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.


Can a school district constitutionally terminate teachers for ineffective performance based on a secret value-added algorithm?

No. The Houston Federation of Teachers brought an action against the Houston Independent School District based on the claim that a teacher evaluation system based, at least partly on student exam scores, violated disciplined teachers’ procedural due process rights under the 14th Amendment.

Student exam scores were subjected to a “secret” algorithm to determine whether students’ performance was increased. This algorithm was the proprietary property of a private computer firm. Affected teachers had no right to view or test the computer code making review of their scores nearly impossible.

While the plaintiff challenged the evaluation system on both procedural and substantive due process claims the Federal District Court in the Southern District of Texas held that the refusal to permit teachers to fully review their scores might deprive them of a property right in violation of their procedural due process rights and denied the District’s motion for summary judgment.

The Court held, “On this summary judgment record, HISD teachers have no meaningful way to ensure correct calculation of their EV AAS scores, and as a result are unfairly subject to mistaken deprivation of constitutionally protected property interests in their jobs. HISD is not entitled to summary judgment on this procedural due process claim.”

Houston Federation of Teachers, Local 2415, et al., Plaintiffs v. Houston Independent School District, Defendant, United States District Court, Southern District of Texas, Civil Action H-14-1189 (May 4, 2017)

Can a tenured teacher who retires while facing 3020-a charges get his teaching license restored?

No. Wayne Crawford Jefferson, a tenured NYC teacher, retired while charges were pending against him. Pursuant to Chancellor’s Regulation C-205 resigning or retiring while charges are pending causes the automatic termination of a teacher’s NYC teaching license. Jefferson sought to get his license reinstated and brought an Article 78 proceeding in Queens Supreme Court and appealed to the Appellate Division, Second Department. Both courts rejected his arguments that he was deprived of his constitutional rights and that he was unaware of the regulation.

Jefferson’s state certification was not addressed in these proceedings. The loss of a NYC teaching license does not automatically revoke state teaching privileges. A separate proceeding is required to remove State teaching privileges.

Matter of Jefferson v New York City Bd. of Educ.
2017 NY Slip Op 00166
Decided on January 11, 2017
Appellate Division, Second Department

Are teachers who park their cars in legal spots near their school as part of informational picketing and thereby cause students to be dropped off in the street engaged in protected 1st Amendment activity?

No. We have visited this case last year when the Appellate Division reversed the ruling of the Supreme Court in a case coming from the East Meadow school district. As you may recall members of the East Meadow Teachers Association decided to form an informational picket line by parking their cars in legal spots near Woodland Middle School in such a way that pedestrians could only pass to the school’s sidewalk through curb cuts. The parking area was not restricted but had been customarily used as a drop-off area for parents bringing their children to school. The protest caused traffic congestion and students were dropped off by their parents in the middle of the street.

Writing for the majority of the Court of Appeals Judge Abdus-Salaam found that while the teachers’ First Amendment rights were implicated, safety concerns for the students outweighed these rights and permitted the arbitrators to discipline the teachers pursuant to 3020-a.

A strong dissent, written by Judge Rivera, argued that the majority engaged in improper fact finding an improperly weighed the alleged disruption and safety concerns.

In the Matter of Richard Santer, Respondent, v Board of Education of East Meadow Union Free School District, Appellant. In the Matter of Barbara Lucia, Respondent, v Board of Education of East Meadow Union Free School District, Appellant, No. 51, No. 52, COURT OF APPEALS OF NEW YORK, 2014 N.Y. LEXIS 997; 2014 NY Slip Op 3189; 199, L.R.R.M. 3291, May 6, 2014

In depth: Are off-duty social network communications by teachers protected by the First Amendment?

Yes, but limited. It was inevitable. As our means of communication expanded and our ability to communicate with ever increasing numbers of recipients so have school officials and the Courts have had to deal with both the content and mode of communication. Additionally as the conduct sought to regulated stems from teacher off-duty behavior, school districts have increasing disciplined teachers for communications they have made far from the classroom.


Teachers have historically been subject to strict rules about in school behavior and while Tinker’s protection has applied to teachers’ free speech rights, for the most part, out of school speech was treated much differently.

