Home -> Law Blog Directory -> Labor & Employment Law Blogs -> New York Public Personnel Law

Labor & Employment Law

: New York Public Personnel Law

Demanding a letter of apology claimed to impinge on the individual?s constitutionally protected speech

By Harvey Randall, Esq.

Demanding a letter of apology claimed to impinge on the individual?s constitutionally protected speech
Wildman v Marshalltown School District, CA 8, 249 F.3d 768

The general rule is that a public employee's right to free speech under the First Amendment on the job is protected with respect to speech involving matters the public interest. In contrast, a public employee's speech concerning matters concerning his or her personal interests is not protected by the First Amendment.

In considering "free speech cases" involving public employees the courts have sometimes commented that "matters of public interest" are to be distinguished from "matters in which the public is interested."

In Connick v Myers, 461 US 138, the US Supreme Court indicated that federal courts usually will not consider retaliation allegations based on an employee's claim of free speech where "only matters of a personal interest" to the employee, in contrast to "matters of public concern," are involved. The US Circuit Court of Appeals, Eighth Circuit, has apparently applied this rationale in deciding the Wildman case.

The Circuit Court ruled that the school's insisting that Rebecca Wildman apologize to her teammates for writing a letter to them criticizing her coach as a condition to her reinstatement to a school athletic team did not violate her First Amendment rights.

Wildman, than a sophomore at Marshalltown High School in Marshalltown, Iowa, was a member of the school's basketball team. When her expectation of being selected to play on the girls varsity basketball team did not materialize, she wrote a letter to her teammates that included the following sentence:

"It is time to give [the coach] back some of the bullshit that [the coach] has given us."

School officials said that the letter was disrespectful and insisted that Wildman apologize to her teammates. Given twenty-four hours to comply, Wildman was advised that if she did not do so, she would not be allowed to return to the team. Because Wildman refused to apologize she was not allowed to practice with the team or play in the season's remaining six games.[1]

Essentially Wildman argued that the First Amendment bars the school from disciplining her for distributing a letter, which was a personal communication to other students containing her personal expression. Citing the Supreme Court's decision in Tinker v Des Moines Independent Community School District, 393 US 503, the Circuit Court acknowledged that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

In Tinker, high school students attempted to wear black armbands on school property to symbolize their protest against the Vietnam War.

The Supreme Court struck down efforts by school authorities to discipline the students for this expression of opinion by suspending the students from school until they returned without their armbands. The court said that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."

However, the court observed that "this right to express opinions on school premises is not absolute." It said that it was well within the parameters of the school officials' authority to prohibit the public expression of vulgar and offensive comments and to teach civility and sensitivity in the expression of opinions.

The court cited Bethel School District No. 403 v Fraser, 478 US 675, as its authority for this view. In Bethel the Supreme Court sustained the punishment of a student for a speech laden with sexual innuendoes at a mandatory school assembly.

The Circuit Court noted that Marshalltown had a handbook for student conduct as well as a Marshalltown Bobcat Basketball Handbook. These materials were distributed to Wildman and her teammates at the start of the season. Both handbooks indicated that "disrespect and insubordination will result in action at the coach's discretion." The court's conclusion: Wildman's letter, containing the word "bullshit," in relation to other language in it and motivated by her disappointment at not being selected to play on the varsity team, constitutes insubordinate speech toward her coaches.

Deciding that Wildman's speech called for an apology, presumably because her speech was based on "personal interests" -- her not being selected for the varsity basketball team -- rather than a matter of public interest, the Circuit Court ruled that she failed to demonstrate that her Constitutional right to free speech was violated by the school district's action.

__________________

[1] Wildman and her family moved to another school district after the school year ended.

Full post as published by New York Public Personnel Law on January 24, 2008 (boomark / email).