First Amendment issues with public employees are complicated.  First Amendment issues with unionized employees are more complicated.  First Amendment issues with unionized employees and students can be very complicated.  This is the issue facing the Becker Public Schools and the Becker Education Association after the district released a new communications plan for staff of the district.  While most of the policy was fairly innocuous, it included a directive that “employees may not make statements to the media, individuals, or entities outside the district relating to student or personnel matters.”

The union obviously took exception to this rule (otherwise it wouldn’t have sued), referring to it as a “gag order” and a restriction on teachers’ First Amendment rights.

In general, public employees are allowed to speak on matters of public concern without being restricted or subject to negative treatment from their employers.  However, the matter becomes more complicated when data privacy and labor laws become involved.

To begin, under PELRA, public employers are prohibited from “interfering, restraining, or coercing employees in the exercise of rights guaranteed under” the act.  Minn. Stat. §179A.06, subd. 1 allows for the expression of views by employees.  Under that section, public employees and their representatives may do the following:

Express or communicate a view, grievance, complaint, or opinion on any matter related to the conditions or compensation of public employment or their betterment, so long as this is not designed to and does not interfere with the full faithful and proper performance of the duties of employment or circumvent the rights of the exclusive representative.

Employees also “have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Minn. Stat. §179A.06, subd. 7.

Now, while we are not in possession of the entire policy, or the district’s interpretation of the policy with regard to employee speech, but with the above laws taken into consideration, there would be concern from employees who were not allowed to make any “statements to the media, individuals, or entities outside the district relating to student or personnel matters.”

The district had a right to be concerned about the dissemination of private information outside of the district.  Educational data is mostly private, and may only be released in limited circumstances.  Had the district created a policy solely limited to the dissemination private data, it possibly could have been okay.  However, with as broad as the language was (or was reported to be), it did not seem to be narrowly tailored enough to survive a challenge.

We have discussed First Amendment issues for public employees on this blog in the past.  All of the same issues that were present for other First Amendment cases with public employers were there in this case.  Ultimately, the policy change was withdrawn.

If you, or your organization are looking to craft a policy regarding employee speech, it is crucial to have the proper advice before disseminating it to employees.  Look to the guidance of Wiley Reber Law; where we have the experience to help your organization that works.