United States Court of Appeals Limits First Amendment Rights: Public School Teacher Cannot Pursue Retaliation Claim Against School

Lauren Palmer, Government Law Review member

          On January 27, 2010, the U.S. Court of Appeals, Second Circuit, held that another type of speech is not protected under the First Amendment.  Public employees’ speech made “pursuant to . . . official duties” is not a protected speech.[1]  The case, Weintraub v. Board of Education, involved a teacher who was denied the opportunity to pursue a retaliation claim against a school.[2]  The U.S. Court of Appeals found that filing a grievance was pursuant to one of his official duties as a public school teacher, maintaining discipline, and thus was not protected speech.[3]  This holding rests solely on the court’s broad interpretation of a recent case, Garcetti v. Ceballos, [4]  and a narrow interpretation of public employees’ First Amendment protections.[5]  In this author’s opinion, the dissent was correct–a more appropriate reading would be a less expansive one.  The definition of speech made “pursuant to . . . official duties” should be read more narrowly, as this would preserve the “delicate balancing” required by the First Amendment freedom of speech for public employees.[6]


          Petitioner-Appellant David H. Weintraub, a former elementary public school teacher, sued the Board of Education of the City of New York for wrongful termination.[7]  He claimed that Respondent-Appellees violated his First Amendment rights by retaliating against him, and ultimately fired him, after he filed a formal grievance with his union representative.[8]  Weintraub filed the grievance to challenge the school administration’s refusal to discipline a student who threw a book at him during class on multiple occasions.[9]  He felt it was the matter was of public concern; that it was “not an environment a teacher would want to go to where a child is allowed to throw a book at teachers.”[10]  Weintraub alleged that the school officials retaliated through acts of intimidation and harassment against him because of his complaint.[11]  He also alleged that after his complaint, he received “unfounded negative performance reviews and evaluations,” wrongful criminal accusations, “and was ultimately terminated.”[12] 

          The Eastern District Court, in an April 28, 2006 opinion, originally held that Weintraub’s First Amendment claim was valid because the content of the speech related to a public concern regardless of his status as a teacher and thus his complaint was protected by his First Amendment rights.[13]  Over a year later, on May 29, 2007, the district court reconsidered the plaintiff’s First Amendment claim in light of the subsequent Garcetti decision which raised new issues and redefined protected and non-protected speech in schools.[14]   

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New York City Teachers: Leave Obama at the Schoolhouse Gate

Brady Begeal, Albany Government Law Review Member

During the Presidential campaign race of 2008, the United Federation of Teachers (UFT), the largest public school teachers’ union in the country, began distributing pro-Obama political materials to its members after deciding that summer to support Obama’s run for office.[1]  Soon after, New York City informed UFT that teachers could not wear political buttons because of the City’s policy.[2]  The City’s policy was found in a regulation that stated “[w]hile on duty or in contact with students, all school personnel should maintain a posture of complete neutrality with respect to all candidates.”[3]  The regulation went on to say “[n]o material supporting any candidate, candidates, slate of candidates, or political organizations/committees may be distributed, posted, or displayed in any school building.”[4]  UFT promptly filed a suit against the City, claiming First Amendment violations and challenging the regulation’s validity.[5]  In January, 2010, over two years after the suit was filed, a New York district court held that New York City may pass regulations banning high school teachers from wearing political buttons at school without infringing upon the teacher’s constitutional right to free speech.[6]  

The New York City Education Chancellor Joel Klein argued that “[p]artisan political activity by staff in the presence of students . . . sends the message that the view expressed carries the support of the school system.”[7]  At trial, plaintiffs presented expert testimony from David Moshman, a professor of educational psychology at the University of Nebraska.[8]  Moshman testified that elementary students “may fail to distinguish speech that happens to occur on school premises from official school views and teachings and may be unable to fully comprehend explanations without distinction.”[9]  However, when it comes to high school students, they can “spontaneously understand that a teacher’s button is not part of the curriculum” and “[f]ew, if any [high school students] would mistakenly believe that a campaign button worn by teachers constituted official school-related speech.”[10]  To this, Judge Kaplan of the Southern District of New York stated that Moshman “acknowledges that at least some would be misled on that point and to that extent concedes that the defendants’ determination is well grounded in some degree.”[11]  Thus, the court ultimately concluded that “[p]laintiffs . . . failed to raise a genuine issue of fact that the Regulation’s ban of teacher-worn political buttons in high schools is not reasonably related to defendants’ legitimate pedagogical concerns.”[12] 

The outcome of this case is hardly shocking.  The United States Supreme Court first addressed the free speech rights of students and teachers in the well-known case Tinker v. Des Moines Independent Community School District in 1969.[13]  There, the court articulated one of its most famous free speech quotes: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[14]  However, Tinker was the “high point” for student and teacher free speech rights, which have gradually diminished and have been replaced by the growing right of schools to enforce academic discipline and maintain pedagogical interests.[15]  Over the last forty years, schools began disassociating themselves from government politics while courts have grown more willing to shelter school districts on the issue restricting political speech by teachers.[16] 

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Super Bowl Commercial Raises First Amendment Concerns

Fatin Haddad, Government Law Review member

            According to FOX News, a commercial that is approved to air during the Super Bowl is stirring up quite a controversy.[1]  College football phenomenon, Tim Tebow, and his mother are scheduled to appear in a pro-life commercial during the Super Bowl.[2]  The commercial is being funded by a conservative, Christian group—known to the public as Focus on the Family—and the message is a recounting of Mrs. Tebow’s decision between her life and the life of her unborn child, which turned out to be her Heisman Trophy winning, star quarterback and heartthrob son Tim Tebow, despite doctors’ suggestions to abort the pregnancy due to the serious risk of death she faced in carrying the child to term.[3] 

          While Mrs. Tebow was pregnant with her son Tim she went on a mission trip to the Phillippines and contracted a serious infection which doctors feared would kill her if she did not abort the pregnancy.[4]  She made the choice to carry the child to term, despite the risk of her own death, but yet her son was born and grew to be one of the most talented college football quarterbacks of his time.  This true story will be the content of the commercial, and the underlying message is said to be—by Focus on the Family—focused on “celebrating families.”[5]  Pro-choice women’s groups, such as Women’s Media Center, however, seem to think differently as they have voiced concerns that this commercial may lead to anti-abortion retaliation in the form of violence towards “reproductive health providers and their patients,” and should therefore be banned.[6]  Several groups have joined the cause, rallying together to petition CBS to ban the commercial as well.[7]  

         The argument made by the women’s groups, who are protesting against the commercial, is primarily based on the fact that CBS has had a “long history” of banning political advertisements; however, CBS replied that it has changed its policies recently and thus the commercial is consistent with its current standards.[8]  In light of the current dilemma regarding the highly controversial topic of abortion—which has historically divided Courts, politicians, and even every day citizens—there are Constitutional considerations that make for an interesting perspective on which way the scale of freedom of speech should tip between the women’s rights groups and the Tebows.

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