School Can Control What Flags Schoolteachers Hang on Classroom Walls

A short excerpt from the longish Dole v. Connetquot Central School Dist., decided yesterday by Second Circuit Judge Alison Nathan, joined by Judges Michael Park and Maria Araújo Kahn:

Christopher Dolce, Sarah Ecke, and Shinaide McAleavey-Polley are teachers at Connetquot Central High School and “open members of the LGBTQ+ community.” Connetquot Central School District officials ordered Ecke to take down two pride flags that hung on the walls of her math classroom. They also told Dolce and McAleavey-Polley that they could not place pride flag stickers on their classroom doors….

{Under Garcetti v. Ceballos (2006), and its progeny, when public employees’ speech “owes its existence” to their “professional responsibilities,” the Government—their employer—can control the content of that speech without implicating their First Amendment rights.} … [A] public high school teacher’s classroom wall decorations are speech that “owes its existence” to their “professional responsibilities.” After all, teachers decorate their classroom walls as part of their duty to create physical classroom spaces conducive to the curricula they are assigned to teach. Those decorations are thus the Government’s speech, and the First Amendment does not apply to them….

To be sure, the Garcetti Court reserved for another day whether the public-employee speech doctrine “would apply in the same manner to a case involving speech related to scholarship or teaching.” That carveout resulted from concerns that applying Garcetti‘s “official duties” rule in cases involving public university professors would “exil[e] all public-university faculty scholarship and instruction from the shelter of the First Amendment.”

But public university professors “are paid … to speak, and to speak freely, guided by their own professional expertise” in ways that public school teachers are not. As a result, when this Court declined to apply Garcetti to a public university professor’s “teaching and academic writing,” we left open whether Garcetti might nevertheless apply to a public school teacher’s curricular speech. Like many of our sister circuits, we now conclude that it does.

The District, for its part, offers another First Amendment theory. It insists that “speech in the traditional classroom to a captive audience during … instructional time is speech that a reasonable person would perceive to be school-sponsored[.]” … [But t]he problem is not that the students in Ecke’s math classroom are a “captive audience” to her messages, or that her speech took place in a classroom. Otherwise, anything a teacher says or does in view of her students might be placed beyond the ambit of the First Amendment—an application of Garcetti that the Supreme Court rejected in Kennedy v. Bremerton School Dist. (2022). For example, just as Kennedy made clear that a school district may not use Garcetti to “fire a Muslim teacher for wearing a headscarf in the classroom,” Garcetti may not “transform” something like a progress pride flag pin on a teacher’s blazer or a picture of their same-sex spouse “into government speech” simply because the teacher wears that pin or displays that photo in their classroom.

But here, Ecke, Dolce, and McAleavey-Polley’s particular speech at issue—the displays covering the walls and doors of their classrooms—is speech that they are “expected to deliver in the course of carrying out” their jobs. And that speech thus falls directly into Garcetti‘s heartland—whether or not they had a “captive audience” when making it….

Rondiene E. Novitz and Julissa M. Proana (Cruser, Mitchell, Novitz, Sanchez, Gaston & Zimet, LLP) represent defendants. Moran.

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