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Belmont Law Review

Abstract

This Article analyzes Kennedy’s implications for educators’ free speech rights at school. It is important to note, at the outset, that the Kennedy majority’s description of the actual facts at issue is highly debatable. Indeed, the majority presented a sanitized account of what actually occurred on the ground, minimizing the highly public nature of Kennedy’s prayers and the football players’ involvement in them. That said, if we take the facts as the majority presented them, and then move to the majority’s assessment of those facts, we emerge with an interesting gloss on Garcetti. Synthesizing Garcetti and Kennedy points toward a more nuanced way of discerning the line between when teachers are speaking purely as employees (in which case no First Amendment protection applies) and when they are simultaneously speaking as employees and private citizens (in which case the First Amendment does have a role to play). This Article argues that when the speech involves the delivery of the educational program itself to students (including both academics and extracurricular activities), it should be seen as pure employee speech. Examples falling into this category include curricular and pedagogical choices, classroom decorations, coaching techniques, and the ways in which students are addressed (e.g., pronouns). But there is also speech that falls outside this scope, even though it happens at school and students may therefore see or hear it. This includes, for instance, what educators choose to wear, the decoration of their own private offices, the pronouns that they use for themselves, and—as the Kennedy Court put it—“whether they “pray[] quietly over…lunch in the cafeteria.” In these latter situations, this Article suggests, the speech should be recognized as implicating enough of a “private citizen” component to give rise to a First Amendment interest, one that must ultimately be weighed against the school district’s interests in regulating the speech. The Article proceeds in four parts. Part I discusses the state of the law before the 2022 Kennedy decision. This includes the pre-Garcetti uncertainty over how to conceptualize teachers’ free speech rights at school, how Garcetti affected this analysis, and the rough post-Garcetti consensus that emerged from 2006 to 2022 as amplified by the “government speech” doctrine. Part II turns to Kennedy, examining the case through the lens of school district employees’ free speech rights. Part III suggests a new synthesis of Garcetti and Kennedy for analyzing this issue, proposing a framework that can guide school districts and courts as these sorts of speech controversies recur in the future. That framework uses, as its dividing line, whether the speech in question involves the delivery of the educational program to students. Part IV briefly concludes.

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