CAS Legal Mailbag ' 4/13/23

• Jurisdiction: United States,Federal
• Law Firm: Shipman & Goodwin LLP
• Subject Matter: Consumer Protection, Government, Public Sector, Constitutional & Administrative Law, Education
• Author: Mr Thomas B. Mooney
• Published date: 26 April 2023

Originally appeared in the CAS Weekly Newsletter

Recently, the Board of Education in the district where I live and work decided to reconfigure our schools. I think that it is a terrible decision, and it will directly impact my children. The Board's plan has now been submitted to the Town Council, which will vote in the coming weeks on whether to approve the reconfiguration.

As a resident of the town, I would like to speak up on this matter of public concern during Public Comment at the Town Council meeting. However, I work as an assistant principal in the school district, and I am worried about the potential impact of such speech on my employment. Can I, as a member of the community and taxpayer, express my view that the reconfiguration plan is a bad idea? In making any such comments, I would take care not to disclose information about my current position or reveal access to information that is not publicly available. I would speak in general terms, but I would make my concerns clear about the harmful impact this ill-advised plan would have on my children.

Thank you for all Legal Mailbag does to help educators with difficult situations.

Signed,
What Can I Say?

Dear What:

Happily for you, we live in an enlightened age in which the free speech rights of public employees are protected. Historically, public employees were not protected against discipline for their speech or political activity. When Oliver Wendell Holmes served on the Supreme Judicial Court of Massachusetts, the Court rejected a challenge by a police officer who was fired for engaging in political activity, and Holmes famously 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. On the same principle, the city may impose any reasonable condition upon holding offices within its control. This condition seems to us reasonable, if that be a question open to revision here.

McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 29 N.E. 517 (Mass. 1892) (emphasis added).

This view that public employees have no First Amendment protection against retaliation for their speech held true for another seventy-six years until the United States Supreme Court announced...