Freedom of speech is not always absolute. There can be limitations.
An upcoming vote on employee code of conduct, which includes holding staff accountable for public comments that might be considered harmful to the school district, will take place at the next school board meeting, Nov. 14.
“We do not currently have this policy, but it was a recommendation that we do so that employees understand their rights and limitations of their rights,” said BASD Superintendent Katy Pude. “The policy was placed on the agenda at the October meeting for the board to review and to vote on at our upcoming meeting. It came from a recommendation from our labor attorney.”
The context of the upcoming vote by the school board relates to three policies, identical in word and meaning, but differentiated by employment category, which outline common expectations of the district employees.
The policy in consideration, “Freedom of Speech in Non school Settings,” states, The Board acknowledges the right of administrative (300 level), professional (400 level) and support (500 level) employees as citizens in a democratic society to speak out on issues of public concern. When those issues are related to the school district and its programs, however, the employees freedom of expression must be balanced against the interests of this district.
The Board adopts this policy to clarify situations in which an employees’ expression could conflict with the district’s interests.
In situations in which a district employee is not engaged in the performance of assigned duties, s/he shall:
1. Refrain from comments that would interfere with the maintenance of student discipline.
2. Refrain from making public statements about the district known to be false or made without regard for truth or accuracy.
3. Refrain from making threats against co-workers, supervisors or district officials.
Violations of this policy may result in disciplinary action, in accordance with Board policy.
Sam Johnson, assistant superintendent, explained the categories in more detail.
“Three-hundred level policies are for administrative employees; 400 level policies are for professional staff, those that require a certification such as teachers, counselors, social workers, etc., basically, anyone covered by the teacher’s contract; 500 level policies are for classified employees, those that are hourly and do not require a professional certification from Pennsylvania Department of Education, such as bus drivers, custodians, secretaries, aides, mechanics, maintenance, and some others.”
The BASD labor lawyer, Robert D. Zaruta, stated, “Bradford Area School District Policies 320, 420, and 520 are intended to be a helpful reminder to District employees that their First Amendment protections are not without limitation.”
He continued, “Over the last several years, it seems there has been a noticeable uptick in the number of school district employees across the country who have been disciplined or terminated for off-duty speech. It is likely that many of those employees were under the false impression that their off-duty speech was protected.”
However, this is not the case. Off-duty speech is not protected in some situations.
In 2006, the Supreme Court ruled on a case called Garcetti v. Ceballos, creating a categorical rule: “When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
“These policies were placed on the table not to hurt our teachers and staff, but to actually protect them in light of that ruling,” Zaruta explained. “The sole purpose of these policies is to educate District employees on some of the well-established limitations on their speech in the hope that it may prevent precarious situations for employees in the future.”
