Should an Educational Leader's Testimonial Speech be Protected?

Imagine that you are an educational leader hired to head up an important community college program for at-risk youth.  In your first days on the job, you do what any good leader does and audit the books.  Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work.  You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator.  You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working.  She not only refuses, but also threatens your livelihood.  You are not a coward, so you fire her.  Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud.  Soon after, you are fired. 

You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern.  But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos.  In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline."  Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline.  The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties."  Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job. 

Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand?  In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above.  Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti.  The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide. 

Title IX and Teen Parents

Title IX of the Education Amendments of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.” Since the passage of Title IX, school officials have been scrambling to ensure a documentable degree of equity between genders in every aspect of public school governance.

With that backdrop, I would like to summarize a conversation I recently had with a doctoral student. This female student was a teen parent who gave birth to her first child while in high school. She is now a principal of a school for students that are either pregnant or caring for their own children while completing the requirements for graduation (often referred to as “mothers school”). Students that attend her school, all of whom are female, choose this alternative setting for a number of reasons: access to free childcare while in school, specific emotional support provided to teen mothers from both the staff and the other students, and a learning environment that validates teen mothers’ adjusted priorities.

However, a majority of those who choose attend alternative schools for teen mothers also choose to loose access to a number of services found at traditional secondary schools. For example, most schools for teen mothers do not provide their students access to advanced curriculum such as honors or advanced placement courses. In addition, those attending mother schools seldom have access to transportation services through the school district.

As I have processed these facts, I have come to the conclusion that teen mothers are being forced to choose between access to an advanced curriculum and childcare. For some teen mothers, there is no choice – childcare will always win out over other factors. The irony, and potential legal pitfall, is that the teen fathers are not being asked to make similar choices. I recall a situation when I taught high school in Utah where two juniors had a relationship that resulted in the female student becoming pregnant. She gave birth over the summer and finished her schooling in an alternative setting her senior year while raising her newborn. The father, on the other hand, was the starting fullback for the football team in the fall and graduated with his peers. The differences in how these two students were treated stemmed exclusively from their gender.

I feel like teen mothers are being excluded from participating in advanced curriculum options based on their gender and this practice appears to violate Title IX. The evidence for the claim of discrimination based on gender lies in the fact that teen fathers are not facing the same difficult choices – childcare versus AP calculus.

Virtual Snow Days

Living in Michigan, the articles about virtual snow days have caught my attention this year. We have been pounded by bad weather this season, a combination of extreme low temperatures and higher than average snowfall. My kids have already missed 8 days due to bad weather, and some districts have missed more days. 

Michigan law provides many opportunities for virtual learning for K-12 students. The legislature has authorized 5 virtual charter schools and all public school students can take 2 virtual courses per marking period (Mich. Comp. Laws 388.1621f). For more flexibility, school districts can apply for students to receive seat time waivers, so they are able to receive their education without physically attending school. Yet, the Department of Education hasn't yet addressed the idea of virtual snow days. 

Are virtual snow days possible in Michigan? Probably not.

School districts are required to provide 1098 hours of instruction over at least 175 days to K-12 students. To count instructional hours for a particular building, pupils and certified teachers must be present and engaged in instruction. This instruction must be scheduled in advance and be available for the entire student population (MDE, Pupil Accounting Manual 2013). The requirement that pupils and certified teachers be "present" most likely means "physically present" because it is referring to counting hours per school building. Therefore, Michigan would have to change its Pupil Accounting Manual to allow for virtual attendance during snow days in order for this to be possible. 

As Michigan continues to develop its online educational practices, I think this is something to seriously consider as an option to allow students to learn in a way that is less disrupted by the state's sometimes extreme weather conditions.

Here is an article about the practice in New Jersey: http://www.cnn.com/2014/02/23/living/snow-days-virtual-schools/ The article describes the practice but says schools don't know if the instructional time will actually count towards the State's requirements.