It depends. It is important to remember that the test developed by the Pickering-Connick line of cases has two basic prongs. First, the court must determine whether the speech in question touches on a matter of public concern. If it does not, the teacher will not receive any First Amendment protection. If the speech does touch on a matter of public concern, the court proceeds to the balancing prong of the test. At that point, the court must balance the public school teacher’s interest in commenting upon a matter of public concern against the school officials' interest in promoting an efficient workplace of public service.

Some balancing factors for a court to consider include

• whether the statement impairs discipline by superiors or harmony among coworkers,

• whether the statement has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, and

• whether the speech in question interferes with the normal operation of the employer's business.

Sometimes in considering these factors, the courts will side with school officials in a First Amendment lawsuit although the public school teachers' speech touches upon a matter of public concern. In one recent case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students.¹

Subsequent appeals in the case acknowledged that the teachers' complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers' speech "resulted in school factions and disharmony among their co-workers and negatively impacted [the principal's] interest in efficiently administering the middle school."²

Conversely, the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education.³ In this decision, a teacher's aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system's interest in avoiding racial tensions outweighed the aide's right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide's "remarks did not disrupt the School System's function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so."⁴

¹ Fales v. Garst, 235 F.3d 1122 (8th Cir. 2001).

² Id. at 1124.

³ Belyeu v. Coosa County Bd. of Education, 998 F.2d 925 (11th Cir. 1993).

⁴ Id. at 929.

Last updated: Thursday, September 9, 2010 | 09:11:41