See You In Court - October 2025

The beginning of the school year in Nutmeg was peaceful.  But the peace ended in Nutmeg after a prominent political figure was assassinated on a college campus.  Tom Teacher, an English teacher at Median Middle School in Nutmeg, posted several comments on social media expressing the view that the divisive rhetoric of that public figure justified his killing.  Word about Tom’s posts got out quickly, and soon Mr. Superintendent was inundated with calls and emails calling for the termination of Tom Teacher.  Before Mr. Superintendent could meet with Tom Teacher and his representative from the Nutmeg Union of Teachers, however, a parent sent him an outraged email complaining that Paula Pedant, a history teacher at Nutmeg Memorial High School, told her class that she did not regret the killing because sometimes people must reap what they sow.

Mr. Superintendent met with both teachers and their union representatives, and both teachers admitted to the conduct alleged.  Paula Pedant expressed remorse for her comment in class, but Tom Teacher was unrepentant, claiming that the First Amendment protects his right to express his views on the matter.  Mr. Superintendent placed both teachers on administrative leave with pay and without prejudice so that he could talk with counsel and decide on next steps.

Meanwhile, the online edition of the Nutmeg Bugle reported on the comments made by both teachers, which generated a number of social media posts that excoriated the teachers for their insensitive comments.  The members of the Nutmeg Board of Education were brought into the debate when Nutmeg residents sent them emails and texts weighing in on the controversy.  While a few of the communications expressed support for these teachers, most called for the immediate termination of the two teachers, expressing the view that anyone who celebrates the death of another person should not be teaching children.

At the meeting of the Nutmeg Board of Education last night, several parents spoke during Public Comment on the matter, stating that such insensitive posts and statements should not be tolerated.  At the conclusion of Public Comment, veteran Board member Bob Bombast moved to add an item to the agenda so that the Board members could have what Bob described as a “sorely-needed” public conversation on the matter.  Mrs. Chairperson asked if anyone objected, and when no one objected, she told the Board that she was adding the matter to the agenda and gave Bob the floor to start the discussion.

Bob thanked Mrs. Chairperson for exercising the prerogative of the Chair to add the agenda item, and he launched into a diatribe that ended with his saying that he didn’t see how these two teachers could continue in their employment in Nutmeg.  Not wanting to be outdone, several other Board members chimed in, agreeing with Bob that the comments by these teachers cannot be tolerated.  As usual, however, Board member Mal Content was a dissenting voice.  Mal told the Board members that these teachers were simply exercising their constitutional right of free speech and that the Board members should stay out of the debate.

Is Mal correct in his view?  What are the rights of these teachers, and what is the proper role for board members in such matters?

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The United States Supreme Court has addressed the free speech rights of public employees on several occasions.  The traditional view was that, given their public service, public employees were not protected by the First Amendment.  The sentiment was expressed most memorably by Justice Oliver Wendell Holmes in 1892, when while sitting on the Supreme Judicial Cour of Massachusetts he wrote:

The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of this contract. The servant cannot complain, as he takes the employment on the terms which are offered to him.

McAuliffe v. Mayor of New Bedford Massachusetts (1892).  However, in 1968, the United States Supreme Court decided to the contrary that public employees are protected by the First Amendment.  In Pickering v. Board of Education (U.S. 1968), the Court overruled a decision of the Illinois Supreme Court that had affirmed the termination of Mr. Pickering for writing a letter that criticized (in some ways inaccurately) the superintendent and the board of education of the district that employed him as a teacher.  In that case, the Court ruled that speech by public employees is protected by the First Amendment unless the disruptive impact of the speech outweighs the importance of the speech.

Fifteen years later, the Court then elaborated on this principle in Connick v. Myers (U.S. 1983), establishing the general framework for assessing whether the private speech of a public employee is protected by the First Amendment.  First, we must determine whether the speech relates to a matter of public concern; speech by a public employee that involves a purely personal concern or grievance is not protected by the First Amendment.  When such speech does relate to a matter of public concern, we must now apply a balancing test to determine whether the importance of the speech outweighs any disruption it causes, in which case the speech is protected by the First Amendment.

The Court further clarified the rules governing speech by public employees in Garcetti v. Ceballos (U.S. 2006).  There, the Court held speech by public employees that is “pursuant to duty,” i.e., expressed in doing one’s job, is not subject to First Amendment protections.

Applying these rules, we see that the speech of Tom Teacher on social media may or may not be protected under the Connick v. Myers balancing test, depending on the impact of the speech.  By contrast, Paula Pedant’s comments were made “pursuant to duty” as a teacher.  In her case, Mr. Superintendent may decide whether to impose discipline on Paula without applying a balancing test because her speech was not protected by the First Amendment.

Mere exposure to comments by others, whether at a board meeting or otherwise, does not create due process issues for board members.  However, the members of the Nutmeg Board of Education should not have expressed their views on potential discipline for either teacher, which is an administrative responsibility.  If Mr. Superintendent recommends termination of the contract of either teacher, the Board members will sit in judgment on that recommendation, and as a matter of due process they must then act in that capacity as impartial judges.  Accordingly, board members should not comment on such controversies involving teachers, either publicly or privately.  Such comments may invite the question whether the board member can later make a decision impartially.  Prior comment on such matters could be the basis for challenging a termination decision on due process grounds.

Finally, Ms. Chairperson’s response to Bob’s request for a Board discussion of this matter violated the Freedom of Information Act.  Adding items to a board agenda is not the prerogative of the chair.  Rather, under the FOIA an item may be added to the posted agenda only by a two-thirds vote of the board and only at a regular meeting.