We first start with Pickering v. Board in 1968. Marvin Pickering, a teacher, wrote a letter to the local newspaper in which he criticized what he characterized as the Board of Education’s large allocation of funds to the high school’s athletic programs, and the Board and Superintendent’s failure to inform taxpayers why they wanted to raise taxes. The Supreme Court, with Justice Marshall writing for the majority, decided that Pickering had commented on a matter of public concern, but focused much of its analysis on the truth or falsity of Pickering’s communication. What exactly would constitute a true “matter of public concern” was incompletely defined. However, the Court made clear that in addition to the topic of Pickering’s speech, an important point in his favor was that his letter to the newspaper was not directed toward anyone with whom he came into daily working contact, nor did the content of the letter in any way impair Pickering’s close working relationship with his immediate supervisor. In addition, the Court also noted that Pickering’s letter did not cause controversy in the community.

The Pickering test was further defined in a subsequent decision, Mt. Healthy City School Dist. Bd. of Educ. v. Doyle. Unlike Pickering, Doyle involved a teacher discharge for alleged protected speech.

Justice Rehnquist writing for the majority considered the facts surrounding the dismissal of Fred Doyle, an untenured teacher in the Mt. Healthy City School District. Stating that the issue of tenure becomes irrelevant when constitutional violations are alleged, and that in constitutional issues untenured teachers are protected to the same extent as tenured teachers,  the court nevertheless vacated the decisions of the lower courts that called for Doyle’s reinstatement and remanded the controversy.

Doyle had spoke about a new dress code for teachers on a local radio station. A month later the district superintendent recommended to the Board that Doyle not be rehired, and the Board concurred, noting Doyle’s “lack of tact in handling professional matters” and his report to the radio station, as well specifically mentioning an obscene gesture Doyle had made to two female students.

The Court refused to reverse the Board’s decision not to rehire Doyle. Stating that even if protected conduct played a “substantial’ or otherwise” part in a teacher’s dismissal, if the same decision would have been reached notwithstanding that conduct, the decision not to rehire was justified. If that were not the case, the majority reasoned, an employee’s act of engaging in protected conduct would prevent the employer from assessing his day–to–day professional conduct, and place the employee in a better position than he would have otherwise been.

In the Mt. Healthy decision the Court added a two–step process to the Pickering balancing test. First, if an employer dismisses or fails to rehire an employee because of his expressive conduct, the employee must show that constitutionally protected conduct was a substantial or motivating factor in the negative employment decision, and second, the burden then falls on the employer to show that it would have made the same decision even in the absence of the protected conduct.

The modified Pickering two step test went under close examination in Connick v. Myers where a 5-4 split upheld the involuntary transfer of an assistant district attorney’s dissemination of a questionnaire her supervisors found disruptive to not be a matter of public concern.

In another 5-4 decision the Supreme Court announced in Garcetti v. Ceballos that an Assistant District Attorney who wrote a memo to his supervisors that there were legal problems with a prosecution and then he testified on behalf of the defense faced retaliatory employment actions including reassignment and denial of promotion was denied redress after the lower court applied the matter of public concern and modified Pickering test.

The Garcetti court wrote, “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

Online Speech

In the seven years since Garcetti lower courts have had to grapple with an increasing number off duty, online speech of public employees, especially teachers. In Spanierman v. Hughes  a Connecticut high school English teacher who posted a MySpace profile indicating he was “Mr. Spiderman” and communicated with students was ultimately terminated. Despite his claims of constitutionally protected speech the court upheld the School District’s decision finding that the teacher’s actions were potentially disruptive.

A middle school dean in San Diego posted an advertisement on Craigslist for “men seeking men” for sexual purposes. The ad showed photos of the dean and graphic descriptions of his sexual preferences. After the San Diego Unified School District dismissed him he won reinstatement through the California Commission on Professional Competence. His win was short-lived, however, when the District sought and won the right to dismiss him in Court. In San Diego Unified School Dist. v. Commission on Professional Competence the Court found that the pornographic nature of the ad interfered with his ability to serve as a role model in school.

Finally a 15 year unblemished record helped to prevent a Brooklyn elementary school teacher from being dismissed for posting derogatory comments about her students on Facebook shortly after a student drowned on a school trip. While the arbitrator dismissed the teacher from employment an appeal to both New York’s Supreme Court and the Appellate Division in Rubino v. City of New York resulted in the teacher being able to keep her job with a fine. The court, using the Pell standard, found that the teacher’s conduct did not warrant dismissal and that this was a single lapse of judgment.

It is unclear where this litigation is headed. Clearly some courts are willing to deal with the matter using free speech analysis while others will not. In either case there is little doubt that the increased amount and availability of social media will cause additional cases to be brought.