Public school teachers have First Amendment rights

It may sound obvious that teachers have the right to free speech when they are outside of the classroom, but a recent case from the Georgia Supreme Court may cause some concern among teachers and other public employees.

The Court declined to take up a case brought by Kelly Tucker, a public school teacher in Tift County, Georgia. She had a Section 1983 lawsuit against the local school superintendent and the school board chair accusing them of violating her First Amendment rights by punishing the exercise of her freedom of speech.

At the center of this case were allegedly racially-charged Facebook posts made by Ms. Tucker on her own time. She was commenting about protestors in the Black Lives Matter Movement. Several Facebook users in the community recognized Ms. Tucker as a local teacher and reported the posts to her superiors, who suspended Ms. Tucker for five days and required her to participate in “diversity training.”

Page Pate was interviewed about this important case on WABE, the Atlanta NPR affiliate where Page serves as the station’s Legal Analyst.

Under the U.S. Supreme Court case Pickering v. Board of Education, government employees, including teachers, have a more limited right to free speech, especially when their speech relates to or impacts their work. Still, public employees may sue the government when they are fired or disciplined for their speech, so long as they can prove that:

  • They did not engage in the speech in their capacity as government employees and the speech involved a matter of public concern;
  • The First Amendment interests of the employee outweigh the government’s interest in preventing disruptive speech that interferes with the government’s functions; and
  • The government’s actions were motivated by the employee’s speech.

Ms. Tucker’s lawsuit was dismissed after the Court ruled that the school officials had “qualified immunity.” Qualified immunity means that government officials are immune from lawsuits unless their actions violate rights that are “clearly established” by law. Because there was no prior case like Ms. Tucker’s, the Court determined that this alleged First Amendment violation was not “clearly established” at the time.

But while all the justices agreed that the law was not “clearly established,” three justices issued a separate opinion arguing that Ms. Tucker had a right to post on Facebook and that her right was violated.

These justices questioned whether the government has the power to discipline its employees for speech they make outside the scope of their employment that is unrelated to government business. Ms. Tucker’s posts were on her personal Facebook account and not related to her work as a teacher. For that reason, the school district should not be allowed to punish her simply because it considered her views offensive.

While Ms. Tucker was not successful in her Section 1983 lawsuit, that doesn’t mean that school administrators can continue to discipline teachers when they exercise their First Amendment rights outside of the classroom. We think this case should put school boards and superintendents on notice that courts may be willing to accept lawsuits from teachers like Mr. Tucker in the future now that this right has been recognized by three state supreme court justices.