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2007 Conference: School law seminar

Attorneys discuss employee speech, electronic documents, other issues

School employee speech is only protected as free speech under the First Amendment to the U.S. Constitution when it is not expressed in connection with the employee's official duties. What is more, the school employee carries the burden of proof in such cases to show that the speech in question was protected. So said attorney Philip H. Gerner III, of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd.

Gerner appeared at the 2007 Joint Annual Conference's school law seminar, held Friday, Nov. 16, in downtown Chicago, sponsored by the Illinois Council of School Attorneys (ICSA). Created in 1987, ICSA is affiliated with IASB and the National School Boards Association.

An annual conference event, the yearly seminar provides Illinois school attorneys with a chance to discuss key legal issues facing their school clients. Included this year were questions on student speech and employee speech, and electronic document discovery.

In regard to employee free speech cases, Gerner said the key is to determine whether the employee speech in question was on a matter of public concern. He said an Indiana U.S. district court ruled in 2006, in Mayer v. Monroe County Community School Corporation, that a teacher's free speech rights were not violated when she was prohibited from expressing her opinions about the war in Iraq during instructional time.

The employee in that case was a probationary teacher at an elementary school in Indiana, serving under a one-year contract. During a classroom discussion of an article about peace marches in protest of U.S. military involvement in Iraq, she voiced the opinion that peace was preferable to war and said she personally supported the peace marchers. When the parents of a student complained, the principal held a meeting with the parents and the teacher – Deborah Mayer – and allegedly prohibited her from discussing peace in her classroom. The principal later issued a memo in which she specifically instructed teachers not to promote a particular view on foreign policy in regard to the war in Iraq.

Several parents also complained about Mayer's teaching techniques and alleged poor communication skills with students and parents. As a result of parent complaints and classroom observations, the principal recommended that Mayer's contract not be renewed. When the school board followed this recommendation, Mayer sued, alleging, among other things, that school officials had retaliated against her by firing her for discussing her opposition to the war in Iraq, violating and chilling her First Amendment right to free speech.

For such a free speech claim to prevail, the district court noted, a public employee must establish that he or she was speaking "as a citizen upon a matter of public concern." While admitting that the war in Iraq is a matter of public concern, the court found that Mayer was acting as an employee rather than a citizen when she spoke, because her speech took place during instructional time in the classroom and was directed at her students. Therefore, her speech was not protected by the First Amendment.

Gerner also reminded fellow school lawyers about another 2006 case, Battle v. Board of Regents for the State of Georgia, decided in the federal 11th Circuit Court of Appeals. In the ruling on that case, he said, the court found that "speech pursuant to an employee's duties is not a matter of public concern." Thus an employer may take disciplinary action against a school employee for such speech.

On another seminar topic — the threat of "e-discovery" — attorney Steven M. Puiszis, a partner in the firm of Hinshaw & Culbertson, LLP, and President of the Illinois Association of Defense Counsel, urged school lawyers to familiarize themselves with new federal rules of civil procedure involving electronic discovery in connection with litigation. The new rules issued on Dec. 1, 2006 should prompt private companies, as well as entities such as school districts, to take a fresh look at their electronic document retention procedures, Puiszis said.

Puiszis noted that U.S. firms spent $1.2 billion on outside e-discovery services in 2005, and that 93 to 97 percent of today's information is generated electronically, although most of that information will never be sought by a court of law in connection with any litigation.

Puiszis said the new rules on electronic discovery allow some "limited safe harbor" against court-imposed sanctions for schools faced with litigation that act in good faith. But in order to attain that safe harbor, the "good faith" requirement means schools must impose a "litigation hold" on routine or automatic document destruction. "E-mail auto-delete features and backup tape rotations must be suspended," Puiszis said.

Puiszis covered much of the same ground as a February 2007 Newsbulletin article he co-authored with IASB's General Counsel, Melinda Selbee, "Keep track of your schools' electronic documents." That article contains more detailed suggestions from Puiszis on what school districts need to be doing in response to today's e-discovery concerns.

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