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December
17, 2010
U.S. Supreme Court Upholds
Sixth Circuit Decision Finding Teacher's Speech Was Not Protected by
the First Amendment
by Kurt Graham
The U.S. Supreme Court has
declined to review a federal court of appeals decision that a
Michigan teacher who complained to school officials about the size of
special education classes was acting as "a public employee
rather than a citizen" and was not protected by the First
Amendment of the U.S. Constitution. The U.S. Supreme Court's
decision in Fox v. Traverse City Area Public Schools Board of
Education leaves undisturbed an earlier decision of the U.S.
Court of Appeals for the Sixth Circuit that the former teacher could
not show that the Traverse City Area Public School District's refusal
to renew her teaching contract was unconstitutional because her
complaint about class size, while a matter of public interest,
stemmed from her teaching responsibilities.
Fox, a special education
teacher, was hired to teach an elementary school class under a
probationary contract covering two school years. In February 2007,
the school district informed her that she would not be employed for
the 2007-2008 school year because she had exhibited performance
deficiencies.
Fox denied that she had any
type of performance problems and alleged that after she volunteered
to work in an elementary reading program, she found herself with a
teaching load of up to 34 students, which exceeded the State of
Michigan's legal limit of 21 students per teacher. Fox claimed that
after she complained about the class size, school officials became
hostile to her and eventually decided not to renew her teaching
contract.
After her non-renewal, Fox
filed a lawsuit in U.S. District Court alleging that the school
district denied her continued employment in violation of the First
Amendment. Fox claimed the First Amendment protected her comments
because she had no duty as a teacher to speak out on the subject of
class size, and thus raised the matter "as a citizen" on
behalf of the affected students.
The U.S. District Court
dismissed her lawsuit, and the Sixth Circuit affirmed the dismissal.
Public employees making statements pursuant to their official duties
are not speaking as citizens, and their speech lacks the protection
of the First Amendment. The U.S. Supreme Court stated that even if
Fox did not have any responsibility for setting class sizes, her
complaint owed its existence to her employment as a teacher and thus
lacked First Amendment protection.
The U.S. Supreme Court's
decision affirms the fact that a public sector employee's statements
made pursuant to his or her official job duties are not protected by
the First Amendment. Nevertheless, it is sometimes difficult to
characterize properly a public sector employee's comment as being
made in the public's interest, or as a private citizen. Therefore,
while school districts and other public sector employers have the
right to make personnel decisions concerning employees who make
objectionable comments during their employment, the Fox
decision shows that they should remain sensitive to potential First
Amendment claims that an employee may raise in response to any
adverse personnel action. School districts and other public sector
employers are encouraged to proceed cautiously when an employee makes
statements that may be potentially covered by the First Amendment and
to seek legal counsel before making a final decision on how to
proceed.
If you have any questions
concerning this decision or how it affects your school district,
please contact your Clark Hill Education Law attorney.
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