Were fired Waukesha teacher Melissa Tempel's First Amendment rights violated? Experts weigh in

The recent firing of former Waukesha first-grade teacher Melissa Tempel has raised questions about the relationship between the First Amendment and employer policies.

The Journal Sentinel spoke with experts with knowledge of the First Amendment, as well as Tempel's lawyer, to provide their perspectives on the Waukesha School Board's decision to fire Tempel over her tweets criticizing the district banning the song "Rainbowland" from a school concert.

The ACLU of Wisconsin declined to comment for this story. Christina Katt, the attorney for the district, did not respond to a reporter's emails or phone calls.

There's a difference between free speech rights for public employees versus private, the experts say. And while public employees have more free speech rights than private employees, there are specific tests that may apply depending on the circumstances of the speech.

So, did the school board violate Tempel's constitutional rights, as she and her attorney have argued? Here's what the experts say.

Waukesha board said teacher's tweets violated policy

During the July 12 hearing that ended in Tempel being fired, Katt argued that Tempel's decision to tweet her criticism was a violation of district policy. The district's superintendent, James Sebert, testified that Tempel should instead have consulted with her direct supervisor, Heyer Elementary School principal Mark Schneider, and then gone up the chain of command.

Katt said that Tempel's actions caused "substantial disruption and safety concerns" that led to increased security at Heyer Elementary due to the school receiving "hundreds of emails, calls, voicemails, many of which contained vulgar, obscene and threatening language" and diverted district resources to responding to media inquiries.

Tempel's attorney, Summer Murshid, argued that Tempel's First Amendment rights were violated, as she said Tempel made the tweet while she was off duty on her personal social media account. Tempel herself said she was only trying to express her personal viewpoint when making her tweet.

After the hearing, Murshid said, "This is not a case about culture wars or rainbows. It's a case about constitutional rights, and Miss Tempel has them like every other person in this country. I think we are moving forward with next steps and Miss Tempel looks forward to vindicating her rights in federal court."

Murshid said she didn't have an exact timeline for when the lawsuit would be filed, but said it could be within the next month.

These are the differences in free speech in public versus private employment settings

Free speech rights apply differently depending on the circumstance and whether you're a public employee or private employee.

If an employer is private — as most non-government employers are — an employer's ability to fire somebody for what they say in public "is fairly broad," according to Wisconsin Institute for Law and Liberty president and general counsel Rick Esenberg.

For public employees, there are more free speech rights — but it's complicated.

When are public employees protected by the First Amendment?

Whether public employees' speech is constitutionally protected depends on the context they are acting in, said Robert Dreschel, University of Wisconsin-Madison professor emeritus of journalism and mass communication.

Are they speaking as an employee about a work matter — or as a citizen, on a matter of public importance?

"It doesn't take long before things get complicated and difficult to sort out," Dreschel said. "It's certainly quite a clash of interests."

There are some tests involved regarding public employee free speech. They come from past cases Pickering v. Board of Education (1968) and Garcetti v. Ceballos (2006), according to Howard Schweber, who retired in June from his position as an associate professor of political science and legal studies at the University of Wisconsin-Madison.

In Pickering v. Board of Education, Schweber said, the Supreme Court came up with a two-part test.

The first question is whether the public employee — in this case, and in Pickering, a teacher — is speaking on a matter of public concern or expressing a private grievance.

"If it's merely a private grievance — 'the principal was rude to me'; 'the school board doesn't like me' or something, then it's not protected by the First Amendment," said Schweber.

However, Schweber said if a teacher is speaking about a matter of public interest, then a second question is posed — did the teacher's speech threaten to disrupt school operations?

"The reasoning, again, is pretty straightforward. There's a predominance and an essential interest in not letting the operation of schools be disrupted," Schweber said.

The Garcetti v. Ceballos case added a third question to the mix, Schweber said, which he said "tweaks the principle slightly": was the public employee acting in the course of their duties when they said what got them in trouble?

"If they were, then there's no First Amendment protection because when you're acting in the course of duties, you take instructions from your superiors and you're supposed to carry out your job as given to you. You don't have the freedom just because of the First Amendment to ignore your job requirements," Schweber said.

Lawyer, former professor weigh in on whether Tempel's free speech rights were violated

Wisconsin Institute for Law and Liberty president says firing likely improper

Esenberg gave his opinion about the case in a July tweet. Tempel would not have First Amendment rights if she spoke while on the job, he said. But even though it appears Tempel tweeted at home during off hours, "that doesn't resolve the issue by itself."

He said First Amendment protection is "a delicate balancing question" when a public employee speaks as a private citizen on a matter of public concern.

"A public employee can’t be completely deprived of her right as a citizen to speak on matters of public concern," Esenberg wrote.

"While I’m not sure we know the full grounds for her termination, the mere fact of disagreement – and that the district doesn’t like disagreement — ought not be enough to permit penalizing speech."

Esenberg said there would have "to be something special" about how Tempel spoke for her to lose First Amendment rights, and said based on the reported facts so far, that was not clear to him.

"I don’t think the after-the-fact reaction of others can be enough. And if her speech is protected, then certainly her termination for that speech was improper," Esenberg's tweet continued.

Former UW-Madison professor says school board violated teacher's First Amendment rights

Schweber said Tempel's free speech claim seems to pass the first test of Pickering v. Board of Education — whether Tempel was speaking on a matter of public concern.

As to whether what Tempel expressed created "a danger of disruption," he said he had "a very hard time" seeing that.

"It was a tweet. It wasn't in the midst of an assembly, for example, or to students in a classroom," Schweber said.

On whether Tempel was acting in the course of her duties — which would not be protected speech — Schweber said he thought no.

"It was a tweet sent on her own time, not while in the classroom, I assume. Not during school hours. Again, I assume. But even if she had been on school premises or during the school hours, sending tweets is not part of her job description. So sending this tweet is not within the course of her duties," Schweber said.

"So by what's called the Pickering-Garcetti test — that's the name of those two cases — it does not seem to be that there's any basis for the school board to act without having violated this teacher's First Amendment rights and I think that they did, and I think a court would have no trouble finding that," Schweber said.

Contact Alec Johnson at (262) 875-9469 or alec.johnson@jrn.com. Follow him on Twitter at @AlecJohnson12.

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This article originally appeared on Milwaukee Journal Sentinel: Were fired Waukesha teacher Tempel's First Amendment rights violated?