Supreme Court Holds that First Amendment Right to Petition Government only Applies to Matter of Public Concern for Government Employees

The Supreme Court has held that in order for the actions of a public employee to qualify for protection under the First Amendment’s Petition Clause, it must relate to a public concern. In the case of Borough of Duryea v. Guarniere, the Court ruled that the action of filing a union grievance related to a police chief’s alleged improper termination and changes in duties was not a protected activity and, thus, actions taken by the employer in response to the was not retaliation for exercising First Amendment rights.

The Court explained that government employees can act as citizens and, when discussing public concerns, could engage in petitioning the government and that such actions would be protected under the First Amendment. However, when an employee’s complaint relates to the employee’s own duties, that is not a matter of public concern and, thus, not protected. As the Court explained, “The right of a public employee under the Petition Clause is a right to participate as a citizen through petitioning activity, in the democratic process. It is not a right to transfer everyday employment disputes into matters for constitutional litigation in the federal courts.”


The Court explained in determining whether a particular activity was of public or private concern, the whole record regarding the content, form and context of the petition needed to be reviewed and the forum in which it was raised needed to be considered.   


The Third Circuit Court of Appeals has now ruled in two cases I discussed in a previous blog entry about disciplining students in school for out of school speech. Both cases, Layshock v. Hermitage School District and J.S. v. Blue Mountain School District involved students who created fake MySpace profiles of their school principals outside of school that contained false and, at the very least, suggestive information about the principals. However, in one case the Court found disciplining the student was allowed, but in the other it violated the student’s First Amendment rights. The Court focused in both cases on the issue of substantial disruption in the school setting or the potential for the same. 

In Laystock, the Court found it particularly concerning that a school should be able to discipline a student for speech that occurs outside of the school setting, and found no evidence in the case to establish that there had been a substantial disruption in the school setting as a result of the profile. Interestingly, it is not suggested in the opinion that the school believed a substantial disruption was likely to occur if it failed to act.  The Court found that the school could not discipline as there was no substantial disruption.


In J.S., the information contained in the profile was more vulgar than in Laystock and there was testimony that there was “a severe deterioration in discipline” in the school. The Court notes that the actual disruption was not sufficient itself to justify the discipline, but rather the immediate effect the profile had in the school setting and that a substantial disruption was reasonably foreseeable if the school did not act based upon what had been seen to date did. Accordingly, the Court found that discipline was permitted.   


Thus, it appears that discipline may be given for out of school speech if that speech causes a substantial disruption in the school setting or if school officials can explain what they saw was happening and show that if they failed to act, there would likely be a substantial disruption.    


In a case out of the Northern District of California, Sheldon v. Dhillon (N.D.Cal. Nov. 25, 2009), a court has held that teachers may enjoy First Amendment Protections for things they say in class. In Sheldon, a community college teacher alleged that she was terminated from her employment as a result of an in class discussion regarding heredity and homosexual behavior. While there was significant dispute over what was actually said during the class discussion, the court found that the teacher had First Amendment protections for her speech and cited to several other court decisions that held likewise, including decisions involving both college level and school age level teachers. However, the court cautioned that an employer could discipline an employee, despite any First Amendment concerns, if they could show that the discipline was “reasonably related to legitimate pedagogical concerns.” The lesson seems to be that a teacher’s speech in the classroom is protected, but if teachers start saying things that might be clearly inaccurate or outside the scope of instructional speech, an employer may be able to discipline and that determination may be very fact specific.  

Religion in Public Schools - A Review of Some Recent Cases

This summer has seen several opinions from around the country on the issue of religion in public schools.  Here is a brief synopsis of several cases.


In the case of Roark v. South Iron R-1 School District, the Eight Circuit Court of Appeals upheld in part a decision that barred a school district in Missouri from allowing representatives of Gideons International from distributing Bibles to fifth graders during the school day, a thirty year old tradition.  While decision to end the practice is certainly not shocking, the decision does offer some insight to school districts that are faced with a situation of having old traditions that need change.  In light of the lawsuit about the Bibles, the local school district adopted a new policy related to the distribution of literature in its schools, which was also challenged.  The District Court, seeing a tradition of Bible distribution, held the new policy was done for the purpose of promoting religion.  However, the Eight Circuit disagreed and stated that the new policy was facially neutral, applied to all groups that wished to distribute literature in the schools and had not yet been put into practice.  Thus, districts faced with attempting to adopt policies to change outdated practices can do so, if the policy is facially neutral, applies to all group and, when put into practice, is applied in a content neutral manner.


In Christian Legal Society v. Eck, it was held that a public law school may properly withhold funding from a religious group that prevents membership on the basis of religion and sexual orientation.  In Eck a public law school provided funds through a mandatory student activities fee, but had policies that required groups that accepted the funds must be open to all students and not discriminate on the basis of, among other things, religion and sexual orientation.  The Christian Legal Society required members affirm a statement of faith that would exclude non-Christians and homosexuals from membership.  The law school refused to provide the group funding, but did allow them access to school facilities and all other law school services that other groups had access to.  The Court upheld the decision of the law school finding the policy was neutral, both on its face and its application, and that the school allowed students in the group access to all other services available to other groups.  This case is another reminder that policies and practices must be neutral to the issue of religion to stand up in court.


