What Civil Rights Do Teachers and Professors Have?

Unfortunately, teachers and professors don’t have an unfettered ability to exercise their constitutionally protected civil rights. Constitutional Law attorney Andrew Shubin summarizes here the legal standards for reviewing teachers’ and professors’ conduct involving their civil rights. These summaries relate to fact-specific situations that don’t necessarily reflect the application of legal rules to every single instance. Questions of constitutional import always deserve a close review by a qualified attorney.

If you are a teacher or professor facing civil rights constraints and violations, you should schedule a free and private consultation with a highly experienced attorney who understands intricacies of events involving constitutionally guaranteed rights. Call (814) 826-3586 to schedule a free and confidential consultation.

Civil Rights Laws for Private Universities

Private institutions don’t have to protect First Amendment rights in the same way public institutions do. There are instances when teachers and college professors of private schools are contractually bound to uphold the values and ethos of the private institution. In this context, violations of rights and freedoms can occur by contractual stipulations–even when the decisions can be repressive of the teachers’ civil rights. Similarly, college professors and teachers can negotiate their employment contracts and protect themselves against violations of their freedoms. As observed in Greene v. Howard University (1969):

“Contracts are written and are to be read, by reference to the norms of conduct and expectations founded upon them. This is especially true of contracts in and among a community of scholars, which is what a university is.”

The faculty members in Greene v. Howard University were non-tenured professors who were denied re-appointment without a hearing for disorderly conduct involving protected speech. Since there was a contractual provision for hearings, the failure to provide a hearing for the professors to expose their side of the story constituted a breach of contract.

Protection of Constitutional Rights at Public Schools and Colleges

Since the government must protect constitutionally guaranteed rights, teachers and college professors of public institutions—or in private institutions that receive federal funds—can’t be dismissed or retaliated against for actions in pursuit of their constitutional rights. However, there are some narrow circumstances when these constitutionally protected can be limited.

Freedom of Speech

Teachers’ freedom of speech cannot be constrained when the statements are about an issue of “compelling state interest.” The analysis is whether a matter is of public or private concern. Pickering v. Board of Education, 391 U.S. 563 (1968) A public concern usually involves “compelling state interests” when it’s commenting upon matters of common concern such as the interest in efficient public services. The vital question teachers need to ask themselves before issuing public statements is whether the statements relate to school operations and private student matters regulated under state and federal laws.

While protected speech does not need to relate to an issue of exceptional significance, it has to address matters that can generally affect others. Also, dismissal is permitted when the educator’s statements are detrimental or disruptive to the school environment or relate to internal workings within the school. The following examples shed some light on this question.

Constitutionally Protected Speech

• A teacher is speaking at a school board meeting regarding the tenure of another teacher. Piver v. Pender County Board of Education (1987).
• A letter of complaint to a state education agency concerning a local school district’s delay in implementing a federal program. Southside Public Schools v. Hill, 827 F.2d 270 (1987).
• Speech by teachers regarding school officials’ misdeeds and impropriety. Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (2007).

Prohibited Speech

• Statements by a public employee about the internal policies or activities of the public office. Garcetti v. Ceballos, 547 U.S. 410 (2006).
• Personal viewpoints, even when of public concern, if outside the curriculum prescribed by the school board. Mayer v. Monroe County Community School Corp., 474 F.3d 477 (2007).
• Using racial epithets in a classroom lesson when the epithet’s use violates district policy—even when used as part of a class session. Brown v. Chi. Bd. of Educ., 824 F.3d 713 (2016).
• Arranging for special psychological services for a student. Montanye v. Wissahickon School District, 218 Fed. Appx. 126 (2007).
• A school board’s dismissal of a principal leading an initiative and voting in favor of converting a public school into a charter school. D’Angelo v. School Bd. of Polk County, Florida, 497 F.3d 1203 (2007).

Freedom of Religion

Teachers have the right to freedom of belief. However, restraints of this freedom have been permissible when the conduct appears to be the school or district’s policy or when a teacher will require others to submit to the same belief. In a recent case related to “taking a knee” before football games, a coach’s actions were sanctioned based on the perception of school district endorsement of his actions. Kennedy v. Bremerton Sch. Dist., 869 F.3d 813 (2017). This case presents a cautionary note for professors and teachers.

In a recent rare opinion, the U.S. Supreme overtly states disagreement with the lower court’s opinion in Kennedy v. Bremerton Sch. Dist regarding the constitutionality of the professor’s dismissal. Kennedy v. Bremerton Sch. Dist. (Jan. 22, 2019). However, the higher court’s denies review of the case. The school district, in that case, alleged the coach was neglecting his duty of supervising the players while praying at games. The professor’s failure to refute or clarify the allegation that he neglected his duties left a factual question unanswered in the eyes of the higher court. With this explanation, the question of the constitutionality regarding termination of the coach’s employment for “taking the knee” was unanswered. This case offers an informative note on the importance of clarifying all factual questions at the lower levels, thereby, preserving the rights for proper and complete appellate review.

Unreasonable Searches and Seizures Under the Fourth Amendment

The Fourth Amendment of the U. S. Constitution guarantees the privacy of individuals and safeguards against unwarranted and unreasonable searches and seizures of their persons, documents, effects, and places where they may expect privacy. The legal analysis is on whether there is an “expectation of privacy” is legitimate. An attorney can explain this legal test in greater detail.

Can Employment Termination Be Justified after Exercising Free Speech?

Dismissal of professors who engage in constitutionally protected activity can occur in situations where there are “mixed motives” to dismiss an educator. For example, termination of a professor who criticizes school’s policy doesn’t violate a constitutionally protected right when the basis was a pattern of severe hostile conduct. Mount Healthy City Sch. Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977). The educator in Doyle was not just criticizing the school. His conduct included engaging in a physical altercation with another teacher, arguments with school cafeteria employees, swearing at students, and making obscene gestures to female students. Only in such extreme cases will it be proper to terminate a teacher or professor who exercises freedom of speech.

Call Attorney for Civil Rights of Teachers and Professors Andrew Shubin

For trustworthy advice on questions regarding constitutionally protected civil rights of teachers and professors, call (814) 826-3586 to schedule a free consultation.