Expression of Student Rights, William Allan Kritsonis, PhD

8/8/2019 Expression of Student Rights, William Allan Kritsonis, PhD

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Expression and AssociationalRights

William Allan Kritsonis, PhD



Educator Rights of Expression

The Constitution protects all persons, regardless of profession.Therefore, ³[a]ny inhibition of freedom of thought, and of action

upon thought in the case of teachers brings the safeguards of [the First Amendment] vividly into operation. Nevertheless,because teachers are not only private citizens, but also agentsof the state, courts have held that ³the rights of teachers inpublic schools are not automatically coextensive with the rights

of adults in other settings.´ The following is an overview of howthe courts have weighed these competing interests indetermining the rights of public school teachers.



Expression outside the school

The extent of a teacher¶s First Amendment freedoms depends largely upon thecontent of the expression as well as the context in which the teacher chooses to exercisethose freedoms. The Supreme Court has spoken clearly in defense of the First

Amendment rights of public school teachers in their capacities as private citizens.

Pickering Board of Education (1986): a teacher was fired because he sent a local newspaper a letter he had written criticizing the Board of Education concerning past efforts to raiserevenue for schools. The Supreme Court held that ³a teacher¶s exercise of his right tospeak on issues of public importance may not furnish the basis for his dismissal frompublic employment.´ The Court reasoned that because the letter concerned ³a matter of public interest´ and there was no evidence that it interfered with (1) his or her ability to

perform classroom duties or (2) the regular operation of the school, the teacher¶s rightswere no different than those of any other member of the general public. Thus, the teacher could not be dismissed for the exercise of his freedom of speech.



Expression outside the school

The U. S. Supreme Court extended the Pickering principle to

the following cases: City of Madison v. Wisconsin Employment Relations Commission

(1976): The Court upheld the teachers rights to speak out at a schoolboard meeting about employment matters.

Nieto v. San Perlita ISD (1990): A school maintenance supervisor was discharged after he complained that the school¶s basketball coach

was abusing students. Nieto conducted his own investigation pullingstudents out of class for questioning. Teachers complained aboutdisruptions. The court held that although Nieto¶s speech was of publicconcern, the district¶s interest in ³promoting the public services itperforms´ outweighed the public interest.



Pickering principle

If an employee occupies a policy-making or confidential position then the

Pickering principle is limited. The Pickering principle did not apply to the

following cases:

Kinsey v. Salado ISD (1992): Nolan Kinsey, Superintendent of Salado ISD supportedcandidates that were replaced by new board members. This support affected hisrelationship with the newly elected board which eventually led to his removal. After a longbattle the Pickering test was denied because of the close working relationship he had withthe board.

Mt. Healthy City School District Board of Education v. Doyle (1977): A marginallyqualified teacher on a probationary contract made comments critical of the school over alocal radio station. As a result, he was terminated. The teacher had to prove that he wasterminated because of retaliatory reasons. This was evident in a memo the superintendentwrote him listing the negative comments made as part of the decision for termination. After the burden was sustained the school district had the opportunity prove other reasons for termination. Since the district¶s burden was sustained and substantiated the terminationwas upheld in 1982.



Mt. Healthy test

The legacy of Pickering is a balancing test. The three-step Mt.

Healthy test was a later elaboration on the Pickering balance:1) Is the speech protected? 2) Did it play a substantial part inthe decision to terminate the employee? 3) If so, was it thedeciding factor? The test was used in the following cases:

Johnson v. Longview ISD (1989)

North Mississippi Communication, Inc. v. Jones (1996)

Brantley v. Surles (1985)



School districts and public information

School districts are limited in their ability to file lawsuitsagainst those who make critical comments about the

district and its employees. Port Arthur ISD v Klein & Associates Political Relation (2002): Port Arthur

School District sued a political relations firm for defamation. The Texas appealscourt rejected the claim by stating The Port Arthur district¶s argumentundermines the basic principle of free expression.

Peavy v. New Times, Inc. (1997): A Dallas newspaper was not held liable for violating the federal wiretapping statute when it published transcripts of a Dallas

school board member¶s racist and profane comments obtained by a third partythrough an illegal telephone wiretap. The newspaper prevailed because theelected official¶s racist views appeared in public record and were matters of significant public concern.



Employment Reassignments

Although reassignments are within the discretion of school officials andis supported by contracts, they cannot be made in retaliation of an

employees exercising their expression of rights. This stands true for contracted employees as well as at-will employees.

Reeves v. Clairborne County Board of Education (1987): Reeves was reassigned frombeing a Chapter 1 coordinator to director of reading after she had testified on behalf of several teaching assistants who were suing the district over their terminations. The appealscourt agreed with the trial court that the reassignment was an unconstitutional retaliation for her previous trial testimony, a protected form of expression. The Mt. Healthy test wasfollowed since their wasn¶t any other reasons to support the reassignment.

