About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

97 Ky. L.J. 37 (2008-2009)
Silence at the Schoolhouse Gate: The Diminishing First Amendment Rights of Public School Employees

handle is hein.journals/kentlj97 and id is 45 raw text is: Silence at the Schoolhouse Gate:
The Diminishing First Amendment Rights
of Public School Employees
Neal H. Hutchens'
INTRODUCTION
THE Supreme Court's statement that along with students, teachers
do not shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate' is an often discussed premise in
federal court decisions.3 But, the ever increasing reality is that teachers,
along with administrators and other staff in public schools, increasingly
possess diminished protection under the First Amendment.4 Garcetti v.
Ceballos,5 which dealt with the First Amendment speech rights of all public
employees,6 marks the erosion of First Amendment rights for public school
administrators and staff and may curtail the First Amendment rights of
I Assistant Professor of Law, Barry University School of Law; J.D. 2002, University
of Alabama School of Law; Ph.D. in Education Policy, University of Maryland, 2007. As a
former legal intern to the U.S. Department of Education's Office of the General Counsel and
having served previously as a legislative fellow to the U.S. Senate's Committee on Health,
Education, Labor, and Pensions, the author has long been immersed in education law and
policy. He would like to thank Megan Bittakis and Heather Kolinsky for their comments and
suggestions on this Article.
2 Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (It can hardly
be argued that either students or teachers shed their constitutional rights to freedom of speech
or expression at the schoolhouse gate. This has been the unmistakable holding of this Court
for almost 50 years.).
3 See, e.g., Lee v. York County Sch. Div., 484 F3d 687, 693 (4th Cir. 2007), cert. denied, 128
S. Ct. 387 (2007); Downs v. L.A. Unified Sch. Dist., 2z8 E3d 1003, ioo9 (9th Cir. zooo); Ward
v. Hickey, 996 F2d 448,452 (1St Cir. 1993).
4 See generally Donald F. Uerling, Academic Freedom in K-12 Education, 79 NEB. L. REv.
956 (2ooo) (discussing how despite some early decisions supportive of academic freedom
for teachers, courts have generally, with some exceptions, upheld the authority of school
officials to control the classroom communications of teachers); Kevin G. Welner, Locking Up the
Marketplace of Ideas and Locking Out School Reform: Courts' Imprudent Treatment of Controversial
Teaching in America's Public Schools, 50 UCLA L. REv. 959 (2003) (noting how more recent
legal decisions have often tended to deny or severely restrict First Amendment rights for
teachers).
5 Garcetti v. Ceballos, 547 U.S. 410 (2oo6).
6 For a discussion of the impact of Garcetti on public employees in general, see Sheldon
H. Nahmod, Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v.
Ceballos, 42 U. RICH. L. REV. 561 (2008).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most