E.D. Va. Notes Circuit Split Re First Amendment Protections For Public School Teachers

Per Lee v. York County School Div., --- F.Supp.2d ----, 2006 WL 453460 (E.D.Va. Feb 23, 2006):

The federal courts of appeals have developed at least two competing tests for determining to what extent, if at all, the First Amendment protects speech communicated by a teacher in a public school setting. Chiras v. Miller, 432 F.3d 606, 617 n. 29 (5th Cir.2005) (detailing the circuit split); Cal. Teacher's Ass'n v. Bd. of Educ., 271 F.3d 1141, 1149 n. 6 (9th Cir.2001) (same); Karen C. Daly, Balancing Act: Teachers' Classroom Speech and the First Amendment, 30 J.L. & EDUC. 1, 1-30 (2001) (discussing and analyzing the circuit split); W. Stuart Stuller, High School Academic Freedom: The Evolution of a Fish out of Water, 77 NEB. L. REV. 301, 304 and 328-29 (1998) (same). Some courts of appeals examine teacher speech by applying Supreme Court cases concerning student speech (the "Tinker-Hazelwood " standard). See, e.g., Ward v. Hickey, 996 F.2d 448, 452-53 (1st Cir.1993). Other courts of appeals analyze teacher speech by utilizing Supreme Court cases regarding the First Amendment rights of government employees (the "Pickering-Connick " standard). See, e.g., Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 797-800 (5th Cir.1989).

The Fourth Circuit has adopted the Pickering-Connick approach. See Boring v. Buncombe County Bd. of Educ., 136 F.3d 364, 371 n .2 (4th Cir.1998) (en banc) (explaining that Tinker-Hazelwood involved student speech, but a case regarding teacher speech is a matter about employee speech to be decided under Pickering-Connick ); see also id. at 372-74 (Luttig, J., concurring) (explaining why Tinker-Hazelwood is inappropriate when analyzing teacher speech and that Pickering-Connick is the correct standard); Chiras, 432 F.3d at 617 n. 29 (listing the Fourth Circuit as among the courts of appeals applying Pickering-Connick and rejecting Tinker-Hazelwood ); Cal. Teacher's Ass'n, 271 F.3d at 1149 n. 6 (same); Daly, Balancing Act: Teachers' Classroom Speech and the First Amendment, 30 J.L. & EDUC. 1 at 16 (same); Stuller, High School Academic Freedom: The Evolution of a Fish out of Water, 77 NEB. L. REV. at 328 (stating that the Fourth Circuit held "that Hazelwood did not supply the controlling test, but that the Pickering/Connick line of cases should be applied").