Employee Speech, Plus Staff & Religious Accommodations in Schools

This past February, at the WASDA New Superintendents Academy, Kirk Strang presented a legal update on addressing practitioner HR issues in Wisconsin schools. The presentation tackled five major topics:

• Part 1: The Teacher Contract
• Part 2: The Right to a Representative, Management & Supervision
• Part 3: Use of Administrative Leave, and Protected Activity
• Part 4: Employee Speech, as well as Staff & Religious Accommodations
• Part 5: Employees & Technology

In this installment of the series, we’re covering the following …

• Employee speech, including:
  • Details regarding First Amendment rights for teachers
  • Employee speech outside the classroom
• Staff and religious accommodations, including:
  • Religious discrimination in schools
  • Granting of religious accommodations

The goal of this series is to share the details of Kirk’s legal update in an effort to help Wisconsin superintendents and districts be up to date, and better prepared, for these types of practitioner HR issues.

Let’s get started with Part 4 …

Employee Speech

SCENARIOS

1. A teacher is presenting his/her personal viewpoint in the classroom instead of, or in addition to, the curriculum.
   1. The First Amendment does not entitle a teacher to advocate for his/her own views during class time. A teacher can be disciplined for doing so.
   2. As a general rule, and as our Seventh Circuit Court of Appeals has observed, teacher speech is not so much free as it is subsidized. When a teacher stands before a captive body of students, they are being paid to say what the district directs them to say in order to deliver the curriculum that the board has authorized and approved. There is no constitutional right at issue.
2. An employee’s speech outside of the classroom is causing disruption in the workplace.
   1. Our federal courts have established a two-part test to determine when a public employee’s speech, outside of the classroom, is protected by the First Amendment. 
      1. Under the Pickering-Garcetti test, a court will first consider whether the employee is speaking a) pursuant to his or her official duties, or b) as a “citizen addressing a matter of public concern.”
      2. If the employee speaks as a “citizen addressing a matter of public concern,” a school district must demonstrate that its interests as an employer outweigh the employee’s free-speech interests.
   2. A district’s interests will generally outweigh an employee’s free-speech interests if the employee’s speech:
      1. interferes with workplace harmony, 
      2. damages working relationships, or 
      3. interferes with the employer’s operations.

   3. The First Amendment also does not protect staff speech that, among other things:
      constitutes a true threat,
      is obscene, or
      indoctrinates students with personal beliefs on religion, politics, or controversial topics.

      NOTE: An employee’s speech may be protected under other laws, such as the right to engage in concerted activity for mutual aid and protection.

EMPLOYEE SPEECH OUTSIDE THE CLASSROOM

1. Application of the Pickering balancing test.

   1. In April 2022, Darlingh, a Milwaukee Public Schools (MPS) employee, spoke at a rally in Madison, where she identified herself as a school guidance counselor for MPS and proceeded to make a number of controversial comments about transgenderism in her school and classroom. Darlingh’s speech was recorded and uploaded to YouTube, prompting an internal investigation that ultimately resulted in Darlingh’s termination.

      Darlingh filed suit alleging that the district violated her First Amendment right to free speech and sought a preliminary injunction to be reinstated to her position. The district, in turn, filed a motion to dismiss Darlingh’s First Amendment claim.

   2. The Court broadly agreed that Darlingh (who appeared at the rally on her own time, on a weekend, and in another city) spoke as a private citizen addressing a matter of public concern. However, when applying the Pickering balancing test, the Court determined that Darlingh’s speech created problems maintaining harmony among coworkers; destroyed the trust and close personal relationships required by her position; and “fatally undermined her ability to do her job as it was defined by her employer.”

   3. Ultimately, the Court found that the district’s interest in maintaining efficiency and effectiveness in its operation strongly outweighed Darlingh’s speech and granted the district’s motion to dismiss.

      Darlingh v. Maddaleni, N. 22-CV-1355-SCD, 2023 WL 2697754 (E.D. Wis. Mar. 13, 2023).

2. Social Media Activity. 

   1. Employees may assume that if they post on social media in their own home and outside of school hours, their speech cannot be tied to their employment with the district. This is a misperception.

      School officials, in particular, are generally viewed as representatives of the district by the community, even during off hours.

   2. In addition, employees’ online presences often blend the personal and professional, such as posting photographs of school events and commenting on school initiatives, which can give their personal speech on the same platform the appearance of endorsement by the district. 

   3. In Munroe v. Central Bucks School District, a school district terminated an English teacher who made derogatory statements regarding her own students via social media. The teacher brought suit against the district for violation of her free speech rights, noting that she made the statements on a private blog.

      The court applied the Pickering-Connick balancing test and concluded that while the teacher may have implicated matters of public concern, her speech interfered with her job duties and caused sufficient disruption amongst students, staff, and the community to warrant restriction.

      Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 476 (3d Cir. 2015).

Staff & Religious Accommodations

RELIGIOUS DISCRIMINATION

1. Groff v. DeJoy, 600 U.S. 447, 143 S. Ct. 2279 (2023).
   1. In Groff, the U.S. Supreme Court increased the legal burden an employer must meet to deny a reasonable accommodation request based on an employee’s sincerely held religious belief. 
      1. Under Title VII, employers must grant religious accommodations unless they cause undue hardship. The Groff Court ruled that an employer must show the burden of granting an accommodation would result in “substantial increased costs” in relation to the conduct of its business in order to deny a requested accommodation. 
      2. The Court expressly declined to go so far as to adopt the employer’s higher burden for denying reasonable accommodation based on an employee disability imposed by the ADA.

   2. To determine whether an accommodation will cause “substantial increased costs,” courts must consider all relevant factors — including the particular accommodations at issue and their practical impact in light of the nature, size, and operating cost of the employer.

      The Court stressed that the “substantial increased costs” standard can take into consideration the effect of the accommodation on the conduct of the employer’s business (not just a financial cost). In most situations, mere complaints from other employees about the impact of the accommodation will not be sufficient to meet the employer’s burden of showing undue hardship.

In our final installment of the series, we’ll wrap up our discussion on addressing practitioner HR issues by diving into employees and technology — specifically privacy standard, sexual harassment, and inappropriate use of computers.

Until then, here are some additional articles that may be of interest:

• School Law Update, Part 1: New Wisconsin Laws Enacted & Proposed
• School Law Update, Part 3: Developments in Federal & Constitutional Law
• School Law Update, Part 5: Wisconsin Decisions