'Open and shut' free speech, experts say on teacher investigated on Israel-Hamas war letter

An email from a Palm Beach County elementary school teacher to school district officials about the Israel-Hamas war has resulted in her being placed on paid administrative leave after outcry from a state lawmaker.

But constitutional lawyers and free speech experts say her note, which urged the school district to "publicly recognize the Palestinian community" in its communications about the conflict, is an "open-and-shut" case of protected speech.

"Whether you agree with those who raise concerns about Palestinian rights or disagree with them does not matter as far as the First Amendment is concerned," said Jim Green, a West Palm Beach attorney and former state leader of the American Civil Liberties Union. "Everyone is entitled to speak freely about matters of public concern."

The elementary school teacher works with gifted fourth- and fifth-grade students, according to district records. The school district is investigating her. She did not respond to requests for comment.

On Nov. 1, she sent an email to Superintendent Mike Burke and school board members highlighting the deaths of Palestinians in the Gaza Strip and a 6-year-old Palestinian American boy stabbed to death in Illinois. "Parents can only effectively engage in conversations with their children about the importance of respect, empathy, and the harmful consequences of prejudice if they understand that the Palestinian people in Gaza are being violently and indiscriminately massacred," she said.

The note was in response to an Oct. 10 message from Burke sent days after the Hamas attack to district staff and families that said the school district stresses "the values of respect, tolerance, and inclusivity."

"We are committed to safe and secure schools that foster a welcoming environment for all students, regardless of their background or beliefs," the letter said. "Antisemitism, like any form of discrimination or hatred, has no place in our schools or community. Our schools will not tolerate antisemitism, and we will take appropriate action to address and prevent any instances that may arise."

The school district did not answer questions on Oct. 11 about whether it had seen any incidents of antisemitism or Islamophobia since the attacks. It also did not answer questions about why Burke sent the message or why it did not include a reference to Islamophobia.

After the teacher sent the note to school leaders, Rep. Mike Caruso, a Republican from Delray Beach, sent a letter to be read into the record at a Nov. 15 school board meeting calling for the teacher's suspension. Caruso wrote that the teacher's letter and social media posts amounted to "disgusting antisemitic genocidal rhetoric."

Caruso accused the teacher of posting "from the river to the sea" on her Facebook page, a pro-Palestinian slogan that Israel’s supporters say is antisemitic and a call to destroy the state of Israel.

But as of the day of Caruso's letter, her public social media profiles did not contain the slogan, and her Facebook profile remains locked down on "private" mode. Caruso did not return a request for comment.

Muslim leader says 'double standard' exists in speech on conflict

Since the teacher has been placed on leave, president of the South Florida Muslim Federation Samir Kakli has called out what he says is a "double standard" for free speech on the Israel-Hamas conflict.

"Look at what the teacher said in this statement, (and) compare that to other statements that have been made by elected public officials on the other side," Kakli said.

Kakli referred to an incident on the state House floor Nov. 7 when Rep. Michelle Salzman (R-Pensacola) said, "All of them," after Angie Nixon (D-Jacksonville) asked: "How many (dead Palestinians) will be enough?"

Salzman later said she was referring to Hamas militants, not Palestinian civilians.

"Where is the outrage against Michelle Salzman?" Kakli said, adding that there is instead outrage over "this teacher who was asking for fairness and balance from the school district and leadership to protect Palestinian and Muslim students."

Though the teacher is on paid leave and has not lost her job, constitutional attorney Enrique Armijo, a law professor at Wake Forest University, said "it's not even a close question" of whether her letter to the superintendent was within her First Amendment rights.

"I think what’s really happening here is that the school is feeling heat from this state rep. (Caruso)," he said. "They already know, or will learn and should learn, that this is clearly protected speech."

What is free speech for school employees?

First Amendment scholars and attorneys use two questions derived from the Supreme Court's 1968 decision in Pickering v. Board of Education to test whether freedom of speech applies in cases that involve public employees such as school teachers:

• Did the employee speak out on matters of public concern?

