Is a teacher’s complaint about cheating on the Regents examination protected by the free speech provisions of the First Amendment?

No. An Earth Science teacher observed that a fellow teacher’s students achieved perfect score on the lab portions of the Earth Science Regents and suspected cheating. He complained to his immediate supervisors and when they failed to act he notified the State about the suspected cheating.

After this report the teacher claims he was rated unsatisfactory and was removed as chairman of the the Math and Science Department in his school.

He commenced an action in Federal District Court that he was retaliated for making the complaint and that the complaint was speech protected by the First Amendment. The District Court dismissed his First Amendment claimed and he appealed to the Second Circuit.

The Second Circuit affirmed the District Court’s decision finding, “Only certain types of speech made by government employees are protected by the First Amendment” and that since the complaint was made pursuant to his duties as a teacher he was acting as an employee, not as a citizen, and was thus not protected by the First Amendment.

The Court went further, chilling even citizen speech, by holding, “Even if private citizens can complain to state educational authorities in the same way [the teacher] did, it would not change our conclusion that [the teacher’s] speech was made pursuant to his official duties, and therefore unprotected by the First Amendment.”

PETER COHN, Plaintiff-Appellant, v. THE DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, THE BOARD OF EDUCATION OF THE CITY OF NEW YORK, ERIC STRAUSS, individually, and JAMES JOHNSON, individually, Defendants-Appellees. No. 17-517-cv. United States Court of Appeals, Second Circuit. September 20, 2017.


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