School Speech Roundup: Employee Whistle-Blowing and Violent Student T-Shirts

By Mark Walsh — October 21, 2008 3 min read
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A couple of interesting decisions from recent weeks on free speech for school employees and students have just crossed my desk.

Employee Speech: A federal appeals court has revived the lawsuit of an Idaho school security specialist who claims he lost his job in retaliation for raising concerns with administrators about school discipline and safety.

A three-juge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled unanimously on Oct. 15 in Posey v. Lake Pend Oreille School District that under a recent U.S. Supreme Court decision on speech by public employees, a legal inquiry into the protected status of speech in a First Amendment retaliation claim presents a mixed question of fact and law. Thus, a district court’s summary judgment in favor of the school district was inappropriate in this case.

The case concerns a high school security aide who raised questions about school safety in a letter to district administrators that he had composed on his own time.

The 9th Circuit panel said the case was governed by the Supreme Court’s 2006 decision in Garcetti v. Ceballos, which held that when public employees speak pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and their speech is subject to employer discipline.

(Interestingly, the opinion does not acknowledge the debate in the lower courts over whether Garcetti applies with full force to public education. See my blog post about a teacher speech decision which held that it didn’t.)

The 9th Circuit panel said there were factual questions about the scope of the school security aide’s job duties and whether he wrote his letter pursuant to his official duties.

“Summary judgment is ... inappropriate where, as here, (1) plaintiff has spoken on a matter of public concern, (2) the state lacks an adequate justification for treating the employee differently from any other member of the general public, and (3) there is a genuine and material dispute as to the scope and content of plaintiff’s employment duties,” the court said in sending the case back to the district court for further proceedings.

Student Speech: A federal district judge has upheld a Pennsylvania school district’s restrictions on student speech perceived as promoting violence, ruling against a student who sought to wear a T-shirt promoting “terrorist hunting.”

This decision from late last month was featured in a story last week in The Wall Street Journal. (A subscription may be required.)

The case concerned a T-shirt worn to school by Donald Miller III, a 9th grade student at Penn Manor High School in Millersville, Pa. The shirt depicted a handgun and the phrase “Volunteer Homeland Security” on the front and such phrases as “United States Terrorist Hunting Permit” and “Gun Owner-No Bag Limit” on the back, suggesting permission to hunt and kill terrorists.

School officials barred the shirt as a violation of the district’s policy against student expression that incites violences or advocates the use of force or violations of law.

In a Sept. 30 decision in Miller v. Penn Manor School District, U.S. District Judge James Knoll Gardner of Allentown, Pa., sided with the school district.

“The language on Donald’s T-shirt advocates the use of force, violence and violation of law in the form of illegal vigilante behavior and the hunting and killing of human beings,” the judge said. “There is no ‘Volunteer Homeland Security’ in this country. The message of the T-shirt implies that Donald is licensed to hunt and kill terrorists (i.e. other human beings) with no ‘bag limit.’ ”

The judge did rule that the family was likely to succeed in its arguments that the school district’s since-amended student speech policy prohibiting anything that was a “distraction to the educational environment” was unconstitutionally vague and overbroad.

A version of this news article first appeared in The School Law Blog.