美第二巡回法院裁定公立学校可移除教师教室骄傲旗

This is [music] Bloomberg Law with June Graasso from Bloomberg Radio.

Should high school teachers be able to hang pride flags on the walls of their classrooms or put up pride stickers? That question became a federal case when three teachers took a Long Island high school to court for ordering the removal of pride flags and stickers from their classrooms. The second circuit court of appeals answered that question with a resounding no. The court said the school district neither violated the teachers first amendment rights to free speech nor discriminated against them based on sexual orientation by ordering the removal of the flags and stickers.

Joining me is First Amendment expert Timothy Zik, a professor at William and Mary Law School. Tim, is there a general rule for what can be put up in public school classrooms?

I mean, there are lots of cases about student speech, right? So, I'm thinking of the Supreme Court has decided a number of cases about the sort of scope of student speech rights. So this involves faculty or teachers and their rights, free speech rights as they pertain to, in this case the classroom, but not the curriculum, but instead the sort of blackboards or bulletin boards and walls and doors and those sorts of things and what they put on them.

There is no hard and fast rule for that, right? Certainly there's no Supreme Court case that's about these specific facts. So what the second circuit is doing is it's applying a sort of doctrine that applies to the rights the free speech rights of public employees generally and these are high school teachers, math teachers and others and it's their speech that's at issue. So that's that's what the court is doing. So in some sense it's you know it's addressing a novel issue I think in that circuit even nothing's pertain to specifically what goes on doors and the walls of math classrooms and the like.

The plaintiffs here the teachers made several arguments. Let's take them one by one. First of all they argued that the ban violated their first amendment free speech rights.

Yeah. So they argued that uh the pride flags and there were a couple different versions of the pride flag issue were a form of what's called symbolic conduct or expressive conduct that conveyed their political speech. These are people who are out as gay individuals. So their argument was, you know, by forcing us to take these things down that violates our free speech rights. And they added, you know, there's a sort of discriminatory element to this because you're not making people take down other things from the walls.

So, you're singling us out based on they allege in their complaint viewpoint. And the court rejected that argument uh entirely, rejected all their arguments, but that one in particular implicates this idea of, you know, the speech rights of public employees. And there's a case called Garcetti. And that's the Supreme Court case the court's relying on the most. And in Garcetti, there was an assistant district attorney who was writing memos for search warrants.

And he came across a warrant that was problematic. And he brought that to his boss's attention in a sort of whistleblower way. And he was sanctioned or disciplined for that. And he said, "Well, it violates my free speech rights to discipline me for that speech." speech. And the court's answer was when the public employee creates speech as part of their so-called uh professional duties. When the speech owes its existence to the job itself, when they go to work, these are different ways the court phrase it.

When they go to work and they create speech that they're being paid to create, uh like the memo in Garcetti, then the First Amendment just flies out the window. It just doesn't apply to that speech at all. So whether you're arguing it's just a straight up, you know, you're taking down my protected speech or you're discriminating based on viewpoint, none of those arguments go anywhere if the speech essentially belongs to the employer.

And that's where the court lands. It says, you know, that speech on the walls and on the doors is in essence part of curricular speech. And the first amendment doesn't restrict the public employer, the school administrators, the principles when they deal with and restrict that kind of speech. So that's what happened to their free speech claims and everything else just sort of flows from that.

Has the Supreme Court ruled that students have free speech rights at school?

Oh yes. Uh so the court in a case called Tinker back in the 1960s said that students do not shed their free speech rights at the schoolhouse gates. And in that case the students were wearing black armbands to protest the Vietnam War. And they were disciplined punished for wearing them in violation of school policy. And the court said you can't discipline these students. The first amendment protects their political disscent unless what they're doing creates a material and substantial disruption in the classroom or with respect to the school's functions.

So, it's clear that students don't shed their first amendment rights. And this court, the Second Circuit, says neither do teachers. We're just saying this speech in particular is not protected speech. And they drew a distinction between the things the teachers are putting on the walls and the doors and say a pride flag lapel pin or a photograph of their same-sex spouse. Those the court said are likely protected speech.

That's not something the employer owns or has plenary control over. But when it comes to creating a classroom environment, which is how the court characterized this speech, the employer controls. Now they also claim that they were denied equal protection.

Yeah. So part of that is being singled out based on the the sort of viewpoint of the speech, but they also alleged they were singled out because they're gay. And the court said there's nothing in the complaint that sort of sheds any light on a claim of of so-called animus. In other words, you haven't alleged any facts that would support the claim that this policy was the result of or was purposefully discriminatory against the class of individuals based on that characteristic sexual orientation.

So, the equal protection claim they said uh is also dismissed as the district court dismissed it. They're just upholding the district court. Then they made some sort of human rights claims, sort of discriminatory claims under federal law and state law and those went the way of this discrimination claim that I just discussed.

I mean, do you think this is a solid opinion?

I mean, it applies faithfully, I think, what the court said in Garcetti with regard to public employees. I mean, some might think it's a bit of a stretch to say what goes on the walls is part of the curriculum. So it's pretty clear there that you know district officials and and others would have control at the high school level at least or elementary school level over what's taught but extending that to what goes on the walls you know some might think stretches things a bit or as the court characterize it creating a classroom environment.

I suppose that in a math classroom, one might expect to see equations or great figures in math from history or something like that. That seems to be the sense in which the court saying, "No, no, no. This speech is all about a classroom environment. When teachers put things up in the classroom, that's being done pursuant to their job responsibilities and that is something that the employer can control." And I guess, you know, if you think about it, that would make sense.

You know, if that weren't the case, then all kinds of political speech could go up on the walls, right? You could have MAGA speech or anti-MAGA speech and teachers could claim, well, that's all, you know, part of my political expression. And so I think pragmatically it's persuasive, right? and and probably with respect to Garcetti too. The one thing that con