Free Speech in the classroom

Free Speech in the classroom

Opinions by US Circuit Courts of Appeal

A number of U.S. Circuit Courts of Appeal have considered challenges from teachers contending that their respective employers had curtailed their constitutional right to free speech.

1. Mayer v. Monroe County Community School Corporation, 474 F.3d 477

In this 42 USC 1983 lawsuit, a teacher alleged that she was dismissed from her position because of her statement opposing the United State’s military involvement in Iraq in a social studies class. The Circuit Court said that the First Amendment does not entitle primary and secondary teachers to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system while teaching in a classroom setting.

2. Deschenie v. Bd. of Educ. of Cent. Consol. Sch. Dist. No. 22, 473 F.3d 1271

Here the Circuit Court ruled that a former teacher did not suffer unlawful retaliation for engaging in speech protected by the First Amendment after finding that the teacher’s speech, which concerned bilingual education, was not causally related to the adverse employment actions taken by the school board.

3. Casey v. W. Las Vegas Independent School District, 473 F.3d 1323

The school district and officials were sued for allegedly demoting and ultimately terminating a teacher for reasons that the teacher claimed constituted unlawful retaliation for her exercising her First Amendment rights. The court dismissed the appeal, commenting that the teacher failed to show that her statements concerning “the Head Start program” and miscellaneous violations of state or federal law were made in her capacity as a citizen and not pursuant to her “official duties.”

Making a false report of an incident to an employer

Making a false report of an incident to an employer

Sweeney v Safir, 267 AD2d 99, Motion to appeal denied, 95 NY2d 753

New York City police officer Kevin Sweeney reported that he was the victim of a gunpoint robbery of his fiancée’s car. He made these allegations in both police reports and in his testimony before a Grand Jury. The commissioner determined that rather than being the victim of a robbery -- the car had been simply stolen from the street when Sweeney left it double-parked with the keys in the ignition and the engine running. Sweeney was dismissed from his position for making false statements.

The Appellate Division unanimously confirmed the Commissioner's action, finding that “no basis exists to disturb” the commissioner's determination and that the penalty of dismissal does not shock its sense of fairness.

Medical examination procedures established by the employer negotiable

Medical examination procedures established by the employer negotiable

Professional Firefighters, Local 32, v City of Utica, 32 PERB 3056

The City of Utica unilaterally directed its firefighters to take a physical examination administered by a City-designated physician. It advised firefighters that it would terminate anyone who failed the examination. Local 32 filed an unfair labor practice charge with PERB alleging that the City had refused to negotiate “specific subjects related to the City's directive.”

PERB directed the City to negotiate the local's demands concerning “the pre-testing, testing, post-testing and re-testing procedures” and related issues, including the firefighter's ability to select the examining physician. 

Public policy and arbitration awards

Public policy and arbitration awards

Correctional Officers PBA v State, 94 NY2d 321

Edward Kuhnel, a State correctional officer, was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler's declaration of war on the United States.

Kuhnel was charged with violating two department rules:

[1] “No employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or its personnel;” and 

[2] “An employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.”

The Department also charged that Kuhnel's conduct “endangered the safety and security of all facilities in the New York State Department of Correctional Services.”

The disciplinary arbitrator found that the department failed to prove Kuhnel was guilty of the charges filed against him and ordered him reinstated to his position.

The arbitrator concluded that there was no linkage between the off-duty misconduct and Kuhnel's employment because, he said, the department failed to show that Kuhnel's conduct harmed “the department's business, adversely affected his ability to perform his job, or caused co-workers not to work with him.”

According to the arbitrator, the expectation or projection of possible harm, in contrast with evidence of actual harm, was not enough to permit restriction of the employee's symbolic free speech or regulation of his off-duty conduct. As to the charge that Kuhnel had joined or affiliated himself with an organization, that would “conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee,” the arbitrator said that the department “provided no evidence of Kuhnel's affiliation with the Neo-Nazi party's objectives or activities.”

PBA filed a petition pursuant to Article 75 of the Civil Practice Law and Rules to confirm the award. The department filed a “cross-petition” in an effort to vacate the arbitration award on the grounds that “it was irrational and violated public policy.” Supreme Court granted the PBA's petition confirming the award.*

The Appellate Division, in a 3 to 5 decision affirmed the Supreme Court's action, holding that the award was rational and did not violate a strong public policy of this State. The department appealed the ruling to the Court of Appeals, which held that “our jurisprudence has carefully limited the invocation of public policy concerns as a basis for usurping the role of an arbitrator and determining a dispute on the merits.” It then affirmed the Appellate Division's determination.

The court's rational:

Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management and the courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies and cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.

Addressing the public policy argument advanced by the department, the Court said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake. Courts shed their cloak of noninterference [only] where specific terms of the arbitration agreement violate a defined and discernible public policy.

 

The Court of Appeals said that “looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.”

* Petitions to confirm an arbitration award must be filed within one year of the determination; petitions to vacate an arbitration award must be filed within three months of the date of the award.