By Attorney Thomas B. Mooney, Neag School of Education, University of Connecticut

The “Legal Question of the Week” is a regular feature of the CAS Weekly NewsBlast. We invite readers to submit short,
law-related questions of practical concern to school administrators. Each week, we will select a question and publish an
answer. While these answers cannot be considered formal legal advice, they may be of help to you and your colleagues.
We may edit your questions, and we will not identify the authors.

Please submit your questions to: legalmailbagcasciacorg. __________________________________________________________________________________________________________________

Dear Legal Mailbag:

The chairperson of the Social Studies Department was always a sour man. In the past, we have all shrugged our shoulders, figuring that he was a harmless scold. But lately I have been receiving complaints from students, who say that he spends time in class almost every day making fun of me and my administrative directives. I don’t want things to get out of hand, so I went to have a friendly chat with him about these complaints. Unfortunately, he was as grumpy as ever, perhaps even more so.

As soon as I started to review my concerns, he interrupted me. “Obviously,” he started in on me, “you haven’t heard about the First Amendment. Well . . . let me enlighten you.” My blood was boiling as he lectured me about academic freedom and his right of free speech, but he did have me a little concerned. Do I really have to put up with his insubordinate sniping in class every day? I certainly don’t want to find myself in court, but really . . . . .

Signed,
My Ears are Red

Dear Red:

Your cranky department chairperson has an imperfect understanding of the First Amendment. To be sure, way back in 1968, the United States Supreme Court ruled that teachers have First Amendment rights. However, in the intervening years, the Court has refined the scope of teacher (and other public employee) free speech rights. You will be happy to know that the teacher has no right to use valuable class time to malign you and your directives.

In general, teachers have a right of free speech when they speak on matters of public concern, and conversely they have no free speech protections (vis-à-vis their employers) when they speak on matters of personal grievance. Even the right to speak out on matters of public concern, however, is subject to limits. The First Amendment does not protect such speech if the disruption it causes outweighs its importance.

Here, the speech in question is occurring in the classroom. As such, the speech has no First Amendment protection at all. In 2006, the United States Supreme Court decided in Garcetti v. Ceballos that the First Amendment does not apply to speech that is made “pursuant to duty,” i.e. as part of one’s job responsibilities. When the Department Chair teaches a class, he is doing his job, and you have the right to supervise him in how he does so. If you think that he should stick to the curriculum and lay off the snarky comments about you, you are free to tell him so.