Legal Brief                                                         Page 10


The Line on Public Employee

Free Speech Rights



Wayne Young

Ten days before the high school’s first-ever football playoff game, the team’s quarterback was caught cheating on an algebra test. Under the school district’s discipline code, the student was banned from extracurricular activities for 30 days. The ensuing uproar in the small community culminated in a large public demonstration in support of allowing the student to play in the big game.

At the rally, which was front-page news in the community, the student’s father urged the crowd to “bombard the superintendent and board members with calls and e-mails until this unjust decision is reversed.” The crowd obliged, and the resulting deluge crashed the small district’s computers and overwhelmed its support staff.

Even a novice superintendent can recognize the scenario above is fraught with peril, no matter the outcome. But consider a factor that makes this situation even more difficult: The parent urging insurrection was also the district’s longtime middle school principal. The superintendent now has two equally unpleasant (and risky!) decisions to make — one involving the student and the other involving the principal/parent.

Public vs. Private
Public employees share the same basic free speech protections under the First Amendment as do all other people. But historically, federal courts have engaged in a balancing act when considering issues of public employee free speech, allowing some limitations when the speech is viewed as more personal than public in nature or when it negatively affects the function of the public employer.

The threshold criteria considered by the courts in allowing restrictions on public employee free speech is whether the speech addresses a matter of public concern or simply reflects personal grievances of the employee. The more directly the speech touches on a matter of broad importance to the public, the more likely it will be to receive First Amendment protection.

A second element of the public concern criteria is whether the employee’s comments are made within the context of his or her role as an employee or whether they are the statements of a citizen. The more the speech reflects the views of a citizen, the more likely the First Amendment applies. For example, a school district employee who writes a letter to the editor complaining about school district budget cuts is likely to enjoy protected status, whereas a teacher railing at a school board meeting about a lengthened workday would probably not be afforded the same protection.

However, whether public remarks touch on a matter of public concern is not the sole criteria used to examine the free speech rights of public employees. The second major test is whether the speech interferes with the government agency’s ability to carry out its business effectively. Even if the speech touches on a matter of public concern, it may not be protected by the First Amendment if it impairs the functioning of the governmental entity or disrupts or damages relationships, harmony or confidentiality within the workplace. The burden is on the employee to show his or her free speech interests outweigh the government’s interests in carrying out its duties in an efficient manner.

Proceeding Cautiously
While superintendents always must exercise appropriate restraint and proportionality when disciplining employees, these aspects become especially critical in the context of discipline related to employee speech. The fact patterns in these situations often involve emotional, highly charged and divisive issues. In addition, state laws or constitutional provisions, board of education policies or even bargained contract language may expand the protections employees enjoy beyond those afforded by the federal constitution.

A measured response based on sound legal advice and thorough consideration of the facts and applicable law must be the first priority. Knee-jerk reactions based on anger or personal feelings can only make an already difficult situation more problematic, or even untenable, for the superintendent.

Wayne Young is executive director and general counsel for the Kentucky Association of School Administrators. His e-mail is


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