Anderson v. Pasadena ISD (1999): A veteran administrator with an unblemished trackrecord was reassigned because criticizing a bond election and speaking out against thereorganization of the district. The administrator wanted to argue that the interests of thedistrict did not outweigh the exercise of his first Amendment rights and the courts agreed.



Expression within the school

Expression within the school has three important

dimensions.

Expression outside the classroom but on the school grounds,

Classroom academic freedom, and

Retaliation for speaking out about suspected wrongdoing under

the Texas Whistleblower statute.



Expression outside the classroom buton school grounds

In the Givhan v. Western Line Consolidate School District

(1979) the U.S. Supreme Court ruled that the First and

Fourteenth Amendments to the U.S. Constitution can under certain circumstances protect private communication between apublic-school teacher and a school principal.

Following the Givhan decision, the U. S. Supreme Court issued twoimportant rulings pertaining to teacher expression within the work

place; involving mailboxes and teacher complaints over workingconditions.



Expression outside the classroom buton school grounds cont«

Perry Education Association v. Perry Local Educators¶Association (1983): School mailboxes are not automatically ³public

forums´ available to teachers, their associations, and others todisseminate information. By contrast, the closed forum governmentproperty that is traditionally not a place for public communication.

Texas State Teachers Association v. Garland ISD (1985): Texasdoes not have a state law allowing schools to grant exclusiverecognition rights to one organization rights to one organization. Sincethe campus is not a public forum, the school district could deny allemployee organizations access during school hours yet allow other,unrelated groups, such a civic and charitable organizations, to meetwith students and faculty during non-class school hours.



Expression within the school

Ysleta Federation of Teachers v. Ysleta ISD (): The FifthCircuit ruled that a policy giving the superintendent complete

discretion to review all material prior to its distribution betweenemployees and their organizations was a violation of the First

Amendment. Court rulings suggest that administrators must besensitive to employee First Amendment rights when makingdecisions about school mailboxes, websites, and similar types

of communication systems.



Perry test

Ysleta has a three part test for determining when particular

speech by a public employee is protected:

The speech must have involved a matter of public concern.

The public employee¶s interest in commenting on matters of public concern must outweigh the employer¶s interest in

promoting efficiency. The employee¶s speech must have motivated the decision to

discharge the employee.



In-school employee speech

Hall v. Board of SchoolCommissioners of MobileCounty(1982): Prior-review policies involving teacher expression to

have sufficient guidance through ³clearly articulated prior-submission procedures and approval standards of viewingliterature through the mail system to prohibit ³the unbridleddiscretion that is proscribed by the Constitution.´

Chiu v. Plano ISD (2003): Administrators in the Plano ISDorganized a series of ³math nights´ a few years ago to inform

parents about its new math curriculum. The Fifth Circuit ruledthat the parents sought to speak on a matter of public concern,the district¶s math curriculum, and that the prior-review requestwas unconstitutional for the same reasons expressed in theYsleta and Hall decisions.



In-school employee speech cont.

Connick v. Myers (1983): This decision involved the issueconcerning whether employee expression concerning on-the-

job complaints is constitutionally protected and thus cannot beused in a negative employment decision. The U.S. SupremeCourt reversed a lower courts decision by ruling that suchexpression is not protected. The court held that an employee¶sspeech is protected when the employee speaks as a citizen on

matters of public concern but not when he or she speaks onmatters only of personal interest.



Connick¶s case implications

Administrators must determine if the expression is protected bythe First Amendment before recommending a negative

employment decision on the basis of that expression. Theseimplications are evident in the following cases:

Waters v. Churchill (1994)

Bowen v. Channelview ISD (1983)

McDaniel v. Vidor ISD



Grievances

Employees in Texas have a statutory right to presentgrievances to their employees under Chapter 617 of the

Government Code. Also, school employees have a right topresent a complaint to the school board under Article I Section27 of the Texas Constitution.

Day v. South Park ISD

Dorsett v. Board of Trustees for StateColleges and

Universities (1991) Association of Texas Professional Educators v. Ysleta ISD

(1983)



Academic Freedom

The following guidelines should be observed in relation to the teacher¶s claim of academic freedom in the classroom:

Teachers should be careful not to use their freedom of expression rights within the schoolin such a way as seriously to erode their ability to work with school administrators andcolleagues.

Before teachers make any determination for themselves about what they can or cannot doin the classroom, they should endeavor to ascertain what school policy is with respect tocurriculum practices and the role of the teacher.

While teachers do have a constitutional right in Texas by virtue of the Fifth Circuit decisionin Kingsville to engage in classroom discussion, the right has not been accorded muchsupport by the Commissioner of Education. Teachers should make sure that the discussionis relevant to their subject matter, is balanced, and has not undermined their effectiveness.

