of educational services in the schools. Id. at 142 - 146.

Unfortunately, this standard is rather difficult to apply. Not surprisingly, courts have been sharply divided over what constitutes a public concern in the context of speech by teachers and other district employees. Translating the Connick standard into a clearly understandable policy for employees presents even more of a challenge.

An additional factor that must be considered is the potential impact of Hazelwood. While the Hazelwood case did not involve employee speech, it did involve a school-sponsored vehicle for the delivery of speech and, as noted above the court stated:

"If the facilities have instead been reserved for other intended purposes, 'communication or otherwise,' then no public forum has been created, and school officials may impose reasonable restrictions of the speech of students, teachers, and other members of the school community. " Id. at 267 (citations omitted, emphasis added).

Employee speech through a district network will bear the imprimatur of district, because of the domain name which will be part of the employee's address. Clearly, the district should have the right to impose the same educationally-based restrictions on employee speech as it does for its students. But does the fact that the district has provided the vehicle for expression and employee speech will reflect on the district entitle the district to also control the content of employee speech?

An argument could be made that when a district employee is communicating through a district-provided system, the district has a legitimate right to govern the content of the employee's speech. This is basically the same situation that any other employee of a business who is communicating through their employer's system would face.

On the other hand, the courts have tended to grant public employees greater free speech rights than private sector employees. We want our public employees to speak out on matters of public concern because this will assist the public in gaining a better understanding of issues related to government activities. If a district believes that our society and our educational system will be benefited by a robust exchange of ideas and opinions, the district will likely want to support their employee's right to use the district system to express their opinions, even if the district may disagree with the opinions expressed.

What matters most is that the expression of opinion is done in a manner that works effectively to address issues, rather than to cause harm. Districts can best address this issue through awareness and professional development. The district's e-mail system will make more public those discussions which, before now, only occurred in the staff lounge. Requiring district employees to use a signature that identifies their position within the district will reinforce the importance of speaking responsibly. Many individuals, particularly those not in leadership positions, have not had the opportunity to learn techniques of effective communication particularly when dealing with potentially controversial issues. This will be an essential skill for educators as we shift more to technology-supported site-based management. This skill that can be enhanced through professional development in effective communication.

Optional Perspectives:

  • District has legitimate right to control content (viewpoints) of employee speech.

  • Society and district will be benefited by a robust exchange of ideas and opinions and employee expression of their personal view-point is essential to school reform.

Recommendations

  • Make it clear that employees are writing in their professional capacity should guide their writing accordingly.

  • Require the use of e-mail signature stating name and district position.

  • Establish the standard that writing in professional capacity may include expression of personal professional viewpoint, even if that viewpoint differs from district position. However, the viewpoint must be expressed in a professional manner.

  • Provide staff development in effective communication especially related to communicating about controversial issues.

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