• Do the free speech rights of the government employee outweigh the employer's interest in a disruption-free workplace?

In both questions, Green, Armijo and University of Santa Clara law professor Margaret Russell were unanimous in their opinion that the teacher's letter constitutes protected speech.

Armijo said the Israel-Hamas war is "one of the most debated and contested issues in the world."

"Any court would find that this was a matter of public concern," he said.

The second part of the test deals with whether an employee's free speech disrupts the workplace, although not all workplaces are created equal.

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Private employees do not have a constitutional right to free speech while at work, and people employed at will can be dismissed for almost any reason.

But public employees, such as school teachers and government workers, do have a right to free speech in the workplace as long as it doesn't disrupt the efficient operation of the agency. As such, school districts have to weigh employees' rights to free speech against their need to run schools and government entities safely and effectively.

The tone and audience of the teacher's letter are important in answering that question, Russell said. If the teacher had threatened other employees or managers, the letter could have been deemed disruptive to the workplace.

"But she wasn’t threatening, she wasn’t sabotaging or saying she was going to talk about this issue in the classroom," Russell said. "She wasn’t insulting anyone. That is, at its core, political speech."

Political speech is often referred to as the most protected speech to ensure laws do not limit Americans' right to criticize the government. That right is "central to the meaning of the First Amendment," according to constitutional scholars at the University of Baltimore.

Russell pointed out that the teacher's letter was privately addressed to top school board officials and not shared in a lesson to students or in a flyer passed out in class.

"Based on my understanding, this teacher absolutely has a free speech right, which is being trampled upon," Russell said.

Read the teacher's Nov. 1 letter below:

Good Afternoon Superintendent Burke and School Board Members,

I am an employee of Palm Beach School District and I am writing to you in regard to the ongoing devastation in the Middle East.

Mr. Burke, in your last email regarding the topic on October 10th, you reminded our District that "we stress the values of respect, tolerance, and inclusivity" and encouraged parents to engage in conversations with their children about the importance of respect, empathy, and the harmful consequences of prejudice. For this, I commend you.

However, the atrocities in Palestine, specifically Gaza have not stopped. Today marks the 25th day of constant bombardment on innocent Palestinian civilians with a death toll at over 8,000, of which 3,500 are children.

As an educator of our community's children, I implore you to uphold the stress on the "values of respect, tolerance, and inclusivity" for the Palestinians in our community during this devastating time. Parents can only effectively engage in conversations with their children about the importance of respect, empathy, and the harmful consequences of prejudice if they understand that the Palestinian people in Gaza are being violently and indiscriminately massacred.

On October 14, Wadea Al-Fayoume, a six year-old boy, was stabbed 26 times at his home in Chicago by his family's landlord as a result of hate crime due to the family being Muslim and Palestinian. Our community must be properly informed about the devastation happening to Palestinians to avoid such hate and evil.

In addition, I would like to make something very clear: The American voices speaking up for the freedom of Palestine and calling for a ceasefire, including countless Jewish voices, are voices for humanity. This is not a matter of religion, skin color, or race. This is a matter of humanity. We as humans are standing up for human rights.

Every morning for the last 25 days, I am waking up to first-hand accounts online of Palestinian civilians being killed. Palestinian parents crying out because their children were killed and dismembered by the bombing. Palestinian children crying out because their parents were killed. Doctors treating patients on the floor of hospitals with no anesthesia and no electricity, just the flashlight from a phone. I, amongst many Americans, Arab and non-Arab, mourn these losses and feel helpless and in awe at what we are witnessing.

So again, I am pleading with you to please publicly recognize the Palestinian community by speaking up for humanity and encourage our community to show understanding and empathy to the Palestinian people.

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Katherine Kokal is a journalist covering education at The Palm Beach Post. You can reach her at kkokal@pbpost.com. Help support our work, subscribe today!

This article originally appeared on Palm Beach Post: Was Florida teacher's letter on Israel-Hamas war protected free speech?