In Corder v. Lewis Palmer School District No. 38, the Tenth Circuit Court of Appeals upheld the requirement by a school district that students speaking as valedictorians at graduation provide their speech to the administration for approval and could be disciplined if they sway from the submitted speech.  In this case, a student submitted her speech, but then deviated from it when the speech was given by inviting the audience to find out more about a relationship with Jesus Christ.  The student was required by the school to issue a public apology prior to receiving her diploma for any offense the statement may have caused for deviating from the speech she submitted. The Court reasoned that graduations are a school activity over which the school could exercise control and it had the ability to have more control over the activity, as opposed to speech not supported by the school.  With the analysis, it would be interesting to see if the student had simply yelled this statement out if the speech would be protected.  Nonetheless, the lesson for schools is that if you sponsor the activity, you are able to have more control over what is said. 


Finally, a little closer to home in Busch v. Marple Newtown School District, the Third Circuit Court of Appeals upheld the action of a school district which would not allow a parent to read scripture as part of a presentation to her child’s class.  The presentation was part of a week long project in which each student was the student of the week and one component was that the parent of that student was allowed to present something to the class.  The Court held that given the student was in kindergarten and the students in the class were required to be there, the presentation could appear to be an endorsement of religion.  In addition, because other parts of the project allowed the student to voice his religious views, for example he made a poster that included among other things a drawing of his church and the statement that he enjoyed going to church, the decision of the school was not based on discriminating against the parents’ religion.     


More confederate flag nonsense

Once again, it appears that some racial bigots attempted to cloak themselves and the confederate flag with First Amendment protection.  The courts did not let them.  Click here for the Eighth Circuit case.  Does anyone get the sad irony in all this?

Lewd, but not too lewd: discipline for off-campus speech probably depends on degree of offensivness

The blog has been off for a while, but now guest blogger Tim Gilsbach, starts off with the first a series of new entries.  This one brings to mind Justice Stewart's remark that he knows pornography when he sees it by showing that offensive speech is, apparently, no less subjective.  For educational agencies, this lack of bright line clarity, means an honest, well-documented, entire-circumstances approach is required for any discipline, and that school lawyers will continue to be busy with speech disputes.  And now, onto Tim's entry. . . .

 In two recent cases, the different federal district courts in Pennsylvania have considered on-line speech by students regarding facility members that occurred off campus, but nonetheless impacted the school setting. However, the courts reached differing conclusions on whether the speech was protected under the First Amendment, leaving school districts to guess when they can or cannot discipline the student for the conduct. A review of these two cases is illustrative of the problem.

First, in the case of Layshock v. Hermitage School District, 496 F. Supp. 2d. 587 (W.D. Pa. 2008), in the Western District of Pennsylvania, a student at home created an on-line parody profile of his high school’s principal on On the profile, the student attached the principal’s picture, which he copied and pasted from the district’s webpage. The profile also included a question and answer portion of answers the site claimed came from the principal, including answers that indicated that the principal kept a keg behind his desk, smoked a “big blunt” and referenced a “big hard on” as his last date. The profile also described the principal’s sister as a “big whore” and “big steroid freak.” The profile also indicated that the principal was too drunk to remember his own birthday. The profile was shared with other students at the high school and eventually was seen by most, if not all, of the students at the high school. At the same time, there were three other Myspace profiles of the principal that were also unflattering and contained even more vulgar and offensive statements and, apparently, were created by other students. The principal spent a significant amount of time the week of the postings addressing this issues and the resulting disruptions they caused within the school, but could not identify which the four posting he spent time addressing. The student was disciplined for violating various provisions of the student handbook in form of a ten day suspension. 


The Layshock court noted that district could limit speech where it interferes with the learning environment, but noted that it was much more limited in its ability to address speech that occurs outside the school setting or as the court put it outside the school yard. The court went on to explain that when dealing with conduct outside the school setting, the same standard applies as would in the case of any other public official attempts to regulate speech, which imposes strict limits on the ability to regulate. Accordingly, the court held that the speech was protected and, thus, the District violated the student’s rights under the First Amendment by disciplining him.


In the case of J.S. v. Blue Mountain School District, a case decided by the Middle District Court of Pennsylvania, another judge reached the opposite conclusion. 


In J.S., the student created a MySpace profile that indicated the principal was a pedophile and sex addict. Just as in Layshock, the student created this profile outside of school and also used the principal’s picture from the district’s webpage. The student in J.S. was also disciplined and claimed First Amendment Protections. The court started with the proposition that, simply put, lewd, vulgar, indecent and plainly offensive speech are not protected in the school setting. The court further indicated that the difference between off-campus and on-campus speech has become more blurred with advent of the internet and other technology. In addition, the court looked at the Layshock case and explained that the profile in that case was far less vulgar or offensive that the one in the case before it. Thus, the court found the speech was not protected and that the student could be disciplined without offending First Amendment right. 


It is expected that the Third Circuit Court of Appeals will be called upon to sort out these two cases, or similar cases, at some point. However, for now it appears that students are free to be lewd without discipline in this context, so long as they don’t get too lewd, and leaving school personnel to guess when speech is lewd but so lewd as to not be protected speech.