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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).

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