Teachers should proceed with caution when it comes to selecting materials and teachingmethodology, as well as awarding grades. It is always better to check with board policy andadministrative directives before proceeding.



Academic Freedom cont«

Court cases regarding academic freedom:

Epperson v. Arkansas (1968):Landmark decision which struck down an Arkansas statute forbidding the teaching of evolution in the public schools,

because of its conflict with the constitutional mandate separating church andstate.

Mercer v. State (1979): The U.S. Supreme Court affirmed a lower court rulingthat a state has the right to prohibit discussion of birth control in its publicschools.

Kingsville ISD v. Cooper (1971): A teacher conducted a controversial role-play while studying the post-Civil War era. Cooper was admonished not todiscuss ³blacks´ in the classroom, and that nothing controversial should bediscussed. Principal and superintendent recommended her for reemploymentbut board failed to issue her a contract. The court ruled that the proper test todetermine if a teacher has abused the right is ³not whether substantialdisruption occurs but whether such disruption over balances the teacher¶susefulness as an instructor´.



Texas Whistleblower Act

A law passed in 1983 prohibiting a

governmental body from retaliating againstan employee who reports a violation of law tothe appropriate law enforcement authority if the report is made in good faith (Texas

Government Code, Chapter 554).



Whistleblower Act cont«

The Whistleblower Act creates an exception to

general immunity from damage suits for schooldistricts:

District holds a heavy burden of responsibility if it upholdsretaliatory action who reports in good faith an alleged violation

of the law. Texas Supreme Court defined ³good faith´ to mean an honest

belief that the conduct is a violation of the law, a belief that isreasonable in light of the employee¶s training and experience.

The act protects a public employee from retaliation even if thereport was erroneous and even if the employee had a maliciousmotive (Wichita County, Texas v. Williams, 1996).



Educator Freedom of Association

The First Amendment as applied to the

states through the Fourteenth Amendmenthas been construed to guarantee the public-school teacher the freedom to associate.



Educator Freedom of Association cont.

Damages/decisions can result from denial of associational andexpression rights. The following cases have demonstrated these

denials:

TSTA v. San Antonio ISD (1983): The federal district court ruled in favor of SATC asserting that retaliation was the motivating factor for the board¶s actions(privileges revoked). District was ordered to pay $21,135 in compensatory andpunitive damages to SATC and its officers, plus attorney¶s fees and court costsin the amount of $188,281. The district was also ordered to reinstate all theorganizations privileges and recognize TSTA as the exclusive representative of its teachers, a decision at odds with Texas state law.

Valencia v. Ysleta ISD (1999): The commissioner ruled in favor of a teacher who was notified that, as president of the Ysleta Teachers Association, she wasineligible to run for the District Educational Improvement Council.



Educator Freedom of Association cont.

Texas statutory law also protects the right of association.School districts are precluded by state law from

recognizing teacher unions as bargaining agents and fromengaging in collective negotiation.

Texas Government Code Chapter 617 recognizes that ³anindividual may not be denied public employment because of theindividual¶s membership in a labor organization´.

TEC 21. 407 prohibits a school district from directly or indirectlyrequiring or coercing a teacher to join any group, club,committee, organization, or association or to refrain fromparticipating in political affairs.



Student Rights of Expression

During mid 1960¶sstudents had little rights

in the public school site. Students were under

the authority of their parents at home.

Students were under

the authority of teachers andadministrators atschool.




Loco parentis- is the relationship of school

personnel to students that means ³in place of parents.´




In 1960¶s had adramatic expansion of

student constitutionalrights. In 1970¶s federal courts

began to accord greater deference to schooldistricts decisionmaking.

In 1980¶s the expansionof student rights ended.



Reasons for student rights

Pressure of minorities for student protection

Liberalism of the Warren Court

Abuses of in loco parenitis authority inschools

Student radicalism generate by Vietnam War




Tinker v. Des MoinesSchool District 1969-

Three Iowa studentswere suspended for wearing blackarmbands to school.

Students wearing anarmbands in schoolimply their resistance tothe Vietnam War.



Armband Rule

This rule only applies to secondary schools

± Schools administrators and teachers may ask for them to remove it.

± If students don¶t remove the armband, theprincipal has the power to suspend the student.

Consequences Can ask them to remove it

If they fail to comply they can face: School suspension



Texas Court Cases

Blackwell v. Issaquena County Board of

Education-30 students at Henry WeathersHigh School wore "freedom buttons" toschool. The School Board prohibitedstudents from using ³freedom buttons.´

Olesen v. Board of Education-Student wassuspended for wearing earrings.



Texas Court Cases

Chalifoux v. New Caney- Two students that

attend New Caney High School in NewCaney filed a law suit against the schooldistrict Students were prohibited to wear rosaries outside their clothing.

