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Teachers and the First Amendment

By Len Rieser on Feb 21, 2011 01:32 PM

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?  

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Comments (12)

Submitted by Teacher in the trenches (not verified) on February 21, 2011 6:36 pm

I seems like you are trying to apply common sense to a school district without the concept. Is it common sense to increase spending as your income is removed? Does it make sense to buy major new programs when the short fall is in the millions of dollars? Does it make sense for a teacher to be transferred literally school days before the most important testing begins?
Good luck with this strategy.

Submitted by Sam (not verified) on February 21, 2011 9:55 pm


Thank you for bringing some first amendment rights perspective to this controversy surrounding Ms. Hope Moffet’s case. I think her case provides teachable moments for all parties concerned (students, teachers and district officials) Let’s hope the lesson we learn turn out to be I the best interests of students.

Submitted by Audax (not verified) on February 21, 2011 9:09 pm

She went to two public meetings and asked questions of the District. Anyone could have, and many did, ask similar questions but they were not employees of the District. You forget that other than free speech, she is also entitled to petition the government which is also mentioned in the First Amendment. She did so in a District-run community meeting at the school as well as during the most recent SRC meeting. As someone who pays taxes in this city, and who lives here, she is entitled to question policies that she disagrees with.

Submitted by Acourt (not verified) on February 21, 2011 9:44 pm

As we witness the process of peaceful protest under attack in the middle east, I wonder that we have to bring this up at all. Our soldiers are fighting around the world to bring democratic ideals like the right to peaceful protest to other countries and we cannot even uphold the ideal in our own country. I am appalled at this school districts unethical behavior in trying to silence the legit voices of its 'constituents', its students.

Submitted by Philly HS teacher (not verified) on February 22, 2011 4:11 am

Thank you for the post. When I teach U.S. history/government, interpretations of the Constitution are always messy and there are "fine lines" between what is sanctioned and what is challenged. The interpretations also are not static.

That said, I do not understand why a teacher can't express his/her opinion at public forums and introduce controversial topics into the curriculum, even when those topics "hit home." The topics that "hit home" are often when engaged students because they seem relevant. For example, the National Constitution Center is hosting "An Exchange" between high school students on "When should increased security measures outweigh your privacy rights in school?" This is timely for Philadelphia students in particular since in most schools our students must enter through scanners. If my students participate and challenge school security measures, will I be sent to the "rubber room" too?

The reaction to Audenreid is an example of AD1 / Wayman and her assistant, Spaglenberg (a TFA alum from Rhodes), using excessive "fire power" to put sparks of student engagement and genuine learning. This tactic isn't new but Ackerman should take ownership of the mistake and honestly open up the debate on what is happening to neighborhood high schools. Based on Ackerman and Wayman's previous conduct, I'm not holding my breath but I believe in miracles...

Submitted by Anonymous (not verified) on February 22, 2011 9:02 am

The District put themselves in a no-win situation here. They will have to either back down, and pretend that they did an "investigation" and found nothing, and put Hope back in the classroom. Or press the issue and probably lose, if Hope chooses to fight. I'm not a lawyer, but I am somewhat familiar with this issue and I understand the standard basically exactly as Len described it above: matters of public concern. This is pretty obviously a matter of public concern, and the District would have a fairly difficult time arguing that what they have done to Hope is anything other than discipline for speaking out. It's not even a difficult case since Hope seems to have an impeccable personnel record.

Submitted by Yes! (not verified) on February 22, 2011 11:56 am

The will be a citywide RALLY this Friday at 4PM. We will NOT be intimidated.

Submitted by Taxpayer (not verified) on February 24, 2011 4:57 pm

Where do we sign up for the taxpayer counter rally? We've had enough of these public union thugs!

Submitted by Anonymous (not verified) on February 24, 2011 4:56 pm

It's called the Tea Party. Don't forget your gun and sign comparing Obama to Hitler.

Submitted by Taxpayer (not verified) on February 24, 2011 4:25 pm

Cool. We could almost use the same signs. I saw in Wisconsin the union thugs were carrying pictures of Walker with Hitler mustaches on them. Anyway, as we go forward, there will be much turmoil. But make no mistake, this is the taxpayers vs. the public unions now, and there are many more of us.

Submitted by Anonymous (not verified) on February 22, 2011 4:41 pm

The American Civil Liberties Union is investigating claims of intimidation and retaliation against teachers and students because of their questions or comments about District policies. At this point we are simply collecting information and all reports will be kept confidential. If you are willing to share information with us about something that has happened to you or that you have witnessed, please send an email to and give us a number and a time when one of our lawyers can call and get the details from you. All reports will be kept strictly confidential unless you give us permission to disclose it.

Submitted by Tammy (not verified) on February 22, 2011 9:44 pm

Proud of you Hope... Hang in there!

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