CAS Legal Mailbag ' 12/8/22

Published date13 December 2022
Subject MatterConsumer Protection, Government, Public Sector, Constitutional & Administrative Law, Education
Law FirmShipman & Goodwin LLP
AuthorMr Thomas B. Mooney

Originally appeared in the CAS Weekly Newsletter

Dear Legal Mailbag:

Season's greetings! I love the holidays as much as the next guy. But this year I have a problem on which I need guidance from Legal Mailbag.

I am the principal of a K-5 school, and we acknowledge the holiday season in various ways, including red and green ribbons and a holiday tree in the lobby. But we live in a diverse community, and I want to go easy on the Christmas references. Many families in my school do not celebrate Christmas, and I want all children to feel welcome in our school.

One of the teachers in my school is not as sensitive, and she came in last week and went all out in decorating her room for the holidays. She hung green and red bunting up throughout her room, she put up posters on the classroom walls of Santa, various elves, and each of the reindeer that pull Santa's sleigh, and she even put a small ceramic Christmas tree on her desk.

I met with the teacher and told her that she must take down all the holiday decorations in her classroom. I expressed sympathy for the time she spent in displaying (and now taking down) the decorations, but I explained that her over-the-top decorations have to go because they could make some of her students uncomfortable.

Rather than simply comply, the teacher went all constitutional on me, claiming that I was violating her free speech rights as protected by the First Amendment. She explained that she was just expressing her joy about the Christmas holiday, which she claimed is protected speech. She was polite about it, but she was also clear that she would not be removing the decorations from her classroom until after Three Kings Day, which is January 6 this year. Is this teacher correct in her claim that she can deck her room out with Christmas decorations?

Signed, Bah Humbug

Dear Humbug:

Depending on the facts and circumstances, the teacher is likely not correct. The classroom is a place of work, and classroom displays are generally part of one's job responsibilities. As a faithful reader of Legal Mailbag, you probably recall that public employees do not have First Amendment protection of their speech when it is "pursuant to duty," i.e., when their speech is part of their job. Garcetti v. Ceballos (U.S. 2006). Unless teachers are given carte blanche in decorating (or not decorating) their classrooms, it is fair to consider their actions in decorating their classrooms as job-related and, as such, subject to reasonable employer...

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