Phoenix Elementary School v. Green- Schoolcame up with a mandatory dress code for allstudents where no restrictions were towardsspeech but to dress code.



Bethel School District No. 403 v. Fraser

Bethel School District No. 403 v. Fraser -A senior student that attended Spanaway Washingtonexpressed a speech nominating classmate another student for Vice President. The speech containedsexual innuendos, which triggered disciplinary actionfrom the administration personnel.

Rutherford v. Cypress Fairbanks I.S.D- A senior Cy-Fair student wrote a will leaving a debt of $40,000 tothe football coach for failure to secure collegescholarships because of the team¶s record.



School-Sponsored Student

Publications

Hazelwood School District v.Kulmeier - public schoolofficials can censor schoolsponsored studentexpressions as long as theyhave a valid educationalreason for doing so (articledescribing school students'experiences with pregnancy

and another articlediscussing the impact of divorce on students at theschool).



School-Sponsored Student

Publications

Student Press Law- Arlington, Virginiaestablished an organization to assist frustrated

student journalists. Six states that pass laws excluding styles of

restriction of newspaper products developed bystudents are:

Arkansas

California Colorado Iowa Kansas Massachusetts



Texas Court Cases

Beussink v. Woodland R-IV School District- A

junior woodland high school student createda web page of the Woodland High Schoolstaff without the principals consent and wasavailable for public view. The web page

contained inappropriate language andexpressed his opinion towards staff.



Texas Court Cases

Virgil v. School Board of Colombia County, Florida -Parents of students at Columbia High sued theschool board seeking some removal of book from arequired course because it contained sexuality andvulgar language.

DeNooyer v. Livonia Public Schools- A second grade

student at McKinley Elementary School was deniedto show her classmates a videotape she had broughtin for show and tell because it was related to religion.



Non-School Sponsored Student

Publications

The rationale of this policy is to protectstudents¶ rights to free speech in creation of official school publications and at the sametime balancing the school district¶s role in

monitoring student publications.



Non-School Sponsored Student

Publications

Dallas I.S.D. Case- students were prohibited

from meeting outside of the school cafeteriato engage in prayer and reading the Bible.



School defense

Equal Access Act

Students don¶t have freedom of speechrights to preach nor distribute religiousmaterials in school.

Student will be violating the wall of

separation between church and state.



Texas Court Cases

Clark v. Dallas I.S.D.

Muller v. Jefferson Lighthouse School Rivera v. East Otero School District

Slotterback v. Interboro School District

Nelson v. Moline School District No. 40 Shanley v. Northeast I.S.D.

Boucher v. School Board of Greenfield



Muller v. Jefferson LighthouseSchool

A fourth grade student at Jefferson

Lighthouse Elementary School was denied todistribute a religious invitation to his peers byhis principal.



Texas schools adopt a prior-view

policy with these components:

Criteria that spell out what is forbidden

Procedures by which students submitproposed materials to be reviewed.

A brief period of time during which theprincipal or other school official must make a

decision. An appeal procedure.

A reasonable time during which the appeal is

to be decided.



Texas Court Cases

Rivera v. East Otero School District -A

female student at Colorado's East OteroSchool District distributed a newspaper thatpromoted Christianity principles.



Texas Court Cases

Nelson v. Moline School District No. 40 -A studentpublished newspaper by the name of Issues and

Answers was denied by administrators for distribution among peers during school hours and inschool premises.

Shanley v. Northeast I.S.D. - A female student at

Arthur High School was suspended for distributingan underground school paper called Awakening thatwas produced by students and distributed across asidewalk from the school campus.



Texas Court Cases

Boucher v. School Board of Greenfield -A

student published an article on The Last, anunderground newspaper that displaysanonymous articles such as ³So You WantTo Be a Hacker.´ The newspaper was

distributed on school grounds and during theday.



Student Freedom of Association

TEC 37.105 refuse to allow people having nobusiness to enter school property

TEC 37.107 trespass on school property is acrime

TEC 37.121 members of fraternities or gangsin public schools



Texas Court Cases

Grayned v. Rockford- A group of students got

together outside the school to protest withposters demanding equal rights.

Healy v. James- a public college avoidedrecognizing student activist groups for a SDS

organization.



Texas Court Cases

Dixon v. Beresh - A student has sued the

school authorities because they have refuseto recognize a student organization by thename of Mumford Committee to End Stress.

City of Dallas v. Stanglin- A dance hall was

available for students ages 14-18 whichintended to be a place for students tosocialize, but with restricted admittance topeople between the age listed above.



Reference:

Walsh, J, Kemerer, F & Maniotis, L. (2005).

The Educator¶s Guide to Texas SchoolLaw. (6th ed.) Austin,Texas, University of Texas Press.



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Expression of Student Rights, William Allan Kritsonis, PhD